High Court
Facts
1 cri appln no.1819.20.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1819 OF 20201.Dr. Deepa d/o Mohan Sharma,age 34 yrs, Occ. Doctor.2.Mohan s/o Ravidutta Sharma,age 60 yrs, Occ. Business.3.Geeta w/o Mohan Sharma,age 55 yrs, Occ. Household.Applicant nos.1 to 3 are residentof Sumit Apartment, 37, Huda Heights,Near Lotus Pond, Banjara Hills,Hyderabad - 500034.4.Vijay s/o Ravidutta Sharma,age 55 yrs, Occ. Business,N-1, 137 Sector -A,Cidco, Aurangabad.Applicants (orig accused 1 to 4)VERSUSKishorilal Bablani,adult, Indian Inhabitant,Age 67 yrs, Residing at 401,Kalika Plot no.12-A, Greater Bombay,Co-operative Housing Society Ltd.,Gulmohar Cross Road, No.4, JVPDScheme, Juhu, Mumbai - 400049.Respondent (complainant)….. Mr. A.D. Soman, Advocate for Applicants.Mr. P. G. Godhamgaonkar, Advocate Respondent.…..WITH CRIMINAL APPLICATION NO.9 OF 2023 Object 1 2 cri appln no.1819.20.odtMr. Kishorilal BablaniAdult, Indian Inhabitant Age: 70 years, residing at 401Kalika Plot N. 12-A, Greater BombayCoop. Housing Society Ltd,Gulmohar Cross Road, N-4JYPD Scheme JuhuMumbai – 400 049 Applicant(orig. complainant)VERSUS1.Dr. Deepa d/o Mohan SharmaAge : 34 years, occu. MedicalPractice.2.Mohan s/o Ravidutta Sharma Age : 60 years, occu: Business3.Geeta w/o Mohan Sharma Age: 55 years, occu. HouseholdNos.1 to 3 are resident of Summit Apartments, 37, HUDA Heights, Near Lotus PondBanjara Hills, Hyderabad, 500 0344.Vijay s/o Ravidatta Sharma,Age : 55 years, occu: Businessr/o : 137, Sector – A, N-1,Cidco, Aurangabad. Respondents(orig. accused no. 1 to 4)...Mr. P.G. Godhamgaonkar Advocate for ApplicantMr. A.D. Soman & G.V. Padalkar For Respondents.…CORAM :S. G. CHAPALGAONKAR, J. Dated :JANUAUARY 08, 2024.JUDGMENT :-1.Heard finally with consent of the parties. 3 cri appln no.1819.20.odt2.The applicants seek to invoke jurisdiction of thiscourt u/s 482 of Criminal Procedure Code to quash thecomplaint and challenged order dated 6.1.2020 passed by theJudicial Magistrate First Class, Aurangabad in CriminalM.A.No.2728 of 2018 thereby issuing process against theapplicants/accused for the offences punishable under sections465, 466, 468, 470, 471, 474 and 120-B of the Indian PenalCode and section 23 of Registration of Birth and Death Act,1969 (for short ‘the Act’).3.Facts leading to present case can be stated asunder :-The respondent/original complainant approachedthe Court of JMFC, at Aurangabad vide Criminal MA. No.2728of 2018 with prayer to issue directions to police station officerunder sections 156 (3) of the Criminal Procedure Code forregistration of the offence against applicants/accused. Inalternative, to issue process for the aforesaid offences. It is thecontention of the complainant that in year 2013 his son Sahilmarried with accused no.1-Dr. Deepa. However, marriagecould not be consummated as accused no.1 was allergic to betouched by any male counterpart and she used to repel anyadvances made by the Sahil. She told Sahil that her parentshave forcibly got her married. She always had repulsion tosexual intercourse. Even, she refused to go on tour with Sahilas per pre-booked honeymoon package. After few days ofmarriage, accused no.1 joined fellowship course at Bangalore.Sahil also shifted to Bangalore and stayed with her in a flat but
Legal Reasoning
11 cri appln no.1819.20.odtunder the orders of the competent authority, who had referredaccused no.1 for medical examination to Sasoon GeneralHospitals and B.J. Government Medical College and Hospital,Pune as well as Government Medical College and Hospital,Aurangabad. The reports of medical examination, which arebased on scientific and physical tests depicts sex of applicantno.1 to be ‘female.’ Although, decision of competent authorityis further subjected to challenge mainly on procedural groundsbefore this Court, no further orders are passed in the said writpetition. 11.The learned Magistrate while issuing the processobserved that the birth certificates issued in the year 1994 and2016 showing sex of accused no.1 as female are contrary to thebirth register maintained by the Aurangabad MunicipalCorporation. Pertinently, when impugned order of issuance ofprocess was passed on 6.1.2020, the order dated 6.9.2019passed by this Court in Writ Petition No.3914 of 2019 andconsequential correction in the birth register dated 18.11.2019was not brought to the notice of Magistrate. Apparently, theorder is passed in ignorance of supervening events surfacedafter filing of the complaint. Had the aforesaid material havebeen brought to the notice of the learned Magistrate,possibilities would have been different.12.Since this Court is dealing with prayer for quashingof complaint and consequential order of issuance of process, itwould not be necessary to much delve deep into matrimonial 12 cri appln no.1819.20.odtdispute going on between the parties or even validity, legalityor correctness of the order regarding correction of birthrecords. This Court would limit it’s consideration to the basicaverments in the complaint and would endeavor to find out ifany offence under sections 465, 466, 468, 470, 471, 474 and120-B of the IPC and section 23 of the Registration of Birthsand Deaths Act, 1969 can be made out against accused personsand whether there are fair chances of conviction based on suchaverments. As noted above, most part of the complaint whichruns into almost 21 pages is devoted to the background ofmatrimonial dispute between the parties. From paragraphno.13 of the complaint, allegations are made regarding birthcertificate dated 7.4.1994 and 14.12.2016 being fabricated andmanipulated documents inconsistent with original birth record.In entire complaint it is not alleged as to how these twodocuments have been fabricated by accused or used by them toprejudice the complainant or his family members. Thecomplaint merely state that such certificates were obtained inconnivance with the officers of the Municipal Corporation,which are inconsistent with original birth record. However,unless specific averments are made to show that suchcertificates were prepared or obtained with intention to cheatthe complainant or for commission of any further offence, itwould be difficult to hold that the offences for which processhas been issued can be made out against theapplicants/accused. 13 cri appln no.1819.20.odt13.The Sections 465 and 466 of Indian Penal Codeprescribes punishment for forgery and forgery of public record.The allegation of complaint in this regard may attract penaltyagainst officer of Municipal Corporation, who was in-charge ofpublic record or who prepared and issued birth certificates, butno process has been issued against any officer. Allegations incomplaint are insufficient to bring home ingredients ofdishonest or fraudulent intention of applicants when nothing isstated in complaint that document alleged to have been forgedhave been used for any purpose. Similarly, Section 468, 471and 474 would not attract in facts of this case unless fraudulentor dishonest intention of accused persons to use forgeddocument is specifically spelled out in complaint. The DivisionBench of this court while deciding with similar situation in caseof Syed Farooque V/s State of Maharashtra (AIR Online 2023Bom 587) observed as under:“7.In absence of any material on record toindicate that the petitioners had committedforgery within the meaning of Section 463 ofthe Code of Criminal Procedure, the chargesunder Sections 465, 468 and 471 would notsustain. There is also no material on recordto suggest that the petitioners herein hadinduced or deceived any person withdishonest or fraudulent intention. Hence, inour considered view, the allegations made inthe First Information report as well as theother material collected in the course of theinvestigation, do not disclose offences asalleged. In such circumstances, continuationof the proceedings would be sheer abuse ofthe process of Court.” 14 cri appln no.1819.20.odt14.The Supreme Court of India in the matter of Stateof Haryana and others v/s Ch. Bhajan Lal reported in AIR 1992Supreme Court 604, laid down broader principles for exerciseof inherent powers u/s 482 of Criminal Procedure Code whichreads as under :-1) Where the allegations made in thefirst information report or thecomplaint, even if they are taken attheir face value and accepted in theirentirety do not prima facie constituteany offence or make out a case againstthe accused.(2) Where the allegations in the firstinformation report and other materials,if any, accompanying the FIR do notdisclose a cognizable offence, justifyingan investigation by police officers underSection 156(1) of the Code exceptunder an order of a Magistrate withinthe purview of Section 155(2) of theCode.(3) Where the uncontrovertedallegations made in the FIR orcomplaint and the evidence collected insupport of the same do not disclose thecommission of any offence and makeout a case against the accused.(4) Where the allegations in the FIR donot constitute a cognizable offence butconstitute only a non-cognizableoffence, no investigation is permitted bya police officer without an order of aMagistrate as contemplated underSection 155(2) of the Code.(5) Where the allegations made in theFIR or complaint are so absurd andinherently improbable on the basis ofwhich no prudent person can ever reacha just conclusion that there is sufficient 15 cri appln no.1819.20.odtground for proceeding against theaccused.(6) Where there is an express legal barengrafted in any of the provisions of theCode or the concerned Act (underwhich a criminal proceeding isinstituted) to the institution andcontinuance of the proceedings and/orwhere there is a specific provision in theCode or the concerned Act, providingefficacious redress for the grievance ofthe aggrieved party.(7) Where a criminal proceeding ismanifestly attended with mala fideand/or where the proceeding ismaliciously instituted with an ulteriormotive for wreaking vengeance on theaccused and with a view to spite himdue to private and personal grudge.15.Further recently in case of Salib @ Shalu @ SalimV/s State of Uttar Pradesh and others (2023 SCC Online SC947) Supreme Court observed as under :- 28. At this stage, we would like to observesomething important. Whenever an accusedcomes before the Court invoking either theinherent powers under Section 482 of theCode of Criminal Procedure (CrPC) orextraordinary jurisdiction under Article 226of the Constitution to get the FIR or thecriminal proceedings quashed essentially onthe ground that such proceedings aremanifestly frivolous or vexatious orinstituted with the ulterior motive forwreaking vengeance, then in suchcircumstances the Court owes a duty to lookinto the FIR with care and a little moreclosely. We say so because once thecomplainant decides to proceed against theaccused with an ulterior motive for wreaking 16 cri appln no.1819.20.odtpersonal vengeance, etc., then he wouldensure that the FIR/complaint is very welldrafted with all the necessary pleadings. Thecomplainant would ensure that theaverments made in the FIR/complaint aresuch that they disclose the necessaryingredients to constitute the alleged offence.Therefore, it will not be just enough for theCourt to look into the averments made in theFIR/complaint alone for the purpose ofascertaining whether the necessary ingredientsto constitute the alleged offence are disclosed ornot. In frivolous or vexatious proceedings, theCourt owes a duty to look into many otherattending circumstances emerging from therecord of the case over and above the avermentsand, if need be, with due care andcircumspection try to read in between the lines. The Court while exercising its jurisdiction underSection 482 of the CrPC or Article 226 of theConstitution need not restrict itself only to thestage of a case but is empowered to take intoaccount the overall circumstances leading to theinitiation/registration of the case as well as thematerials collected in the course of investigation.16.In this backdrop, keeping in mind principles of lawenunciated in aforesaid judgments, it can be gathered from thedocuments on record that complainant had apprehension thatsuch certificates would be used in defence by accused no.1 inthe proceeding seeking nullity of the marriage. Therefore, inthe year 2019 he instituted the present complaint. Pertinently,the issue as to whether marriage between applicant no.1 andher husband Sahil is vitiated by fraud would be dealt with bycompetent Court of jurisdiction in the pending proceedingseeking nullity of marriage. Original record regarding birth ofaccused no.1 as well as subsequent changes therein can be 17 cri appln no.1819.20.odtappropriately considered in such proceeding. Therefore,further deliberation on this aspect would not be necessarywhile deciding the present proceeding. However, onconsideration of contents of the complaint, apparently,ingredients of the intentional forgery or forgery for cheating orforgery of public record or register does not attract. Even inabsence of use of the document, ingredients of section 474 ofIPC would not attract.17.The Section 23 of Registration of Birth and DeathAct would not attract against applicants/accused on basis ofallegations in complaint which are bereft to bring homenecessary ingredients to constitute such offence. The section23 provides for penalties for defaults in complying variousrequirements mandated under the scheme of the Act. Thewording of Section can be given here for ready reference.Section 23 in The Registration of Birthsand Deaths Act, 196923. Penalties —(1) Any person who—(a) fails without reasonable cause to give anyinformation which it is his duty to give underany of the provisions of sections 8 and 9; or (b) gives or causes to be given, for thepurpose of being inserted in any register ofbirths and deaths, any information which heknows or believes to be false regarding any ofthe particulars required to be known andregistered; or(c) refuses to write his name, description andplace of abode or to put his thumb mark in 18 cri appln no.1819.20.odtthe register as required by section 11, shallbe punishable with fine which may extend tofifty rupees.(2) Any Registrar or Sub-Registrar whoneglects or refuses, without reasonable cause,to register any birth or death occurring in hisjurisdiction or to submit any returns asrequired by sub-section (1) of section 19shall be punishable with fine which mayextend to fifty rupees.(3) Any medical practitioner who neglects orrefuses to issue a certificate under sub-section (3) of section 10 and any person whoneglects or refuses to deliver such certificateshall be punishable with fine which mayextend to fifty rupees.(4) Any person who, without reasonablecause, contravenes any provision of this Actfor the contravention of which no penalty isprovided for in this section shall bepunishable with fine which may extend toten rupees.(5) Notwithstanding anything contained inthe Code of Criminal Procedure, 1898 (5 of1898), an offence under this section shall betried summarily by a Magistrate.The perusal of allegations in the complaint no where makes outany offence against the applicants/accused. Therefore, orderissuing process for the aforesaid offences cannot be justified.Continuation of the criminal proceedings in such cases wouldbe abuse of process of law. The complaint being bereft to makeout offences alleged is liable to be quashed and set aside.Resultantly, criminal application no.1819 of 2020 succeeds.
Arguments
4 cri appln no.1819.20.odtin separate room. In March, 2014 accused no.1 accompaniedwith accused no.2 started residing separately at Bangalore. InDecember 2014, accused nos.2 and 3 send E-mails seekingdivorce by mutual consent. The complainant and his son Sahilagreed for the same. However, accused no.2 put pre-conditionraising demand of Rs.4 crores, but, finally agreed to settle atRs.50 Lakhs. Complainant accepted their proposal. Thereafter,accused no.2 expressed his desire to exchange major gift itemsof Gold, Silver and cash. Accordingly, receipts were generatedregarding handing over of the gift items. However, accusedpersons in their subsequent mails and telephonic conversationscontinued with demands for money and issued threats of filingfalse complaints. When the complainant refused to agree withthe illegal demands, false complaints under section 498-A ofthe IPC and Protection of Women From Domestic Violence Actcame to be filed. It is the contention of the complainant thatthere was nagging suspicion about conduct of accused no.1/Dr.Deepa that she was something amiss. The complainantobtained a copy of original birth register concerning accusedDr. Deepa. The entry dated 25.10.1984 appears at serialno.440 at page no.467 of Birth Register at AurangabadMunicipal Corporation. The birth entry shows male “M” childborn to Gita Mohan Sharma at Dumir Maternity and NursingHome. It is contention of complainant that on 7.4.1994accused nos. 2 and 3 illegally obtained the birth certificate fromWard Office No.5-B/Zone-7, Aurangabad MunicipalCorporation depicting sex of the child as Female. The birthregister maintained at head office do not show issue of any 5 cri appln no.1819.20.odtbirth certificate against said entry at serial no.440 of page 467which is a false and fabricated document. Complainantattempted to obtain information under RTI regarding theapplication submitted by accused for issuance of birthcertificate dated 7.4.1994, however, it is not provided. Even hisattempt to obtain computerized birth certificate of child bornand registered at serial no.440 of birth register for the month ofOctober, 1984 are not responded. It is the contention of thecomplainant that as per RTI information received to him on29.11.2016, an application was submitted by Shri VijayRavidutta Sharma for issue of birth certificate of Deepa MohanSharma alongwith Aadhar card and SSLC certificate etc.Gender is mentioned as ‘Female’. The application is filed in thename of Shri Mohan Ravidutta Sharma. The birth certificatedated 14.12.2016 has been prepared and issued dishonestlyand fraudulently by the Clerk and Ward Officer of theMunicipal Corporation, Aurangabad. Even, application in thename of Mohan Ravidutta Sharma bears forged signaturewhich has been done by Vijay Ravidutta Sharma/accused no.4.4.It is further contention of complainant that birthcertificate dated 14.12.2016 has been prepared by officer of theMunicipal Corporation i.e. accused nos.5 and 6. As such,accused nos.1 to 7 have committed the offence of forgery as persection 465 and 466 of the IPC in connivance with each other.False evidence in the form of birth certificate dated 14.12.2016is prepared by accused nos.1 to 4 in connivance with theofficers of the Municipal Corporation. The contention of the 6 cri appln no.1819.20.odtcomplainant is that birth certificate dated 7.4.1994 and14.12.2016 are inconsistent with entries in the statutoryrecords and have been illegally and fraudulently issued by theMunicipal Corporation ward Officer. Further, forwarding letterand form no.2 prescribed under the Act regarding Childdelivered by Smt. Gita Mohan Sharma on 25.10.1984 at DumirMaternity and Nursing Home, Aurangabad has been caused todisappear and destroyed by accused persons in connivance witheach other. As such, accused persons have committed theaforesaid offences. 5.The learned Magistrate initially directed thecomplainant to examine himself and other witnesses whilenegated the prayer to issue directions under sections 156 (3) ofthe Criminal Procedure Code. The complainant recorded hisstatement under section 200 of the Cr.P.C. in tune with thecontentions raised in the complaint. Accordingly, the learnedMagistrate observed that birth certificate dated 18.12.2016appears inconsistent with Form No.C of birth registermaintained by Aurangabad Municipal Corporation, Aurangabadas regards to the entry of sex of accused no.1, therefore, primafaice, there is forgery. Accordingly, issued process againstaccused nos. 1 to 4 while declined to do so in respect of theaccused nos. 5 to 7 for want of necessary sanction in terms ofsection 197 of the Criminal Procedure Code.6.Mr. Soman, learned counsel appearing for theapplicants would submit that there is matrimonial dispute 7 cri appln no.1819.20.odtbetween applicant no.1-Dr. Deepak and Sahil i.e. son ofrespondent/complainant. Proceedings are pending before theCourts at Hyderabad for divorce/dissolution/invalidation ofmarriage. He would submit that so far as entry in register ofbirths and deaths regarding applicant no.1 is concerned, therewas a clerical/typographical mistake while entering sex.Necessary application was moved for correction of the entry interms of section 15 of the Registration of Births Act, 1969 readwith Maharashtra Rules 2000. Registrar had referred applicantno.1 for medical examination. The Expert’s Committee atSasoon General Hospitals and B.J. Government Medical Collegeand Hospital, Pune as well as Government Medical College andHospital, Aurangabad have submitted their expert reports ofexamination confirming sex of applicant to be ‘female’. Inspiteof receipt of said reports, competent authority had not actedupon the reports. Therefore, writ petition no.3914 of 2019 wasfiled before this Court, in which directions were issued to thecompetent authority/Registrar to take decision upon theapplication of the petitioner within the period of three months.Competent authority has accordingly allowed the correction inthe entry in the birth register and sex of the applicant no.1 isentered as ‘female’ by replacing incorrect entry. He wouldsubmit that aforesaid decision of the Registrar is challenged bythe respondent/complainant in writ petition no.1694 of 2020.However, till this date, no further orders are passed by thisCourt. He would therefore urge that allegations in thecomplaint are baseless. No offence can be made out againstthe applicants. The learned Magistrate was not appraised with 8 cri appln no.1819.20.odtthe judgment of the Division Bench of this Court in WritPetition No.3914 of 2019 which is instrumental in carryingcorrections in the records. He would submit that so-called birthcertificates dated 7.4.1994 or 14.12.2016 never being used inany proceeding, particularly, it is not case of the complainantthat such document was ever used or acted upon in anymanner to prejudice anyone. He would, therefore, submit thatthe complaint is nothing but misuse of the process of law.7.Per contra, Mr. P. G. Godhamgaonkar, learnedadvocate appearing for the respondent/complainantvehemently opposed the prayers in application. He wouldsubmit that systematic fraud has been exercised by accusedpersons causing great mental torture and loss to thecomplainant and his family members. He would point out thatoriginal birth record of applicant/accused clearly depicts entryof ‘male’. However, suppressing this fact and her repulsion tosexual intercourse, marriage was solemnized only withintention to extract money from the complainant and his familymembers. Life of Sahil has been ruined due to greed ofaccused persons. He would submit that while original birthrecord dated 25.10.1984 continuous to depict birth of applicantno.1 as ‘male’, manipulated birth certificates dated 7.4.1994and dated 14.12.2016 have been prepared dishonestly andfraudulently in connivance of all accused persons. He wouldfurther submit that although in writ petition no.3914 of 2019this Court had issued directions to decide application receivedfrom the accused for correction of entry in the register of birth 9 cri appln no.1819.20.odtin terms of the procedure laid down under section 15 of theAct, correction is carried dehorse the procedural compliance's.He would therefore submit that the learned Magistrate hasrightly applied his mind to the material on record and rightlyissued the process against the applicants/accused.8.Mr. Godhamgaonkar, would further submit that theapplicants have approached this Court without availing theremedy of revision before the Sessions Court. The powersunder section 482 of the Cr.P.C. can be exercised in exceptionalcases. In the present case, no such grounds are available. Tobuttress his submissions, he relies upon various judgments ofthe Supreme Court of India to contend that the powers undersection 482 of the Cr.P.C. cannot be exercised as the Court ofappeal or revision but for a caution to do real and substantialjustice when no offence is disclosed by the complaint. Inpresent case averments in complaint clearly makes out offencesalleged. 9.Having considered the submissions advanced andafter going through the record of this application, apparently,there is serious matrimonial dispute between son ofcomplainant and applicant no.1. Admittedly, matrimonialproceedings are pending before the Court of competentJurisdiction at Hyderabad. Son of the complainant i.e. Sahilhas filed a proceedings under section 11 of the Hindu MarriageAct seeking declaration of nullity of the marriage vide MCANo.4548 of 2016 and applicant no.1-Dr.Deepa has filed petition 10 cri appln no.1819.20.odtunder section 13 (i)(ia) of Hindu Marriage Act seeking decreeof divorce on the ground of cruelty. Both proceedings areinstituted in the year 2016. In nutshell, allegations in thecomplaint are that accused no.1 is born male. Original entry inbirth register depicts said fact. However, accused persons inconnivance with the officers of the Municipal Corporationobtained birth certificates depicting accused no.1 to be ‘female’.When proposal for marriage of accused no.1 with son ofcomplainant was discussed, the aforesaid facts weresuppressed. It is only after marriage, complainant and hisfamily members came to know her reluctance to consummatethe marriage and her problem on sex issue. According to thecomplainant, systematic fraud has been exercised by accusedpersons only with intention to extract money. 10.Careful consideration of contents of the complaintwould show that there are no allegations/avernments toindicate that birth certificates dated 18.12.2016 or 7.4.1994were used by accused persons as against the complainant or hisfamily members as an instrument in commission of offence.There are no details as regards to birth certificate dated7.4.1994 being used by the accused persons in any proceedingor at the time of marriage. The certificate dated 18.12.2016 isalleged to have obtained subsequent to the marriage, however,complainant nowhere prescribes that such certificate was usedknowing it to be false for any purpose. Pertinently, entry inoriginal birth certificate dated 25.10.1984 is now corrected andsex of accused no.1 is shown as ‘female’. The change is effected
Decision
19 cri appln no.1819.20.odt18.So far as criminal application no.9 of 2023 isconcerned, since complaint in Criminal M.A. No.2728 of 2018dated 24.12.2018 itself is quashed, prayer in CriminalApplication no.9 of 2023 to quash and set aside the impugnedorder dated 13.10.2022 passed on Exhibit-10 in Cri.M.A.No.2728 of 2018 thereby seeking continuation of proceedingdehorse stay order in criminal application no.1819 of 2020does not survive. Hence, Criminal application no.9 of 2023 isdisposed off as rendered infructuous. Hence, the followingorder.O R D E R i.Criminal application no.1819 of 2020 is herebyallowed in terms of prayer clause “A”. Criminalapplication accordingly disposed off.ii.Criminal application no.9 of 2023 is disposed off asinfructuous. ( S. G. CHAPALGAONKAR ) JUDGE…aaa/-