# Balwant Rai v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 747
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-12
- **Bench:** Bharat Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balwant-rai-v-state-of-u-p-anr-43926
- **Pages:** 9

## Headnote

748 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 218 IPC - Ingredients Not Made Out Against Investigating Officer Who Formed Opinion
on Evidence Collected by Previous Investigators - Charge Sheet and Cognizance Orders
Quashed - Essential ingredients of Section 218 IPC require: (i) public servant charged with preparation of
any record or writing; (ii) he must frame such record in a manner he knows to be incorrect; and (iii) done
with intent to cause, or knowing it to be likely to cause, loss or injury to the public or any person; applicant
(Circle Officer/Deputy Superintendent of Police) took over investigation of Case Crimes No. 211, 212 and 213
of 1995 in 1996 after three earlier Investigating Officers had already collected almost entire evidence;
applicant recorded only statements of accused persons (which are not admissible evidence under the Indian
Evidence Act) and formed opinion on basis of evidence collected by predecessors and submitted charge sheet;
Held, forming opinion on available evidence does not attract ingredients of Section 218 IPC; to constitute
offence under Section 218 IPC it is not enough to prove that entry or over-writing is incorrect - there must
be intention to cause or likely to cause loss or injury to some person; no evidence of any forging, fabrication
or mutilation; allegation of mens-rea completely absent; no evidence that applicant framed incorrect records
with intention to save any person from punishment or property from forfeiture; criminal prosecution launched
without any lawful basis is an abuse of process of court; charge sheet and cognizance orders quashed. (Paras
15-23)
Investigating Officer Free to Form Any Opinion on Available Material - Cannot Be Criminally
Prosecuted if Decision Turns Out to Be Wrong - Investigation Exclusively Within Domain of
Police Officer - Investigating officer cannot be forced to form a particular kind of opinion; he is free to form
any opinion after interpreting available evidence; whether such opinion sustains during trial or not is a
different matter; if an officer faithfully discharges his duty, he or she cannot be criminally prosecuted even if
his/her decision turns out to be wrong; investigation is the field exclusively reserved for police officers and
their powers are unfettered so long as legitimately exercised in strict compliance with provisions of Cr.P.C. -
courts are not justified in obliterating the track of investigation - as held in State of Haryana & Others vs.
Bhajan Lal & Others, 1992 Supp.(1) SCC 335; this practice of initiating criminal proceedings without showing
any material of malafide motive is wrong and cannot be encouraged. (Paras 18-21)
Clause 1(3) of Paragraph 486 of U.P. Police Regulations - Rule Applicable Only to Departmental
Proceedings - Criminal Prosecution Cannot Be Set Aside on Ground of Investigation by Officer
Lower in Rank - Contention that investigation conducted by officer lower in rank than applicant (who was
Deputy Superintendent of Police) is bad in law under clause 1(3) of Paragraph 486 of U.P. Police Regulations,
repelled; relying on State of U.P. vs. Surendra Pal Singh, 1989 AIR 811, Apex Court has clearly held that this
rule is applicable only in departmental proceedings and that criminal prosecution cannot be set aside on the
ground that investigation had been conducted by a person lower in rank of that of the applicant. (Para 22)

Application Allowed

Case Law Discussed:

## Text

5 All. Balwant Rai Vs State Of U.P. & Anr.

747
 this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before
the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the
allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same
might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the
FIR and the charge sheet as has been submitted makes out a prima facie case against the accused at this
stage and there appear to be sufficient ground for proceeding against the accused. I do not find any
justification to quash the charge sheet or the proceedings against the applicants arising out of them as the
case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

21. The prayer for quashing the same is refused as I do not see any abuse of the court's process
either.

22. However, it is observed that if the bail has not been obtained as yet, the accused may appear
before the court below and apply for bail within two months from today. The court below shall make an
endeavour to decide the bail application on the same day, if possible, keeping in view the observations
made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P., 2004(57)
ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal
Kamlendra Pratap Singh Vs. State of U.P., 2009(3) ADJ 322 (SC).

23. In the aforesaid period or till the date of appearance of the accused in the court below,
whichever is earlier, no coercive measures shall be taken or given effect to.

24. With the aforesaid observations this application is finally disposed off.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.05.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.

Application U/S 482 No.- 18519 Of 2005

Balwant Rai ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Satya Prakash, Satya Prakash Srivastava

Counsel for the Opposite Parties:
Government Advocate
.................................
748 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 218 IPC - Ingredients Not Made Out Against Investigating Officer Who Formed Opinion
on Evidence Collected by Previous Investigators - Charge Sheet and Cognizance Orders
Quashed - Essential ingredients of Section 218 IPC require: (i) public servant charged with preparation of
any record or writing; (ii) he must frame such record in a manner he knows to be incorrect; and (iii) done
with intent to cause, or knowing it to be likely to cause, loss or injury to the public or any person; applicant
(Circle Officer/Deputy Superintendent of Police) took over investigation of Case Crimes No. 211, 212 and 213
of 1995 in 1996 after three earlier Investigating Officers had already collected almost entire evidence;
applicant recorded only statements of accused persons (which are not admissible evidence under the Indian
Evidence Act) and formed opinion on basis of evidence collected by predecessors and submitted charge sheet;
Held, forming opinion on available evidence does not attract ingredients of Section 218 IPC; to constitute
offence under Section 218 IPC it is not enough to prove that entry or over-writing is incorrect - there must
be intention to cause or likely to cause loss or injury to some person; no evidence of any forging, fabrication
or mutilation; allegation of mens-rea completely absent; no evidence that applicant framed incorrect records
with intention to save any person from punishment or property from forfeiture; criminal prosecution launched
without any lawful basis is an abuse of process of court; charge sheet and cognizance orders quashed. (Paras
15-23)
Investigating Officer Free to Form Any Opinion on Available Material - Cannot Be Criminally
Prosecuted if Decision Turns Out to Be Wrong - Investigation Exclusively Within Domain of
Police Officer - Investigating officer cannot be forced to form a particular kind of opinion; he is free to form
any opinion after interpreting available evidence; whether such opinion sustains during trial or not is a
different matter; if an officer faithfully discharges his duty, he or she cannot be criminally prosecuted even if
his/her decision turns out to be wrong; investigation is the field exclusively reserved for police officers and
their powers are unfettered so long as legitimately exercised in strict compliance with provisions of Cr.P.C. -
courts are not justified in obliterating the track of investigation - as held in State of Haryana & Others vs.
Bhajan Lal & Others, 1992 Supp.(1) SCC 335; this practice of initiating criminal proceedings without showing
any material of malafide motive is wrong and cannot be encouraged. (Paras 18-21)
Clause 1(3) of Paragraph 486 of U.P. Police Regulations - Rule Applicable Only to Departmental
Proceedings - Criminal Prosecution Cannot Be Set Aside on Ground of Investigation by Officer
Lower in Rank - Contention that investigation conducted by officer lower in rank than applicant (who was
Deputy Superintendent of Police) is bad in law under clause 1(3) of Paragraph 486 of U.P. Police Regulations,
repelled; relying on State of U.P. vs. Surendra Pal Singh, 1989 AIR 811, Apex Court has clearly held that this
rule is applicable only in departmental proceedings and that criminal prosecution cannot be set aside on the
ground that investigation had been conducted by a person lower in rank of that of the applicant. (Para 22)

Application Allowed

Case Law Discussed:
1. State of Haryana & Others vs. Bhajan Lal & Others, 1992 Supp.(1) SCC 335
2. S.P. Singh vs. State of U.P. and others, AWC 1987 page 1099
3. State of U.P. vs. Surendra Pal Singh, 1989 AIR 811

(Delivered by Hon'ble Bharat Bhushan, J.)

1. By means of this application, the applicant has prayed for quashing of the order dated
10.8.2005 passed by Secretary, Home (Police), Uttar Pradesh, Lucknow and the charge sheet no. 28
of 2005 arising out of Case Crime No. 84 of 2001, under Section 218 IPC, P.S. Kotwali, District
Banda as well as the cognizance orders dated 20.9.2005 and 26.9.2005 passed by learned Chief
Judicial Magistrate, Banda in criminal Case No. 3136 of 2005.
5 All. Balwant Rai Vs State Of U.P. & Anr.

749
2. The factual matrix of the case, relevant for the disposal of this application is that on
29.6.1995 the applicant was posted as Circle Officer (Police), Naraini, District Banda and on
7.8.1995 the applicant was transferred from District Banda to the Intelligence Department and was
posted in Intelligence Head Quarter, Lucknow but again on 30.1.1996 he was transferred back to
District Banda as Circle Officer (Police), Naraini, Banda. It is alleged that on 29/6/1995, an FIR
was lodged by one Parashuram Verma, Station Officer, P.S. Kotwali Dehat, District Banda against
Mayyadeen, Chhota, Ram Prakash, Ram Babu Bhat regarding an incident dated 28.6.1995
allegedly committed at about 11 p.m. vide Case Crime No. 211 of 1995 under Sections 147, 148,
149, 307 IPC, Case Crime No. 212 of 1995, under Section 25 of Arms Act and Case Crime No. 213
of 1995, under Section 30 of Arms Act. The investigation of aforesaid cases was carried out by one
Sri A. B. Singh, Deputy Superintendent of Police (Circle Officer), Baberu, District Banda vide
order dated 30.6.1995 passed by Superintendent of Police, Banda. It is further alleged that on
27.8.1995, the investigation was transferred from Mr A. B. Singh, Circle Officer, Baberu to another
Circle Officer (Sadar), District Banda namely Kripa Ram Yadav and this fact was noted in the case
diary at Parcha No. 5 by the earlier Investigating Officer. The newly instructed Investigating
Officer recorded the statement of various witnesses during his investigation. It is further alleged
that after the retirement of Kripa Ram Yadav, the Superintendent of Police, Banda directed one
Salig Ram Verma, the Circle Officer, City, Banda to conduct the investigation. It is further alleged
that on 4.2.2996, the Superintendent of Police, Banda modified his earlier order dated 19.1.1996
and transferred the investigation to the applicant, who was then posted as Circle Officer, Naraini,
Banda. The applicant is said to have took the investigation in his hand on 6.2.1996 and made the
entry in this respect in the case diary at parcha no. 11 on 6.2.1996 and completed the investigation
and finally submitted the charge sheet against Ram Prakash, Chhota, Ram Babu Bhat on 6.6.1996
under Sections 147, 148, 149, 307 IPC and against Kamal Singh under Section 30 of Arms Act in
the court upon which learned Magistrate took the cognizance under Section 190 Cr.P.C. and
thereafter committed the case to the court of session where the case was registered as Sessions Trial
No. 254 of 1996 (State Vs Chhota and others) and accordingly trial court passed an order dated
24.1.2001 directing framing of charges against the accused persons.

3. It is further alleged that thereafter one Smt Suganiya wife of Bhaluwa Kumhar lodged
an FIR after the death of one of the injured namely Maiyyadeen on 29.6.1996 against Station
Officer of Police Station Kotwali Dehat, District Banda namely Parasuram Verma and other police
personnel which was registered as Case Crime No. 214 of 1995, under Section 302 IPC, P.S.
Kotwali Dehat, District Banda. Which was initially investigated by Kripa Ram Yadav, the Circle
Officer, Sadar, District Banda pursuant to the order dated 30.6.1996 passed by Superintendent of
Police, Banda (In short S.P., Banda) till his superannuation and thereafter vide order dated
19.1.1996 of S.P. Banda the Investigation was given to one Salig Ram Verma, the Circle Officer,
Banda and further by the order dated 4.2.1996 of S.P. Banda, the applicant was deputed to conduct
the investigation of the said case.

4. Applicant initiated the investigation on 6.2.1996 but again on 7.2.1996, the
Superintendent of Police, Banda passed an order that the Investigation of the said case will now be
conducted by the Inspector ACCO, Jhansi. The said fact was noted by the applicant in Parcha No. 6
750 INDIAN LAW REPORTS ALLAHABAD SERIES
on 8.2.1996 and thereafter the applicant did not prepare any parcha in the said case. Subsequently,,
the investigation was transferred to the CBCID. In the meantime the local police of District Banda
submitted the charge sheet under Section 304 IPC 13.10.1996 against Sri Parasuram Verma, the
Station Officer of Police Station Kotwali Dehat, Banda whereupon the cognizance was taken and
the matter was committed to the court of session where the case was registered as Session Trial No.
518 of 1995. Respondent no. 2, J. P. Yadav, Inspector of CBCID, Section, Allahabad moved an
application requesting the court to give him the prosecution papers in connection with the
investigation in the matter pursuant to the direction of the State Government. The said request was
not heeded by the learned court and the court below rejected the application by passing a detailed
order on 26.9.1997.

5. It is alleged that the respondent no. 2 also completed the investigation of Case Crime No.
214 of 1995, which was registered as C.B. No. 383 of 1997, under Sections 147, 148, 149, 452,
342, 218, 304 IPC and completed the investigation and prepared the parcha on 26.11.2001.
However, on 14.11.2000, the Government sent a letter to the Superintendent of Police, CBCID,
Lucknow informing him of his decision to withdraw the prosecution of Case Crime No. 211 of
1995 and 213 of 1995 and the Sessions trial arising therefrom, which was pending in the court of
Special Judge, Banda. The said letter was communicated by the CBCID to the District Magistrate,
Banda. In the meantime, learned ADGC (Criminal), Banda moved an application for withdrawal of
the said case on 28.3.2001 and on the same date court below passed an order acquitting the accused
persons chargesheeted in the said case.

6. However, respondent no. 2 is said to have sent a letter to the Superintendent of Police,
Banda to register an FIR against the applicant under section 218 IPC alleging that the applicant had
not properly investigated the case Crime No. 211 of 1995, under Section 147,148,149,307,412 IPC
and Case Crime No. 213 of 1995, under Section 30 of Arms Act and by forging the evidence
submitted the charge sheet against accused persons namely Ram Prakash, Ram Babu, Chota and
one Kamal Singh, and the prosecution against these accused persons was later on withdrawn by the
Government vider order dated 14.11.2000. Whereupon an FIR was lodged against the applicant
vide Case Crime No. 84 of 2001, under Section 218 IPC at P.S. Kotwali Dehat, District Banda.
After obtaining necessary sanction, the investigation was conducted by the CBCID and subsequent
to the investigation charge sheet was submitted on 20.9.2005 before the court of learned CJM,
Banda, upon which cognizance was taken by the learned Magistrate vide orders dated 20.9.2005
and 26.9.2015 against the applicant. These orders and the subsequent proceedings are under
challenge before this court.

7. Heard Sri O. P. Singh, learned Senior Advocate assisted by Sri S.P. Srivastava, learned
counsel for the applicant and learned AGA for the State.

8. It is contended by learned counsel for the applicant that the applicant being the
Investigating Officer of Case Crime No. 211 & 213 of 1995 has rightly submitted the charge sheet
against the accused persons upon which the court below took cognizance and on committal learned
trial court proceeded to frame charges against the applicants and fixed the date 28.03.2001 for
5 All. Balwant Rai Vs State Of U.P. & Anr.

751
hearing but the ADGC (Criminal) moved an application under Section 321 Cr.P.C. for withdrawal
of the case and the trial court permitted withdrawal of the Sessions Trial No. 254 of 1996 and
Sessions Trial No. 255 of 1996 and also acquitted the accused Chhotey, Ram Prakash and
discharged one of accused namely Komal Singh vide order dated 28.3.2001 without perusing the
material on record.

9. It is further contended by learned counsel for the applicant that the applicant took the
investigation on 6. 2.1996 and he did not record any evidence but simply recorded the statement of
accused persons and submitted the charge sheet on the basis of the investigation conducted by two
earlier Investigating Officers. It is further submitted that there is no allegation against the applicant
either in the application of ADGC (criminal) moved before the learned Sessions Judge or in the
letter of State Government dated 14.11.2000 that the applicant conducted a fishy investigation and
prepared false evidence in submitting the charge sheet. It is further submitted that the proceedings
of Criminal Case No. 313 of 2005, under Section 218 IPC against the applicant is nothing but an
abuse of the process of the court.

10 It is further submitted that no proper sanction under Section 197 Cr.P.C. was obtained
for initiating prosecution against the applicant and further the matter was investigated by an officer
who is lower in rank than the applicant who was at that time Deputy Superintendent of Police
hence the investigation carried out by the respondent no. 2 is illegal in view of the clause 1(3) of
the paragraph 486 of the UP Police Regulations and is liable to be quashed.

11. Learned counsel for the applicant strenuously contended that the allegations in the
FI.R. even if they are taken at their face value and accepted in their entirety do not prima facie
constitute the offence under Section 218 I.P.C. Thus, taking cognizance of an offence under
Section 218 I.P.C. by the learned Magistrate is without any material on record.

12. Learned A.G.A. repudiates the submissions made as above and contended that the
applicant while posted as circle officer by misusing his position forged the evidence and illegally
roped the accused persons in false criminal case. The respondent no. 2 has collected sufficient
credible evidence prima-facie showing complicity of the applicant in the crime and therefore, at
this stage it cannot be said that no offence is made out against the applicant.

13. Learned A.G.A. has further argued that at this stage the disputed defence available to
the applicant cannot be considered for deciding the application under Section 482 of the Code. The
scope of exercising inherent powers under Section 482 is very limited. Section 482 itself laid down
the scope under which the powers can be exercised which are as under :

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of Court; and

(iii) to otherwise secure ends of justice.
752 INDIAN LAW REPORTS ALLAHABAD SERIES

The case of the applicant does not fall under any of the conditions enumerated as
above and therefore, the application deserves to be dismissed with special cost.

14. I have given my thoughtful consideration to the rival submissions made by the learned
counsel for both the sides and I have also been taken through the materials on record.

15. Perusal of the material on record as also the facts noted herein above would disclose
that it is not disputed that the investigation of Case Crime No. 211 of 1995 under Sections 147,
148, 149, 307 IPC, Case Crime No. 212 of 1995, under Section 25 of Arms Act and Case Crime
No. 213 of 1995, under Section 30 of Arms Act was initially conducted by three different
Investigating Officers and finally vide order dated 06.2.1996 the applicant is said to have taken the
investigation in his hand and made the entry in this respect in the case diary at parcha no. 11 on
6.2.1996 and after going through the case diary scribed by his predecessors completed the
investigation and finally submitted the charge sheet against Ram Prakash, Chhota, Ram Babu Bhat
on 6.6.1996 under Sections 147, 148, 149, 307 IPC and against Kamal Singh under Section 30 of
Arms Act on the basis of available evidence on record. Not only this, the applicant is said to have
noted the entire evidence collected by his predecessors in the case diary at Parcha No. 12 on
12.02.1996. However, subsequent parchas of case diary further reveal that the applicant while
doing the investigation of aforesaid case crimes made a request to the Superintendent of Police,
Banda to transfer the investigation of aforesaid cases to other Circle Officer on the ground of
change of his Circle. Parcha No. 14 of the Case diary further discloses that the Investigation of
Case Crime No. 214 of 1995 under Section 302 IPC was transferred to C.B.C.I.D. on 03.021996
and looking to the gravity of offence applicant himself requested the Superintendent of Police,
Banda to transfer the investigation of case Crime Nos. 211 of 1995, 212 of 1995 and 213 of 1995
from Civil Police to CBCID. The available material on record would further disclose that the
applicant had been entrusted with the investigation in the year 1996 and prior to this, the
Investigation was carried out out by three different Investigating Officers. The applicant is said to
have taken the accused persons on remand from jail who were in jail in connection with some other
cases and recorded their statement and finding that prima facie cognizable offence is made out
against the accused on the basis of available material on record, submitted the charge sheet against
them upon which learned Magistrate took cognizance and trial was initiated.

16. Perusal of the record would also disclose that the State Government vide order dated
14.11.2000 directed the State Prosecution to withdraw the prosecution for Crime Nos. 211 of 1995
& 213 of 1995 (Sessions Trial No. 254 of 1996) and acting upon the said letter Public Prosecutor
moved an application under Section 321 Cr.P.C. for withdrawal of the cases and the trial court
permitted withdrawal of the Sessions Trial No. 254 of 1996 and Sessions Trial No. 255 of 1996 and
also acquitted the accused Chhotey, Ram Prakash and discharged one of accused namely Komal
Singh vide order dated 28.3.2001.

17. In order to attract Section 218 IPC the following three relevant essential ingredients of
that Section must apply:--
5 All. Balwant Rai Vs State Of U.P. & Anr.

753
(i) The public servant must be charged with the preparation of any record or other
writing;

(ii) He must frame that record or writing in a manner, which he knows to be
incorrect; and

(iii) He has done it with Intent to cause or knowing it to be likely that he will
thereby cause loss or Injury to public or to any person.

Thus, for making section 218 IPC applicable, preparation of record or other
writings must be the official duty of the public servant. It is pertinent to point out that investigation
of the case was being conducted by the applicant in his official capacity. However, major evidence
had been collected by the previous Investigating Officers. It is stated that barring the statements of
accused persons which in no manner could be called admissible evidence for trial purpose in terms
of Indian Evidence Act, no other statement was recorded by the applicant. He had formed opinion
on the basis of evidence collected by other Investigating Officers. He was otherwise competent to
form an opinion. But forming opinion will certainly not attract the ingredients of Section 218 IPC.
There is no evidence of forging any evidence. The accused persons were charge-sheeted on the
materials collected over by the earlier Investigating Officers. To constitute an offence under
Section 218 IPC, it is not enough to prove that any entry or over writing made is incorrect. It is
essential to prove that the entry was made with intention to cause or likely to cause loss or injury to
some person. No such evidence reflecting the intention of the applicant otherwise was ever
collected by the Investigating Officer/respondent no. 2. Apparently, the order of taking cognizance
under Section 218 I.P.C. by the Magistrate is without any substance. The allegations made in the
F.I.R. even if they are taken at their face value and accepted in their entirety do not prima facie
constitute offence under Section 218 I.P.C. against the applicant.

18. In over all view of the matter, it appears that present criminal proceedings has been
launched against the applicant without any lawful basis. Almost entire evidence was collected by
previous investigating Officers. Applicant formed opinion on the basis of evidence collected by
previous investigators. No body can force investigating officer to form a particular kind of opinion.
Applicant was free to form any opinion after interpreting available evidence. There is no whisper
that any evidence was forged, fabricated or mutilated. In fact applicant came very late in the
investigation.
19. It is pertinent to point out that the Apex Court in State of Haryana & Others v.
Bhajan Lal & Others 1992 Supp. (1) SCC 335, has held that investigation of an offence is within
the domain of police officer. The power of Investigating Officer is unfettered so long these power
are legitimately exercised in strict compliance with the provision of Cr.P.C. In Bhajan Lal's case
(supra), the Apex Court has held as under:-

"The investigation of an offence is the field exclu- sively reserved for the police
officers whose powers in that field are unfettered so long as the power to investigate into the
cognizable offences is legitimately exercised in strict compliance with the provisions falling under
754 INDIAN LAW REPORTS ALLAHABAD SERIES
Chapter XII of the Code and the Courts are not justified in obliter- ating the track of investigation
when the investigating agencies are well within their legal bounds. A noticeable feature of the
scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the
police investigation but he is not authorised to interfere with the actual investigation or to direct the
police how that investigation is to be conducted."

20. If the police officer transgressed the limits of propriety then of course suitable action
can be taken by the courts but it is evident that investigating Officer cannot be asked to interpret the
material collected during course of investigation in a particular fashion. He can form any opinion
on the available material. Whether that opinion will sustain during the course of trial or not is
different matter altogether. In the present dispute, it is evident that almost entire factual evidence
was collected by the previous Investigating Officers. Present applicant formed particular opinion on
the basis of available material and he cannot be held criminally liable for forming that particular
opinion.

21. For attracting ingredients of Section 218 IPC, the material must show that the officer
had made incorrect record or writings with intention to save a person from punishment or property
from forfeiture. No such ingredients is available in the present case. Now the question is; Can a
person be booked under Section 218 IPC for forming opinion on the basis evidence collected by
other persons for which he was authorized by law ? There is no evidence that the applicant framed
incorrect records or other writings. Allegation of mens-rea is completely absent. Ingredients of
Section 218 IPC are not available. This practice of initiating criminal case without showing any
material of malafide motive is wrong and cannot be encouraged. If any officer faithfully discharges
his duty then he or she cannot be criminally prosecuted, even if his/her decision turn out to be
wrong. It is strange that the evidence was collected by others and yet the prosecution was launched
only against the applicant.

22. Learned counsel for the applicant has also claimed that his matter was investigated by
the officer of lower in rank than the applicant who was at that time Deputy Superintendent of
Police hence the investigation carried out by respondent no. 2 in view of clause 1(3) of Paragraph
486 of the UP Police Regulations is bad in law. He has relied upon the judgment of S. P. Singh Vs
State of UP and others, AWC 1987 page 1099. I am afraid, this judgment would be of no help to
him as the Apex Court in State of UP Vs Surendra Pal Singh, 1989 AIR 811 has clearly held that
this rule is applicable only in departmental proceedings and that the criminal prosecution cannot be
set aside on the ground that the investigation had been conducted by a person lower in rank of that
of applicant. However, it is apparent that no offence infact is made out against the applicant from
the facts of the case disclosed herein above. Thus, from the facts of this case disclosed as above, it
is evident that the prosecution of the applicant is absolutely an abuse of the process of the court and
accordingly the application deserves to be allowed and the charged-sheet so submitted by the
CBCID/respondent no. 2 is liable to be quashed so far as taking cognizance under Section 218
I.P.C. against the applicant.
5 All. Masood Pravej Vs State Of U.P. & Ors.

755
23. A bare perusal of cognizance order passed by the learned Magistrate would also
disclose total non- application of mind by him. In view of above , this Court is of the firm view that
it is a fit case where this court has to exercise its extraordinary inherent jurisdiction under Section
482 Cr.P.C. to quash the impugned charge-sheet and the order of cognizance thereon. The
application is accordingly, allowed. The charge-sheet no. 28 of 2005 arising out of Case Crime No.
84 of 2001, under Section 218 IPC, P.S. Kotwali, District Banda as well as the cognizance orders
dated 20.9.2005 and 26.9.2005 passed by learned Chief Judicial Magistrate, Banda in criminal Case
No. 3136 of 2005 against the applicant are hereby quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2016

BEFORE

THE HON'BLE DILIP GUPTA, J.
THE HON'BLE RAVINDRA NATH KAKKAR, J.

Writ C No.- 20551 Of 2016

Masood Pravej ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pankaj Kumar Tyagi, and Ms. Archana Tyagi

Counsel for the Respondents:
C.S.C. & Ms. Meenakshi Singh

The petitioner filed the writ petition seeking a direction to the Registrar appointed under the
Registration Act, 1908 to decide an application dated 18 April 2016 filed under Section 340 of
the Code of Criminal Procedure, 1973 in proceedings initiated under Sections 40 and 41 of the
Registration Act relating to registration of a Will deed. The petitioner alleged that a document
produced during the registration proceedings was forged and sought initiation of proceedings
under Section 340 Cr.P.C.
A preliminary objection was raised that proceedings before the Registrar are not proceedings
before a "Court" and, therefore, an application under Section 340 Cr.P.C. was not maintainable.
Reliance was placed on the definition of "Court" under Section 195(3) of the Code of Criminal
Procedure, 1973.
After considering the statutory provisions and judicial precedents, it was held that the0
definition of "Court" under Section 195(3) of the Code of Criminal Procedure, 1973 is exhaustive
and includes only Civil, Revenue or Criminal Courts and such tribunals as are expressly declared
to be Courts for the purposes of the said section. A Registrar discharging functions under
Sections 40 and 41 of the Registration Act does not possess the essential attributes of a Court
and is not declared by any statute to be a Court for the purposes of Section 195 Cr.P.C.