# Mohammad Azam Khan & Ors v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **Case number:** Application U/S 482 No. 39535 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-azam-khan-ors-v-state-of-u-p-ors-45535
- **Pages:** 38

## Headnote

A.G.A.

A.
Registration
of
Birth
and
Death
Act,1969 -Section 13 - Only the official
issuing authority may legally make changes to
a birth certificate once it's issued - Further, any
alterations, more likely than not, render the
certificate invalid.

Only the Authority who has issued the Birth
Certificate can do any alterations in the same ,
once issued, and the said requirement cannot
be bypassed by obtaining different birth
certificates from different local Authorities.
2 All. Mohammad Azam Khan & Ors. State of U.P. & Ors.
1529
B. Juvenile Justice (Care and Protection of
Children) Act, 2015 (Act No. 2 of 2016)-
Section 94 - Medical opinion from Medical Board
should be sought only when matriculation certificate
or school certificate or any birth certificate issued by
a corporation or by any panchayat or municipality is
not available. In the instant case, the matriculation
certificate is available to ascertain the date of birth of
the petitioner.

The requirement under law is that where the
Matriculation Certificate is available, then only the
same shall be taken into account for the purpose of
ascertaining the date of birth.

Regulation "69.2 of the Examination-Bye-laws of
the Central Board of Secondary Education, New
Delhi- Three Birth Certificates- Forgery and
Manipulation- No correction/rectification or change in
the date of birth can be made if the same has
already been recorded in the Board's records. Only
typographical errors can be corrected. The aforesaid
regulation also prohibits that no correction can be
made on application submitted after expiry of a
period of five years

When applicant no.3 already possessed a birth
certificate
of
secondary
school/high
school
examination certificate there was no occasion for
getting two birth certificates of different dates from
the local Municipal Authorities without getting the
entry in the Secondary school Biirth Certificate
corrected/rectified.

C. Criminal Law- Indian Penal Code 1860-
Sections 420, 467, 468 and 471 I.P.C - On the
basis of the changed new birth certificate, applicant
no.3 participated in the legislative assembly election
and was elected as member of legislative assembly
in the year 2017 and has drawn salary from the
public exchequer till today, which prima facie,
amounts to cheating, deception and mens rea.

In the facts of the case the ingredients of Sections
463 and 464 I.P.C. are prima facie attracted against
the applicants.

D. Criminal law - Code of Criminal
Procedure 1973- Sections 37, 38 and
43 - Locus of informant to lodge F.I.R
against the applicant- Every person has a
right to lodge a first information report
against a person, who in his presence,
commits a non-bailable or cognizable
offence.

There are no restrictions on the criminal
prosecution of a Public Servant by a
private person and the question of locus
standi of a private person does not arise
in cases of criminal prosecution.

E. Criminal law - Code of Criminal
Procedure 1973- Sect

## Text

_Characters 0–39,871 of 128,663. This is a partial read: ask again with offset=39871 for what follows._

1528 INDIAN LAW REPORTS ALLAHABAD SERIES
this
complaint
against
present
applicant was filed.

8. Section 6 of the Act No.57 of 1994
(As
above),
for
prohibition
of
determination of sex, provides that on and
from commencement of this Act, i.e., from
the
date
of
its
enforcement,
20th
September, 1994, if anyone conducts or
cause to be conducted any pre-natal
diagnostic
technique,
including
ultrasonography, for the purposes of
determining the sex of a foetus, then, he is
to be punished, under this Section, read
with Section 23 of the Act, and for
contraventions of the provisions of the Act
or rules for which no specific punishment
is provided, the punishment shall be
awarded under Section 25 of the Act.

9. In present case, owing to
negligence of the applicant, Jitendra and
Anuj caused to make sex determination of
the foetus. This Section does not provide
for presence of the owner of the Clinic,
alongwith
the
person,
and
do
determination is liable for punishment,
under this Act, rather, if he caused or
allows to do this determination, then, also
he is liable for punishment under subsections (1), (2), (3) of Section 23 and
Section 25 of the Act.

10. Hence, very argument of learned
counsel for applicant that at the time of
occurrence, applicant was not present on
the spot, is not tenable. There is no need of
presence of applicant on the spot of
occurrence, where, sex determination of
foetus is made, at the time of occurrence.
If there is implied authority or situation for
misuse of Sonogrophy Machine, to be
used by any of the employees of the Clinic
of which applicant is the owner, against
terms of license of registration of such
Clinic, it will amount offence, punishable,
under Sections 6, 23 and 25 of the Act.

11. Hence, in view of what has been
discussed above, the complaint was, in
accordance with the provisions of law and
cognizance taking order was also in
accordance with the provisions of law.

12. Accordingly, this Application,
being devoid of merits, deserves dismissal
and it stands dismissed accordingly.
----------
(2020)02ILR A1528

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE
THE HON'BLE MRS. MANJU RANI CHAUHAN, J.

Application U/S 482 No. 39535 of 2019

Mohammad Azam Khan & Ors.
 ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri G.S. Chaturvedi, Sri Saiful Islam
Siddiqui, Tahira Kazmi, Sri S. Safdar Ali
Kazmi

Counsel for the Opposite Parties:
A.G.A.

A.
Registration
of
Birth
and
Death
Act,1969 -Section 13 - Only the official
issuing authority may legally make changes to
a birth certificate once it's issued - Further, any
alterations, more likely than not, render the
certificate invalid.

Only the Authority who has issued the Birth
Certificate can do any alterations in the same ,
once issued, and the said requirement cannot
be bypassed by obtaining different birth
certificates from different local Authorities.
2 All. Mohammad Azam Khan & Ors. State of U.P. & Ors.
1529
B. Juvenile Justice (Care and Protection of
Children) Act, 2015 (Act No. 2 of 2016)-
Section 94 - Medical opinion from Medical Board
should be sought only when matriculation certificate
or school certificate or any birth certificate issued by
a corporation or by any panchayat or municipality is
not available. In the instant case, the matriculation
certificate is available to ascertain the date of birth of
the petitioner.

The requirement under law is that where the
Matriculation Certificate is available, then only the
same shall be taken into account for the purpose of
ascertaining the date of birth.

Regulation "69.2 of the Examination-Bye-laws of
the Central Board of Secondary Education, New
Delhi- Three Birth Certificates- Forgery and
Manipulation- No correction/rectification or change in
the date of birth can be made if the same has
already been recorded in the Board's records. Only
typographical errors can be corrected. The aforesaid
regulation also prohibits that no correction can be
made on application submitted after expiry of a
period of five years

When applicant no.3 already possessed a birth
certificate
of
secondary
school/high
school
examination certificate there was no occasion for
getting two birth certificates of different dates from
the local Municipal Authorities without getting the
entry in the Secondary school Biirth Certificate
corrected/rectified.

C. Criminal Law- Indian Penal Code 1860-
Sections 420, 467, 468 and 471 I.P.C - On the
basis of the changed new birth certificate, applicant
no.3 participated in the legislative assembly election
and was elected as member of legislative assembly
in the year 2017 and has drawn salary from the
public exchequer till today, which prima facie,
amounts to cheating, deception and mens rea.

In the facts of the case the ingredients of Sections
463 and 464 I.P.C. are prima facie attracted against
the applicants.

D. Criminal law - Code of Criminal
Procedure 1973- Sections 37, 38 and
43 - Locus of informant to lodge F.I.R
against the applicant- Every person has a
right to lodge a first information report
against a person, who in his presence,
commits a non-bailable or cognizable
offence.

There are no restrictions on the criminal
prosecution of a Public Servant by a
private person and the question of locus
standi of a private person does not arise
in cases of criminal prosecution.

E. Criminal law - Code of Criminal
Procedure 1973- Section 482- Scope-
Adjudication on pure questions of fact
can only be done by the trial court and
while doing so even the submissions
made on points of law can also be more
appropriately gone into by the trial court.

Under
the
exercise
of
it's
inherent
jurisdiction under section 482 of the
Cr.Pc , the High Court cannot look into
disputed questions of fact or the defence
of the accused which can only be
adjudicated in a trial after evidence is
led.

Criminal Application rejected.

Case Law Discussed:-

1. Hridaya Ranjan Prasad Verma & Ors.
Vs. St. of Bih. & anr, (2000) 4 SCC 168

2. S.W. Palanitkar & Ors. Vs. St. of Bih.
& anr, (2002) 1 SCC 241

3. Hira Lal Hari lal Bhagwati Vs. CBI,
New Delhi, (2003) 5 SCC 257

4. Devender Kumar Singla Vs. Baldev
Krishan Singh, (2004) 2 JT 539 (SC)

5. I.O.C Vs. NEPC India Ltd.,2006(6) SCC
736

6. Vir Prakash Sharma Vs. Anil Kumar
Agarwal & Anr, 2007(7) SCC 373

7. Sh. Suneel Galgotia & Anr. Vs. St. of
U.P. & Ors., 2016 (92) ACC 40

8. United India Insurance Company Ltd.
Vs.
B.Rajendra
Singh
&
Ors,
JT
2000(3)SC.151
1530 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Vice Chairman, Kendriya Vidyalaya
Sangathan & Anr. Vs. Girdhari Lal Yadav,
2004 (6) SCC 325

10. Ram Chandra Singh Vs. Savitri Devi &
Ors., 2003(8) SCC 319

11. S.P. ChengalVaraya Naidu (dead) by L.Rs
Vs. Jagannath (dead) by L.Rs & Ors, AIR 1994
SC 853

12. State of MH. Vs. Mayer Hans George, AIR
1965 SC 722 (V 52 C 123),

13. Kartar Singh Vs. St. of Punj. (1994) 3 SCC
569

14. Eastern Coal Fields Limited & Ors. Vs.
Bajrangi Rabidas, (2014) 13 SCC 681

15. Manoj Kumar Vs. Govt. of NCT of Delhi &
Ors. (2010) 11 SCC 702

16. Shah Nawaz Vs. St. of U.P & Anr, (2011) 13
SCC 751

17. Board of Secondary Education of Assam Vs.
Md. Sarifuzzaman & Ors. (2003) 12 SCC 408

18. Sheo Nandan Paswan Vs. St. of Bih. & Ors.
AIR 1987 SC 877

19. Subramanian Swamy Vs. Manmohan Singh
& Anr. (2012) 3 SCC 64

20. R.P. Kapur Vs. St. of Punj., AIR 1960 SC
866

21. St. of Bih. & Anr. Vs. P.P. Sharma &
Anr.; 1992 Supp (1) SCC 222

22. St. of Har. & Ors. Vs. Ch. Bhajan Lal &
Ors.;1992 Supp.(1) SCC 335

23. Zandu Pharma. Works Ltd. & Ors. Vs.
Md. Shariful Haque & Anr.; 2005 (1) SCC
122

24. M. N. Ojha Vs. Alok Kumar Srivastava;
2009 (9) SCC 682

25. Nallapareddy Sridhar Reddy Vs. The St.
of A.P & Ors. 2020 0 Supreme (SC) 45
(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)

1. This application under Section 482
Cr.P.C. has been filed to quash the charge-sheet
dated 1st April, 2019, cognizance taking order
dated 19th August, 2019, summoning order
dated 19th August, 2019 as well as entire
proceedings of Criminal Case No. 1453 of
2019 (State Vs. Mohd. Azam Khan & Others)
under Sections 420, 467, 468 and 471 I.P.C.,
arising out of Case Crime No. 04 of 2019,
Police Station-Ganj, District-Rampur pending
in the Court of Additional Chief Judicial
Magistrate, Court No.3, Rampur.

2. Perused the material available on
record.

3. I have heard Mr. Gopal Swaroop
Chaturvedi, learned Senior Advocate assisted
by Mr. Saiful Islam Siddiqui, Mr. S. Safdar Ali
Kazmi and Mrs. Tahira Kazmi, learned
counsel appearing for the applicants and Mr.
Ratnendu Kumar Singh and Mr. Amit Singh
Chauhan, learned Additional Government
Advocates for the State.

4. The facts, as borne out from the
records of the present application under
Section 482 Cr.P.C., which are relevant for
deciding the present application, are as
follows:

One Mr. Akash Saxena, who is
alleged to be Regional Convener has made
an application before the Station House
Officer, Police Station-Ganj, DistrictRampur under Section 154 Cr.P.C. for
lodging of first information report on 3rd
January, 2019 at 12:22 hrs. against Mohd.
Azam Khan, Smt. Danjin Fatima/Tanjim
Fatma, which has been registered on the
same day i.e. 3rd January, 2019 at 13:10
hrs. as Case Crime No. 0004 of 2019,
under Sections 471, 468, 467, 420 and 193
2 All. Mohammad Azam Khan & Ors. State of U.P. & Ors.
1531
I.P.C.,
Police
Station-Ganj,
DistrictRampur. In the said first information
report, it has been alleged that Mohd.
Azam Khan son of late Mumtaz Khan and
Smt. Tanzim Fatima, wife of Mohd. Azam
Khan by creating a code and plotting a
well-planned conspiracy, for personal
interest, had got issued two date of birth
certificates of their son, namely, Abdullah
Azam Khan, son of Mohd. Azam Khan,
resident of Gher Meer Baaj Kha, Jail
Road, Rampur of two different districts.
The date of birth certificate dated 28th
June, 2012 had been got issued from
Nagar Palika Parishad, Rampur bearing
Registration No. RNPB2012-03857, which
has been registered on the basis of
affidavit given by Mohd. Azam Khan and
Smt. Tanzim Fatima. In the said date of
birth certificate, the place of birth has been
shown as "Rampur". The second date of
birth certificate dated 21st January, 2015
bearing Registration No. NNLK0-B-201529261, had been got issued from Nagar
Nigam,
Lucknow,
which
has
been
registered on the basis of duplicate date of
birth certificate, serial no. 718 dated 21st
April, 2015 issued by Queen Mery
Hospital, Lucknow. In the said date of
birth certificate, the place of birth has been
shown as "Lucknow". It has further been
alleged that Mohd. Abdullah Azam Khan
had visited foreign countries by illegally
using the date of birth certificate issued by
Nagar Palika Parishad, Rampur. He had
obtained government documents by using
second date of birth certificate issued by
Nagar Nigam, Lucknow. He had also used
the same at various places. The aforesaid
two date of birth certificates of Mohd.
Abdullah Azam Khan had been got issued
by Mohd. Azam Khan and Smt. Tanzim
Fatima by creating a code and plotting a
well-planned conspiracy, for personal
benefit and the same had been used, for
which the present first information report
has been lodged.

5. The issue of two different date of
birth certificates of Mohd. Abdullah Azam
Khan was also up for consideration by
means of Election Petition No. 08 of 2017
(Nawab Kazim Ali khan Vs. Mohammad
Abdullah Azam Khan). The said election
petition has been allowed by a Coordinate
Bench of this Court vide judgment and
order dated 16th December, 2019 and
election of Mohd. Abdullah Azam Khan
has been declared void. The said judgment
and order of the Coordinate Bench has
been challenged by Mohammad Abdullah
Azam Khan before the Apex Court by
means of Civil Appeal No(s). 104 of 2020,
wherein the Apex Court vide order dated
17th January, 2020 has called for counter
affidavit. A copy of the judgment and
order dated 16th December, 2019 and
order dated 17th January, 2020 have been
brought
on
record
by
means
of
supplementary affidavit filed today, which
is taken on record.

6. For quashing of the aforesaid first
information report, the applicants have
approached this Court by means of
Criminal Misc. Writ Petition No. 11979 of
2019 (Mohammad Azam Khan & Others
VS. State of U.P. & Others). The Writ
Court, on the request of learned A.G.A.,
has called for counter affidvit vide order
dated 14th May, 2019 and the same is still
pending before the Writ Court.

7. After registration of the aforesaid
first information report, the Investigating
Officer
has
recorded
statements
of
following witnesses:

1.
Akash
Saxena,
Regional
Convener/first informant,
1532 INDIAN LAW REPORTS ALLAHABAD SERIES

2.
Tejpal
Verma,
Deputy
Registrar,

3. Mohd. Naseem, Passport
Officer,

4. Vijay Kumar, Income Tax
Officer,

5. Rai Singh, Chief Assistant,

6. Saleem, Record Keeper

7.
Sudheer
Kumar
Singh,
Principal,

8. Head Constable Police-15,
Rishipal, Giri

9. Sub-Inspector, Kishor Mishra,
and

10.
Station
House
Officer,
Narendra Tyagi.

8.

After
completing
statutory
investigation under Chapter XII Cr.P.C.,
the Police has submitted the charge-sheet
against the applicants under Sections 420,
467, 468 and 471 I.P.C. in the Court of
Additional
Chief
Judicial
Magistrate,
Court No.3, Rampur on which the
concerned
Magistrate
has
taken
cognizance vide order dated 19th August,
2019 and has directed registration of the
case which has been registered as Criminal
Case No. 1453 of 2019 (State Vs. Mohd.
Azam Khan & Others) under Sections 420,
467, 468 and 471 I.P.C.

9.

Mr.
Chaturvedi,
learned
Senior Advocate appearing for the
applicants
has
made
following
submissions
on
behalf
of
the
applicants:

i. That from the perusal of
the entire material collected by the
Investigating
Officer
during
the
course
of
investigation,
it
is
apparently clear that no iota of
evidence is available on record to
establish any of the ingredients of
Sections 420, 467, 468 and 471 I.P.C.
against the applicants.

ii. As on date, no material has been
collected by the Investigating Agency to show
that the ingredients given in Sections 463 and
464 I.P.C. are attracted in the present case.

iii. The Investigating Agency has
not brought on record any document to prove
that the 30th September, 1990 is an incorrect
date of birth of applicant no.3.

iv. From perusal of entire material
collected by the Investigating officer during the
course of investigation, it is apparently clear
that there is nothing on record to show any
dishonest intention on the part of any of the
applicants in submitting incorrect information
with regard to the date of birth of applicant
no.3 and as to what benefit/gain he would have
received by doing so.

v. Even assuming the prosecution
case to be true, the offences as alleged will not
travel beyond the purview of Section 23 of the
Registration of Births and Deaths Act, 1969
and Section 27 of Birth, Death and Marriage
Registration Act, 1886.

vi. From the material evidence
collected by the Investigating officer
during the course of investigation, it is
clear that there is no iota of evidence
available on record to establish the
element of mens rea on the part of the
accused applicants in the present case.

vii. There is also no document or
material
evidence
collected
by
the
Investigating Officer on the basis of which
it is established that birth certificate dated
21st January, 2015 showing the date of
birth of applicant no.3 as 30th September,
1990 is a forged document.

viii. No endeavour was made by
the Investigating Officer to record the
statement of Rajiv Rajpoot under Section
161 Cr.P.C., who issued birth certificate
dated 28th June, 2012 during the course of
investigation.
2 All. Mohammad Azam Khan & Ors. State of U.P. & Ors.
1533

ix. There was no basis for the
Investigation Officer to file charge-sheet
against the applicants as the witnesses of
charge-sheet have themselves stated that
the entire records got destroyed in the fire
which took place on 8th May, 2015 and
have also stated that the birth certificate of
applicant no.3 has also got cancelled on
30th January, 2015 by Registrar, Birth and
Death, Nagar Paliak Parishad, Rampur.

x.
Applicant
no.3
got
his
previous passport cancelled and applied
for new passport in accordance with law,
as is evident from the statement of
Mohammad Nasim, Passport Officer,
Bareilly recorded under Section under
Section 161 Cr.P.C., a copy of which has
been enclosed as Annexure-14 to the
affidavit
accompanying
the
present
application and that the applicant no.3 was
issued new passport in accordance with
law on the basis of birth certificate dated
21st January, 2015 and after police
verification of the same.

xi. On the basis of birth
certificate dated 21st January, 2015, a new
PAN card bearing number DFOPK6164K
has also been issued in favour of the
applicant no.3 in accordance with law as is
evident from the statement of Vijay
Kumar, Tax Officer, Rampur recorded
under Section 161 Cr.P.C.

xii. After issuance of birth
certificate dated 21st January, 2015 the
applicant has also applied for change of
date of birth from 1st January, 1993 to
30th September, 1990 in the official
records of the school and high school
certificate
which
is
still
pending
consideration.

xiii. The judgment and order
dated 16th December, 2019 passed by the
Hon'ble Court in Election Petition No. 8 of
2017 (Nawab Kazim Ali Khan Vs.
Mohammad Abdullah Azam Khan) is not
applicable and relevant and is not bar on
the present case in view of Sections 40 to
44 of the Indian Evidence Act, 1872.

xiv. The informant of the present
case has no locus standi to lodge the
present first information report against the
applicants as he has no relation with the
facts and circumstances of the case.

xv. The informant Akash Saxena
is a pawn created by the rulling
government just with the intention to
harass and tarnish the image of the
applicants in society.

xvi. No complaint has been filed
by the competent authority against the
alleged
offences
committed
by
the
applicants.

xvii.
The
elements
of
cheating and forgery are completely
missing in the present case as the
birth certificate dated 21st January,
2015 is a genuine document as it has
been issued by Lucknow Municipal
Corporation
being
a
competent
authority
under
the
procedure
established by law.

xviii. No offence whatsoever
as
alleged
by
informant
and
prosecution in the present case is
made out against the applicants and
the present proceedings is a sheer
misuse and abuse of process of law.

xix. It is noteworthy to
mention here that at the time of
lodging of the first information report
on 3rd January, 2019, the birth
certificate dated 28th June, 2012
issued by Nagar Palika Parishad
Rampur was no longer in existence as
the same stood canclled vide order
dated
30th
January,
2015
in
accordance with law.

xx. The entire prosecution
story
is
completely
politically
motivated, backed with mala fides
1534 INDIAN LAW REPORTS ALLAHABAD SERIES
and
the
instant
matter
has
no
substance
available
against
the
applicants.

10. Per contra, learned A.G.As. for
the State has vehementally opposed the
submissions made by the learned counsel
for the applicants. In reply, they have
submitted as follows:

i. A genuine question arises in
the mind of a prudent person as to why
applicant no.1 and applicant no.2 have
given affidavit in order to obtain a birth
certificate of applicant no.3 before Nagar
Palika Parisahd, Rampur and thereafter
applicant no.2 had given an application
supported by an affidavit before the
Municipal
Corporation,
Lucknow,
specially in the circumstance that the
applicant no.3 was already having the
legal proof of age or date of birth in the
shape of certificate of secondary school
examination (Class-X) of the year 2007
issued by the Central Board of Secondary
Education, without any legal requirement,
in fact mens rea was behind it from the
very beginning in the mind of applicants.

ii. It was within the knowledge
of applicants that on the basis of certificate
of secondary school examination (ClassX) of the year 2007 issued by the Central
Secondary Board of Secondary Education
containing therein the date of birth as "1st
January, 1993", the applicant no.3 is not
even in a position to participate in the
Uttar
Pradesh
Legislative
Assembly
Election of the year 2017, therefore, in the
year 2015 they approached the Nagar
Palika Parishad, Rampur for cancellation
of certificate dated 28th June, 2012 and the
Municipal Cooperation, Lucknow for
issuance
of
another
birth
certificate
showing therein the date of birth as "30th
September, 1990, so that applicant no.3
may participate in the forth coming
Legislative Assembly elections.

iii. It was within the knowledge
of applicant nos. 1 to 3 that as per the High
School Certificate the date of birth of
applicant no.3 is "1st January, 1993" and
in
order
to
deceive
the
Lucknow
Municipal
Corporation,
Lucknow,
an
application supported by an affidavit has
been moved by applicant no.2 for issuance
of third date of birth certificate of different
date of birth as "30th September, 1990",
whereas the real and true date of birth of
applicant no.3 was "1st January, 1993" and
ultimately, they obtained the manipulated
birth certificate and applicant no.3 used
the same in the Uttar Pradesh Legislative
Assembly Election of the year 2017. The
applicant no.3 won the election and was
elected as a Member of Legislative
Assembly, U.P., thereafter he enjoyed the
financial benefits of M.L.A., which is
wrongful gain on behalf of the applicants
and wrongful loss of the other contesting
participants
of
34-Suar
Constituency,
Rampur, Uttar Pradesh in the Legislative
Assembly Election of the year 2017 as
well as of the society, thus, offence as
alleged has been committed by the
applicants for personal gain.

iv.
During
the
course
of
investigation, the investigating Officer
examined and recorded the statement of
Sub-Registrar Tejpal Verma the then SubRegistrar, Birth and Death Certificate,
Nagar Palika Parishad, Rampur under
Section 161 Cr.P.C. Except the statements
of Vijay Kumar, Income Tax officer, who
has issued PAN card in favour of applicant
no.3, Sudheer Kumar Singh, St. Paul
School, Civil Lines, Rampur, who has
verified the secondary school examination
(Class-X) of the year 2007 of applicant
no.3 mentioning his date of birth as "1st
January, 1993", Raj Singh, Principal
2 All. Mohammad Azam Khan & Ors. State of U.P. & Ors.
1535
Assistant,
District
Election
Office,
Rampur, who has stated that along with
the nomination paper, the applicant no.3
has submitted his date of birth certificate
dated 21st January, 2015 issued by the
Municipal Corporation, Lucknow in which
the date of birth of applicant no.3 was
mentioned as "30th September, 1990"
recorded under Section 161 Cr.P.C., the
learned A.G.As. have referred to the
statement of Salim, Record Keepker,
Nagar Palika Parishad, Rampur in which
he has stated that from year 2012 he is
posted in Birth and Death Certificate
Section of Nagar Palika Parishad, Rampur
as Record Keeper. He takes care of all the
records. He has submitted that in relation
to the record of date of birth certificate of
applicant no.3, an affidavit of applicant
nos. 1 and 2 had been enclosed and on the
basis of which the date of birth certificate
of applicant no.3 has been prepared and
registered. The Investigating Officer has
also recorded second statement of Tejpal
Verma.
v. Referring to the aforesaid
statements recorded under Section 161
Cr.P.C., it has been submitted by the
learned A.G.As. that it is not disputed that
at the relevant point of time, applicant no.1
was
Cabinet
Minister
in
the
U.P.
Government holding portfolio of "Urban
Planning and Development and Local
Bodies" and the Nagar Palika Parishad,
Rampur was within the control of his
ministry, therefore, prima facie he is
responsible for the sudden burning of
documents related with the affidavit of
applicant nos. 1 and 2 and even no first
information report has been lodged qua the
burning of documents in the year 2015.

vi. The applicant no.3 was
having three certificates regarding his age
or date of birth, the first being the
Secondary School Examination (Class-X)
certificate showing his date of birth as "1st
January, 1993", the second being the date
of birth certificate issued by the Nagar
Palika Parishad, Rampur dated 28th June,
2012 showing his date of birth as "1st
January, 1993" and the third being date of
birth certificate issued by the Municipal
Corporation, Lucknow dated 21st January,
2015 showing the date of birth as "30th
September, 1990". The second date of
birth certificate issued by the Nagar Palika
Parisahd, Rampur was cancelled on 30th
January, 2015 and prior to it's cancellation,
third date of birth certificate was issued on
21st January, 2015 by the Municipal
Corporation, Lucknow. Thus at the same
point of time i.e. between the period 21st
January, 2015 to 30th January, 2015",
applicant no.3 was having three birth
certificates of two different date of birth
i.e.
"1st
January,
1993
and
30th
September, 1990". The applicant no.3 is
having five criminal antecedents to his
credit except the present one.

vii. At the relevant point of
time, applicant no.1 was Cabinet
Minister
in
the
U.P.
Government
holding portfolio of "Urban Planning
and Development and Local Bodies"
and the Nagar Palika Parishad, Rampur
and Municipal Corporation, Lucknow
were within the control of his ministry.
Applicant no.1 is having 53 criminal
antecedents to his credit except the
present one.

viii. The certificate of secondary
school
examination/high
school
examination
certificate
issued
by
a
recognized board like Central Board of
Secondary Education is a most authentic,
reliable and legal proof of age or date of
birth, within the territory of India and no
authority either Government or Private is
permitted by law to deny the same and can
ask for another proof of age or date of
birth of any person like applicant no.3.
1536 INDIAN LAW REPORTS ALLAHABAD SERIES

ix. One Nawab Kazim Ali Khan
moved an election petition before this
Court bearing Election Petition No. 8 of
2017 (Nawab Kazim Ali Khan Vs.
Mohammad Abdullah Azam Khan), the
same has been decided by a Bench of this
Court on 16th December, 2019 and the
Hon'ble Single Judge was pleased to give
concurrent finding regarding the date of
birth certificate issued by the Lucknow
Municipal Corporation, Lucknow dated
21st January, 2015 and cancellation of old
date of birth certificate issued by Nagar
Palika Parishad, Rampur dated 30th
January, 2015. In view of the aforesaid
judgment, learned A.G.As. have submitted
that the birth certificate so issued is a
complete nullity particularly in view of the
provisions
of
Section
13
of
the
Registration of Birth and Death Act. The
birth certificate issued by the Municipal
Corporation, Lucknow dated 21st January,
2015
is
a
manipulated
and
bogus
document. The copy of the EOT register
and MLR register as well as oral evidence
led by the applicants before the Hon'ble
Single
Judge
have
been
found
untrustworthy and did not prove that date
of birth of applicant no.3 is "30th
September, 1990" and the Hon'ble Single
Judge has observed that these evidences
are the result of manipulations and
fabrication of record. The Hon'ble Single
Judge has also observed that the birth
certificate
issued
by
the
Lucknow
Municipal Corporation, Lucknow and
cancellation order of
the old birth
certificate issued by the Nagar Palika
Parishad, Rampur are false, fabricated and
procured manipulated piece of papers.
This paper has been procured in breach of
the provisions of the Act i.e. the
Registration of Birth and Death Act.

x. The above judgment relates to
matters of a public nature, as the same has
been delivered in a election petition and
therein public documents (the date of birth
certificate
issued
by
the
Lucknow
Municipal Corporation, Lucknow dated
21st January, 2015 and cancellation order
of the old date of birth certificate issued by
the Nagar Palika Parishad, Rampur dated
30th January, 2015) have been considered
and concurrent finding has been recorded
that both the documents are manipulated,
fabricated, bogus and false and at this
juncture, the judgment delivered on 16th
December, 2019 in the election petition is
conclusive proof against the applicants
unless or until the same has been stayed or
quashed by the Apex Court.

xi. The learned A.G.As. have
also relied upon the judgment of the Apex
Court in the case of State of Haryana and
Others Vs. Chaudhari Bhajan Lal and
Others, reported in 1992 Supp.(1) SCC
335. On the cumulative strength of the
aforesaid, learned A.G.As. urge that
offence under Sections 420, 467, 468, 471
I.P.C. is made out against the applicants.
The present application under Section 482
Cr.P.C. is devoid of merit and the same is
liable to be dismissed by this Court.

11.

I
have
considered
the
submissions made by the learned counsel
for the parties and have gone through the
records of the present application under
Section 482 Cr.P.C.

12. Though in the prayer clause, the
applicants have prayed for quashing of the
summoning order dated 19th August, 2019
along with other prayers, but perusal of the
record shows that there is no summoning
order passed on 19th August, 2019. After
submission
of
the
charge-sheet,
the
concerned Magistrate has only taken
cognizance and directed to register the
case only. However, seeing the nature of
2 All. Mohammad Azam Khan & Ors. State of U.P. & Ors.
1537
this case, this Court wishes to examine the
legality, veracity or otherwise of the
impugned charge-sheet submitted against
the applicants under Sections 420, 467,
468 and 471 I.P.C. without examining the
summoning order.

13. Now this Court comes on the
issue of any cheating, fraud, deception,
dishonesty
being
committed
by
the
applicants in getting two extra date of birth
certificates of applicant no.3, while he
already possessed a birth certificate i.e.
matriculation/high
school
examination
certificate.

14. In paragraph 22 of the affidavit
accompanying the present application
under Section 482 Cr.P.C., it has been
stated that the reason of wrong date of
birth in the school register was a bona fide
one, as one Shri Sahzeb Khan, S/o Munna
Khan, R/o Mohalla Chauk Mohammed
Sayeed Khan, Rampur, District-Rampur, a
family friend of the applicants had gone to
St. Paul School, Rampur at the time of the
admission of applicant no.3 in Nursery
Class in the year 1995, who had completed
the formalities of the admission and
somehow on his own, inadvertently
furnished the date of birth of applicant
no.3 as "1st January, 1993" in place of
"30th September, 1990", which was
carried in further educational records of
applicant no.3.

15. In paragraph 23 of the said
affidavit, it has been stated that the
applicant no.3 completed his High School
Examination in the year 2007 and
Intermediate Examination in the year 2009
from St. Paul School, Rampur and
thereafter, completed his B.Tech. Degree
course in the year 2013 and the M.Tech.
Degree course in the year 2015 from
Galgotias College of Engineering and
Technology,
Greater
Noida
and
the
Galgotias
University,
Greater
Noida,
District-Gautam Budh Nagar respectively
and the date mentioned, as the date of birth
of the applicant no.3, is "1st January,
1993", was still continuing in all his above
educational certificates.

16. Further in paragraph-24 of the
aforesaid affidavit, it has been stated that
in the year 2015, while the applicant no.3
was pursuing his studies of M.Tech. (final
year) and was forwarding towards his
career/job and scrutinized his educational
records, he came to know that his date of
birth is incorrectly recorded as "1st
January,
1993"
in
place
of
"30th
September, 1990", then he took immediate
steps for correction in the same by filing
an application on 23rd March, 2015 under
the provisions of Examination Bye-Laws
of the Central Board of Secondary
Education, New Delhi before the Regional
Officer,
C.B.S.E.
Allahabad
through
Principal, St. Paul's School Rampur, which
is still pending consideration.

17. Paragraph-25 of the aforesaid
affidavit also indicates that a date of birth
certificate has also been issued in favour
of applicant no.3 mentioning the date of
birth as "1st January, 1993" on 28th
June, 2012 by the Nagar Palika Parishad,
Rampur. As per the statement of Tej Pal
Verma, the then Deputy Registrar, Birth
and Death, Nagar Palika Parishad, Rampur
recorded under Section 161 Cr.P.C., a copy
of which has been brought on record at
page-88 of the paper book , it has been
recorded that the date of birth certificate
dated 28th June, 12 has been registered by
Mr. Rajeev Rajpoot, the then Registrar,
Nagar Palika Parishad, Rampur on the
basis of affidavit filed by applicant nos. 1
1538 INDIAN LAW REPORTS ALLAHABAD SERIES
and 2. He has also stated that since the
same has been registered and issued
illegally, Mr. Tejpal had subsequently
cancelled the same. Mr. Tejpal has also
stated that due to fire the entire original
records had been destroyed. From the
record it appears that the said date of birth
certificate issued by the Nagar Palika
Parishad, Rampur had been cancelled on
31st January, 2015, a copy of which has
been enclosed as Annexure-6 to the
affidavit
accompanying
the
present
application. In the judgment and order
passed by the Hon'ble Single Judge dated
16th December, 2019 in Election Petition
No. 8 of 2017, a copy of which has been
brought
on
record
by
means
of
supplementary affidavit filed today, it has
been recorded as follows:

"His parents got registered his
birth with the Registrar of Birth Nagar
Palika Parishad, Rampur, mentioning his
date of birth as 01.01.1993. When the
Officer-in-charge/Sub-Registrar, Birth and
Death, Nagar Palika Parishad, Rampur,
appeared in witness box as P.W.4, he did
not produce the original records on the
basis of which the birth certificate of the
respondent
bearing
Registration
No.
RNPB-03857, dated 28.06.2012 Rampur
was issued and instead merely produced
the computer generated copy of birth
certificate of the respondent. He stated
that the entire record of the aforesaid birth
certificate has burnt in fire on 08.05.2015
after the Registrar Birth and Death, Nagar
Palika Parishad, Rampur, cancelled it on
30.01.2015."

18. From the record, it is also
apparent that while having two date of
birth certificates of applicant no.3, the first
being matriculation certificate of the year
2007 and the second being date of birth
certificate dated 28th June, 2012 issued by
Nagar Palika Parishad, Rampur, a third
date of birth certificate dated 21st
January, 2015 had been issued by
Municipal
Corporation,
Lucknow
mentioning the date of birth of applicant as
"30th
Sepember,
1990".
The
said
certificate has been registered on the basis
of the application dated 17th January, 2015
supported by an affidavit of applicant no.2,
namely, Smt. Tanzim Fatima. At page-31
of the judgment and order of the Hon'ble
Single Judge dated 16th December, 2019,
scanned copy of the letter made by
applicant no.2 has been pasted. In the said
letter, It has been stated that her son,
namely, Mohd. Abdullah Azam Khan was
born on 30th September, 1990 in Queen
Mery's Hospital (King George Medical
University", Lucknow Mahanagar. Due to
unavoidable urgency and requirement, she
needs date of birth certificate of her son.
She also prays that date of birth certificate
of his son be issued on the basis of that
application and affidavit filed along with
the same. She also states that verification
from Queen Mery's Hospital may also be
done. She lastly prays to issue date of birth
certificate of her son at the earliest.

19. What is important to note here is
that in the application along with affidavit
dated 17th January, 2015, the applicant
no.2 has concealed the issuance of second
date of birth certificate of her son i.e.
applicant no.3 dated 28th June, 2012
issued by the Nagar Palika Parishad,
Rampur and she has also committed
illegality in moving the application along
with affidavit dated 17th January, 2015 for
issuance of third birth certificate of her son
i.e. applicant no.3, which has been
registered
on
21st
January,
2015
mentioning the date of birth of applicant
no.3 as "30th September, 1990". When as
2 All. Mohammad Azam Khan & Ors. State of U.P. & Ors.
1539
matter of fact, the second date of birth of
the applicant no.3 dated 28th June, 2012
has been cancelled only on 31st January,
2015, therefore, between the period 21st
January, 2015 to 31st January, 2015,
applicant no.3 had three date of birth
certificates i.e. matriculation examination
certificate, date of birth certificate dated
28th June, 2012 and birth certificate dated
21st January, 2015. This fact has also not
been disputed by the learned counsel for
the applicants.

20. About the correctness or
genuineness of the third date of birth
certificate of applicant no.3 dated 21st
January, 2015, the Hon'ble Single Judge in
its judgment and order dated 16th
December, 2019 has discussed in detail
and observed that the said date of birth
certificate has been obtained on the basis
of manipulation and fabrication pf the
relevant records. The relevant paragraph
nos. 25 to 33 are being quoted hereinbelow:

"Birth
Certificate
issued
by
Nagar Nigam, Lucknow

25. Now, I proceed to examine
whether
birth
certificate
bearing
Registration No.NNLKO - B-2015-292611
and date of registration 21.01.2015, issued
by Registrar Birth and Death, Lucknow, on
21.01.2015 showing date of birth of the
respondent as 30.09.1990, is a valid piece
of paper/reliable evidence?

26.
D.W.-2
-
Dr.
Archana
Dwivedi,
Additional
Municipal
Commissioner, Municipal Corporation,
Lucknow, produced the complete original
file relating to issuance of birth certificate
of the respondent dated 21.01.2015 which
contains merely the application of the
respondent's mother and her affidavit both
dated 17.01.2015 and a computerised
sheet bearing particulars of registration of
birth of the respondent. Copy of the
aforesaid application and affidavit both
dated 17.01.2015 submitted by the mother
of the respondent before the Nagar Nigam
Lucknow and filed in evidence as Ex.R-12
are pasted below (scanned copy):-

27. The D.W. -2 Dr. Archana
Diwedi,
Additional
Municipal
Commissioner, Municipal Corporation,
Lucknow produced a birth register which
is neither authenticated nor certified by
any competent Officer nor paginated. In
her cross examination she stated that the
birth register is maintained by a clerk
which is not in prescribed form as
provided in the Registration of Birth and
Death Act, 1969. She stated that list of
Queen Mary's Hospital on the basis of
which entry of the respondent's birth has
been made in the birth register is not
available. She stated that birth of the
respondent was registered on 21.01.2015.
Copy of the relevant two pages of the
aforesaid birth register filed and attested
by the D.W.-2 has been marked as Ex.12
(paper No.A-96/4-5) which are pasted
below (scanned copy):-

28. The entry made in the
aforesaid birth register of Nagar Nigam,
Lucknow (Ex. R-12 - paper No. A 96/4-5)
is a clear case of manipulation and
interpolation.
The
entry
of
the
respondent's birth has been inserted in the
very little space at the bottom of the page
showing it to have been made on
30.09.1990 mentioning the name of the
respondent Mohd. Abdullah Azam Khan as
HINDU male baby of Mrs. Tazeen Fatima,
wife of Mohd. Azam Khan.