Moti Singh S/O Shri Budha Ram vs State Of Rajasthan
2021 Latest Caselaw 5499 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

   S.B. Criminal Miscellaneous Bail Application No. 14358/2021

Moti Singh S/o Shri Budha Ram, R/o House No. 397, Vijay Nagar
Colony, P.S. Atalband, District Bharatpur.
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through P.P.
                                                                   ----Respondent

For Petitioner(s) : Mr. M.M. Ranjan, Senior Advocate with Mr. J.K. Moolchandani For Respondent(s) : Mr. F.R. Meena, PP Mr. N.S. Dhakad for complainant(s)

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

01/10/2021 This application for anticipatory bail has been filed by the

petitioner apprehending his arrest in connection with F.I.R.

No.333/2017 registered at Police Station Atalband, District

Bharatpur for the offence under Section(s) 420, 467, 468 & 471 of

IPC.

Learned counsel for the petitioner submits that only

allegation against the petitioner is of submitting false affidavit

along with his nomination papers with the Returning Officer.

Relying on the judgment of this Court in case of S.B. Criminal

Miscellaneous (Petition) No.4631/2020: Aneesa Vs. State

of Rajasthan and Anr., dated 15.02.2021, learned counsel

submitted that mere submission of false affidavit with the

Returning Officer does not give rise to any cognizable offence and

prayed for benefit of pre-arrest bail.

(2 of 5) [CRLMB-14358/2021]

Learned Public Prosecutor assisted by learned counsel for

complainant opposing the bail application submitted that on

previous occasion also, the petitioner submitted false affidavit.

They submitted that in view of criminal record of the petitioner, he

does not deserve indulgence of pre-arrest bail.

Heard learned counsels for the parties and perused the

record.

Indisputably, only allegation against the petitioner is of

submitting false affidavit alongwith his nomination paper with the

Returning Officer. This Court has, in case of Aneesa (supra), held

as under:

"The learned counsels appearing for the respective parties are unanimous that controversy involved herein is squarely covered in case of Rekha Bano Vs. State of Rajasthan & Anr., S.B. Criminal Miscellaneous Petition No.1561/2019 dated 07.03.2019. It has been held in a case of Rekha Bano (Supra) as under:-

"There is no allegation in the entire FIR that the petitioner ever fabricated or forged any document. The only allegation against the petitioner is that she had wrongly deposed in the affidavit that she is mother of two children. Thus, according to the complaint, the petitioner had furnished a wrong information to the Returning Officer, who is a public official / public servant.

In the present case, no false evidence was given in any court of law. Furnishing wrong affidavit before the lawful authority which include public servant or swearing wrong fact are offences which fall under Chapter X of Indian Penal Code under the heading of 'CONTEMPT OF LAWFUL AUTHORITY OF PUBLIC SERVANTS'. The Chapter X of IPC contain offences from Section 172 to Section 190.

(3 of 5) [CRLMB-14358/2021]

The act of the petitioner prima facie will fall under Section 181 IPC. Section 181 IPC reads as under:-

"181. False statement on oath or affirmation to public servant or person authorised to administer an oath or affirmation.-- Whoever, being legally bound by an oath 1[or affirmation] to state the truth on any subject to any public servant or other person authorized by law to administer such oath 2[or affirmation], makes, to such public servant or other person as aforesaid, touching the subject, any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. "

This Court even if grant leeway to the prosecution, at best offences under Sections 171 and 182 IPC can also be invoked against the petitioner. No offence under Section 191, 192 and 193 IPC is made out, as the petitioner has not given evidence in any court.

Section 3 of the Indian Evidence Act, 1872 interpret "Evidence" as under:-

"Evidence".- "Evidence" means and includes- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."

Returning Officer which accepts nomination paper and before whom the petitioner had furnished affidavit is not Court, as Section 3 of the Indian Evidence Act, 1872 defines "Court" as under:-

"Court".- "Court" includes all Judges and Magistrates, and all persons except arbitrators, legally authorized to take evidence."

Thus, the petitioner had not given any evidence or furnished any document before any Court. Thus, wrongly

(4 of 5) [CRLMB-14358/2021]

FIR was registered for the offences under Sections 191, 192 and 193 IPC.

The petitioner has not forged and fabricated any document, therefore, the offences under Sections 464, 465, 468 and 471 IPC are attracted.

In view of specific offences defined under Section 177, 181 and 182 IPC, offence of cheating is also not made out. Therefore, no offence under Sections 419 and 420 IPC is made out.

From the facts and circumstances of the case, offence if any will not travel beyond Section 181 IPC and for the sake of argument, if maximum indulgence is granted to the prosecution, the offences may fall under Sections 177 and 182 IPC.

Section 195 Cr.P.C. specifically bar prosecution of offences under Sections 172 to 178 IPC, except upon complaint in writing by the public servant concerned. In the present case no complaint has been filed by the public servant, who in the present case is Returning Officer.

It will be apposite here to reproduce relevant portion of Section 195 Cr.P.C. as under:-

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy in to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; .......................

(5 of 5) [CRLMB-14358/2021]

In view of discussion made above, the investigating agency cannot proceed with the FIR No.09/2018 registered at Police Station Adarsh Nagar, Ajmer for the offences under Sections 191, 192, 193, 464, 465, 419, 420, 468 and 471 IPC. Consequently, the above said FIR is quashed alongwith all subsequent proceedings."

In view thereof, the petitioner deserves to be released on

pre-arrest bail.

Accordingly, the bail application is allowed and it is directed

that in the event of arrest of petitioner in connection with afore-

mentioned FIR registered at concerned Police Station, the

petitioner Moti Singh S/o Shri Budha Ram shall be released on

bail; provided he furnishes a personal bond in the sum of

₹1,00,000/- (Rupees One Lac only) together with two sureties in

the sum of ₹50,000/- (Rupees Fifty Thousand only) each to the

satisfaction of the concerned Investigating Officer/S.H.O. on the

following conditions :-

(i). that the petitioner shall make himself available for interrogation by a police officer as and when required;

(ii). that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or any police officer; and

(iii). that the petitioner shall not leave India without previous permission of the court.

(MAHENDAR KUMAR GOYAL),J

MADAN/59

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