SAXENA, J. - (1.) HEARD. Perused the record of the learned lower court.
(2.) THIS petition filed under Section 482 Cr. P. C. has been directed against the order dt. 8. 10. 92 passed by the learned Civil Judge-cum-Chief Judicial Magistrate, Bali in Criminal Original Case No. 311/86, whereby he took cognizance against petitioner Mohd. Nazim Khan, the then Vikas Adhikari, for the offences u/ss. 420, 468, 471 and 120-B IPC. It appears that the S. D. M. , Bali by his letter dated 29-8- 86 informed the S. H. O. , P. S. Bah that one Sardar Mal, who is by caste Rawal Brahmin , procured a certificate dated 12. 7. 81 (Ex. P. 4) from Sarpanch, Gran Panchayat, Sesli to the effect that he was a member of the Scheduled Caste and that on the basis of certificate Ex. P. 4, he also issued certificate dt. 17. 7. 81 in favour of Sardarmal and that thereupon the latter improperly enjoyed the facilities provided by the State Govt, to a member of the Scheduled Caste. He also mentioned in his letter that the said Sardar Mal has deliberately shown his caste as 'rawal', which is included in the Schedule of the Scheduled Castes for Rajasthan and thus dishonestly cheating and misrepresenting wrong facts to the officers, has fradulently procured the said certificate. The S. H. O. registered crime No. 109. During investigation, the police also examined Ota Ram, Ex-Sarpanch, Gram Panchayat Sesli, who had issued the certificate dt. 12. 7. 81 and petitioner Mohd. Nazim Khan,the then Vikas Adhikari, Panchayat Samiti, Bali, who had countersigned the same. After usual investigation, the police submitted a challan against accused Sardarmal for the offences u/ss. 420, 468 and 471 IPC before the trial Magistrate. During trial, the prosecution examined PW 1 Mohan Rawal, PW 2 Filter Mal, PW 3 Visa Lal and PW 4 Ota Ram. Ota Ram deposed that he had issued the certificate dated 12. 7. 81 on the basis of the Group Sachiv's recommendation and after checkmg that the caste 'rawal' was included in the Scheduled Caste under the Rajasthan Panchayat Act. He further deposed that accused Sardar Mal had shown his caste as 'rawal'. PW 4 Ota Ram was declared hostile. The Addl. P. P. , filed an application dt. 30. 10. 91 before the learned A. C. J. M. praying that Ota Ram in collusion with accused Sardar Mal had fradulently issued a wrong and forged certificate, though there was ample evidence on record that Sardar Mal was 'brahmin Rawal' and , as such, cognizance for the offences u/ss. 420, 468, 471 r/w sec. 34 be also taken against Ota Ram. The learned A. C. J. M. by his impugned order dated 8. 10. 92 took cognizance against Ota Ram, Ex Sarpanch as well as against the petitioner, for the offences u/ss. 420, 468, 471 and 120-B IPC. Aggrieved by the said order, the petitioner has filed this petition. I have heard Mr D. S. Shishodia, Sr. Advocate, and Mr. S. M. Singhvi, learned P. P. at length and carefully perused the record of the lower court. The learned P. P. has not supported the impugned order and submitted that a hyper-technical view has been taken by the learned Magistrate. In my considered opinion, the learned Magistrate has failed to correctly appreciate, assess and evaluate the evidence collected by the investigating officer and the evidence recorded during trial. There is not an iota of evidence to infer that petitioner Mohd. Nazim Khan, who was the then Vikas Adhikari, Panchayat Samiti, Bali was a party to any criminal conspiracy to commit an offence of cheating or forgery of a valuable security for the purpose of cheating or for using as genuine any document, which was known to be forged. As a matter of fact, the investigating officer had recorded the statement of the petitioner u/s. 161 Cr. P. C. and included his name in the calendar of witnesses. The petitioner in the capacity of Vikas Adhikari, Panchayat Samiti, Bali had simply countersigned the signatures of Ota Ram, the then Sarpanch on the certificate dated 12. 7. 71. He was not the author of that certificate. The P. P. in his application dt. 30. 10. 91 has also neither alleged that any offence was made out against the petitioner nor requested for taking congizance against him. Since P. W. 4 Ota Ram did not support the prosecution evidence , he was declared hostile and thereupon the P. P. filed application for taking congizance against him. The learned Magistrate, therefore, without a fringe of evidence against the petitioner, has taken cognizance against him for the aforementioned offences, which are not at all made out against him even prima facie. In such circumstances, the impugned order is not based on record and the same is illegal, incorrect, improper and inappropriate. The impugned order is, therefore, tantamount to abuse of the process of the court. Hence, to secure the ends of justice, the impugned order cannot be sustained.
(3.) IN the result, I allow this petition, quash the order dt. 8. 10. 92 passed by the learned ACJM, Bali. The record of this case be immediately sent back to the trial Magistrate, who is directed to expedite the trial of this case. .;