- (1.) Due to outbreak of Coronavirus (COVID-19), the lawyers are not appearing in the courts.
(2.) Heard Mr. Suresh Pareek, Senior Counsel assisted by Mr. N.C. Sharma, learned counsel for petitioner through Video Calling as well as learned Public Prosecutor, who is present in the court.
(3.) Leaned Senior Counsel appearing on behalf of the petitioner submits that the issue involved in this criminal misc. petition has also been considered by the Co-ordinate Bench of this court in the of Rekha Bano Vs. State of Rajasthan & Anr, in S.B. Criminal Misc. Petition No.1561/2019 wherein vide order dated 07.03.2019, this Court has held as under:- "The present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No.09/2018 dated 10.1.2018 registered at Police Station Adarsh Nagar, Ajmer for the offences under Sections 191 , 192 , 193 , 464 , 465 , 419 , 420 , 468 and 471 IPC. Briefly stated, the petitioner contested General Election held in the year 2015 for the post of Sarpanch of Gram Panchayat Hatundi. The petitioner lost the election. After the result of election was declared, a private individual preferred a complaint upon which the court of Judicial Magistrate No.4, Ajmer passed order under Section 156(3) Cr.P.C. and consequently, the impugned FIR bearing No.09/2018 was registered at Police Station Adarsh Nagar, Ajmer. In the FIR, it is alleged that the petitioner on 17.1.2015 had filed an affidavit wherein she had affirmed that she had not concealed any fact from the Returning Officer and all the information furnished is correct to the best of her knowledge and belief. The complainant made a grievance that in the affidavit filed by the petitioner, in order to become eligible to contest election, wrongly it was sworn that she is mother of two children. The complainant alleged that in fact, the petitioner is mother of three children. The police in the present case has registered FIR for offences under Sections 191 , 192 , 193 , 464 , 465 , 419 , 420 , 468 and 471 IPC. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. 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 . 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 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; . . . . . . . . . . . . . . . . . . . . . . . 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." ;