Khadeeja Beevi v. The State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944 ``` ## `CRL.MC NO. 4166 OF 2019` ``` [TO QUASH ANNEXURE A1 FINAL REPORT IN C.C.NO.1815/2013 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.III, ``` ## `NEYYATTINKARA]` ## `PETITIONER/1ST ACCUSED:` ``` KHADEEJA BEEVI AGED 50 YEARS W/O. MOHAMMED SALI, JASMINE MANZIL, CHAMAVILA, BALARAMAPURAM P.O., PALLICHAL VILLAGE, VENGANOOR DESOM, BALARAMAPURAM THIRUVANANTHAPURAM DISTRICT. BY ADVS. ABU MATHEW AJU MATHEW ``` ## `RESPONDENT/COMPLAINANT:` ``` THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM KOCHI 682 031. ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 29.07.2022, THE COURT ON 29.9.2022 PASSED THE FOLLOWING: ``` CRL.MC No.4166 of 2019 2 ## `O R D E R` ``` The petitioner is the 1st accused in C.C.No.1815/2013 pending before the Judicial First Class Magistrate Court-III, Neyyattinkara, which arises from Crime No.952/2011 of Balaramapuram Police Station. The offences alleged against the petitioner and the 2nd accusedarepunishableunderSections 465,468,471,201 r/w. Section 34 of the Indian ``` ``` Penal Code (IPC) and under Section 12(1)(b) of the Indian Passport Act, 1967. ``` ``` 2.The prosecution case is that, the 1st accused submitted a fake extract of her ``` ``` Admission Register from Luthern Lower Primary ``` ``` School, Athiyannur, before the Regional Passport Officer, Thiruvananthapuram, along with an application for passport. When the Police ``` CRL.MC No.4166 of 2019 3 ``` conducted an inquiry for the issuance of the ``` ``` passport, it was revealed that the said extract was fake, and the crime was registered on the basis of the same. After completing the investigation, Annexure-A1 final report was submitted. Cognizance thereon was taken by the learned Magistrate and the case is now pending trial. This Crl.M.C. is filed for quashing all further proceedings in Annexure-A1 final report as against the petitioner. ``` ``` 3.Heard Sri.Abu Mathew, the learned counsel for the petitioner and Sri.M.P. Prashanth, the learned Senior Public Prosecutor for the State. ``` ``` 4.The contention of the learned counsel for the petitioner is that, none of the offences alleged against her are not attracted from the allegations contained in Annexure-A1 final report and the materials produced along with the same. It is the case of the petitioner that the extract of the Admission Register, which was ``` CRL.MC No.4166 of 2019 4 ``` alleged to be a fake one, was obtained by her ``` ``` ten years ago through the 2[nd] accused when the same was required for the purpose of obtaining of an insurance policy. According to her, she ``` ``` was not aware that the said extract was a fake ``` ``` one, and the same was obtained by the 2nd accused. Her specific case is that, earlier, the 2nd accused, who is an LIC agent, approached the petitioner for taking an insurance policy and she and her husband agreed to take a policy. For the said purpose, the 2nd accused asked her for the documents showing the date of birth of the petitioner. She was not having any document indicating her date of birth. The 2nd accused asked her about the school in which she studied. She stated that she had studied only up to the 4th standard at Luthern Lower Primary School, Athiyannur. Thereupon, the 2nd accused agreed to obtain the extract of the school admission register from the said school and later, he got ``` CRL.MC No.4166 of 2019 5 ``` a stamp paper signed by the petitioner, stating that the same is required for applying for the same. Later, the 2nd accused obtained the Extract of the School Admission Register and handed over the same to her. However, due to financial stringency, the petitioner could not take any policy and therefore, she kept the extract of the Admission Register with her. Ten years later, when she wanted to go for the Hajj pilgrimage, she applied for a passport and at that time, to show the date of birth of the petitioner, she submitted this extract along with the application as she was under the bonafide belief that the same was a genuine one. Later, in the police inquiry, it was found that the same was fake and according to the petitioner, only when it was informed by the police that it was a fake certificate, she came to know about the same. Thus, it is contended that none of the offences alleged against the ``` CRL.MC No.4166 of 2019 6 ``` petitioner are attracted, as she submitted the ``` ``` extract of the Admission Register along with the application for passport, without knowing the falsity of the same. ``` ``` 5.I have carefully gone through the ``` ``` allegations contained in Annexure-A1 and the materials placed along with the same, including ``` ``` the statements of the witnesses recorded by the police under Section 161 Cr.PC. CW1 is the ``` ``` husband of the petitioner herein. He stated in ``` ``` tune with the case advanced by the petitioner as ``` ``` mentioned above. CW2 is a neighbour. He also ``` ``` stated the facts as mentioned above. CW3 is yet ``` ``` another neighbour and his statement is also to ``` ``` the effect that, the aforesaid extract was ``` ``` obtained by the 2nd accused for the purpose of ``` ``` taking an insurance policy and the petitioner ``` ``` was not aware of its falsity. CW6 is the CPO, ``` ``` Balaramapuram Police Station, who conducted the verification on the application of the ``` CRL.MC No.4166 of 2019 7 ``` petitioner for issuance of passport and found that the extract was fake. The statement of the said witness also substantiates the petitioner's case that she was unaware of its falsity until CW6 found out the same. All these witnesses have clearly stated that the petitioner is a person who is not having much education and is unable to read and write English. They also stated in unambiguous terms that she was unaware of the contents of the said extract and about the falsity of the same. Moreover, in the final report also, it is specifically mentioned that the petitioner herein was not arrested. The reason stated for not arresting the petitioner is that, during the investigation conducted by the Police, they were convinced that she applied for a passport along with the fake extract of the Admission Register without knowing the fake nature of the said certificate. ``` ``` 6.The offences alleged against the ``` ## CRL.MC No.4166 of 2019 8 ``` petitioner are for committing forgery and using ``` ``` a forged document with the knowledge of its falsity. It is also alleged that the petitioner ``` ``` furnishedfalseinformationbeforethe ``` ``` authorities concerned for obtaining a passport. ``` ``` As far as the offences punishable under Sections ``` ``` 465 and 468 of IPC are concerned, the said ``` ``` offences are about committing forgery and using ``` ``` the forged document for cheating. The ‘Forgery’ ``` ``` is defined under Section 463 IPC and as per the said provision, whoever makes any false documents or false electronic with intent to ``` ``` cause damage or injury to the public or to any ``` ``` person or to support any claim or title is ``` ``` deemed to have committed the offence of forgery. ``` ``` The expression “to make a false document” is defined under Section 464 IPC which reads as follows: ``` ``` “464. Making a false document.-[A person is said to make a false document or false electronic record - First- Who dishonestly or fraudulently- ``` CRL.MC No.4166 of 2019 9 ``` (a)makes, signs, seals or executes a document or part of a document; ``` ``` (b)makes or transmits any electronic record or part of any electronic record; ``` ``` (c)affixes any [electronic signature]on any electronic record; ``` ``` (d)makes any mark denoting the execution of a document or the authenticity of the [electronic signature] ``` ``` With the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or ``` ``` Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or ``` ``` Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]”. ``` ## CRL.MC No.4166 of 2019 10 ``` One of the basic requirements for attracting Section 464 of IPC is the dishonest intention or fraudulent intention on the part of the person who makes such a document. In this case, going by the allegations in the final report, it can be seen that, the document is alleged to have been created by the 2[nd] accused. Even as per the prosecution case, the petitioner engaged the 2[nd] accused to obtain the birth certificate of the petitioner from the school. It was the 2[nd] accused who obtained the same. There is no case for the prosecution that the petitioner ``` ``` obtained the said certificate. Even according to ``` ``` the prosecution, she was not aware of the falsity of the document until the Police informed the same. Therefore, under no ``` ``` circumstances offences punishable under Sections 465 and 468 of the IPC would get attracted as against the petitioner herein. ``` ``` 7.When coming to the question of the ``` CRL.MC No.4166 of 2019 11 ``` offence under Section 471 IPC, it is to be noted ``` ``` that, the same deals with a situation where the ``` ``` person fraudulently or dishonestly uses as genuine, any document that he knows or has ``` ``` reason to believe to be forged. In this case, as ``` ``` mentioned above even going by the prosecution case and also from the statements of the ``` ``` witnesses, it is evident that the petitioner was ``` ``` not aware of the false nature of the relevant ``` ``` document. Therefore, the offence under Section ``` ``` 471 of IPC also would not get attracted. ``` ``` 8.It is true that the final report contains ``` ``` Section 34 of IPC as well. However, from the ``` ``` prosecution case, it can be seen that, there was ``` ``` no common intention on the part of the accused ``` ``` persons while creating the said fake document. ``` ``` Even as per the prosecution case, the aforesaid ``` ``` certificate was obtained by the 2[nd] accused for the purpose of taking an insurance policy for ``` ``` the petitioner, and the petitioner used the said ``` CRL.MC No.4166 of 2019 12 ``` certificate after ten years for applying a ``` ``` passport. Therefore, no case of sharing a common intention by both the accused was revealed from ``` ``` the facts of the case. Here also, the fact that ``` ``` the petitioner was not aware of the falsity of ``` ``` the document is very much relevant. Therefore, I ``` ``` am of the view that the petitioner cannot be roped in as an accused even with the aid of Section 34 of IPC. ``` ``` 9.The remaining offence is under Section ``` ``` 12(1)(b) of the Indian Passport Act, 1967. The aforesaid provision would get attracted, only when a person knowingly furnishes any false information to obtain a passport or travel ``` ``` document. In this case, as mentioned above, the petitioner was not aware of the falsity of the document and therefore, the said offence also would not be attracted as against the petitioner. ``` ``` 10.In State of Haryana and Others v. Ch.Bhajan ``` ``` Lal and Others[(1992) Supp(1) SCC 335] ``` CRL.MC No.4166 of 2019 13 ``` the Hon'ble Supreme Court framed guidelines ``` ``` regarding the manner by which the exercise of the powers of the High Court in the matter of interfering with the investigation. The ``` ``` guidelines prescribed by the Hon'ble Supreme ``` ``` Court in paragraph 104 are extracted hereunder: ``` ``` “104. In the backdrop of the interpretation of the various relevant provisions of the Code under Chap.XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under S.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. ``` ``` 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. ``` ## `2. Where the allegations in the First` ## CRL.MC No.4166 of 2019 14 ``` Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156 (1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. ``` ``` 3.Wheretheuncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. ``` ``` 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2)of the Code. ``` ``` 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. ``` ``` 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or ``` CRL.MC No.4166 of 2019 15 ``` where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. ``` ``` 7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” ``` ``` On examining the materials placed on record, ``` ``` I am of the view that guidelines Nos.1,3 and 5 ``` ``` are applicable to the facts of this case. ``` ``` Therefore, the only irresistible conclusion ``` ``` possible is that the prosecution against the petitioner is a clear abuse of the process of law and hence the powers of this Court under ``` ``` Section 482 Cr.PC is to be invoked. ``` ``` In the result, this Crl.M.C. is allowed. ``` ``` Annexure A1 final report submitted in Crime ``` ``` No.952/2011 of Balaramapuram Police Station and ``` ``` all further proceedings in C.C.No.1815/2013 on the file of the Judicial First Class Magistrate ``` CRL.MC No.4166 of 2019 16 ``` Court No.III, Neyyattinkara as against the ``` ``` petitioner herein, are hereby quashed. ``` ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.MC No.4166 of 2019 17 ## `APPENDIX OF CRL.MC 4166/2019` ``` PETITIONER’S ANNEXURE: ``` ``` ANNEXURE 1 ``` ``` CERTIFIED COPY OF FINAL REPORT IN CRIME NO. 952 OF 2011 FILED IN C.C. NO. 1815 OF 2013 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.III, NEYYATTINKARA. ```