1. The petitioner has filed the present petition for setting aside the order dated 28.07.2022 passed by learned Judicial Magistrate First Class Court No. 3, Una, District Una (learned Trial Court) vide which learned Trial Court ordered the framing of charges against the petitioner for the commission of offences punishable under 465, 468, 471, 420 and 120B of Indian Penal Code (in short 'IPC'). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that Smt. Naseeb - the mother of the informant Surjeet Singh and Malkiat Singh- was co-owner in possession of the land described in the complaint. Avtar Singh etc. were her sons and daughters born from her first husband Banta Singh. The informant Surjeet Singh and Malkiat Singh are the sons of Naseeb Kaur from the second husband Desha Singh @ Ram Dass. Naseeb Kaur died on 22.09.1997 at Village Kante. Her death was duly registered on 01.10.1997 in the register of Births and Deaths maintained by the Additional District Registrar. The accused forged the death certificate of Naseeb Kaur by tampering with the birth certificate and changing the name of the husband of the deceased Naseeb Kaur from Dessa Singh to Banta Singh. They got mutation No. 546 entered in their names and the name of their sister. They did not disclose the names of Surjeet Kaur their sister and the informant, Surjeet Singh, Sarbjeet Kaur and Malkiat Singh children of Naseeb Kaur. The accused also got mutation attested in another village with the help of Lambardar, local Patwari and the Revenue officer based on the forged death certificate. They concealed the name of the informant, his brother, his sister and even their sister Surjeet Kaur. They subsequently sold part of the land to Arun Kumar and Neeraj Kumar for a consideration of ` 2,40,000/-. The accused were aware of the fact that the informant and other persons were successors to the estate of Naseeb Kaur. They forged the death certificate of Naseeb Kaur to deprive the informant and other beneficiaries. They caused wrongful loss to the informant and the other beneficiaries and used the forged death certificate as a genuine document. They sold the property to Arun Kumar and Neeraj Kumar after getting the mutation attested. The forgery was conspicuously visible to the naked eye. The name of Banta Singh was written after replacing the name of Dessa Singh. The accused conspired with each other. They tampered with the public record to deceive and transfer the property by making wrongful gain to themselves. Hence, a prayer was made to register the FIR against the accused persons. The police registered the FIR and conducted the investigation. The police seized the record of the death of Naseeb Kaur and found that the name of Dessa Singh was mentioned as the husband of Naseeb Kaur. His name was changed to Banta Singh. The mutation of inheritance was got sanctioned by the accused in their name based on the forged certificate. The specimen handwriting and the disputed death certificate were sent to FSL and as per the report, the questioned item was overwritten and the original writing could be deciphered as Dessa Singh. The police found that Naseeb Kaur, the mother of the accused, had married Banta Singh but she left him and started residing with Dessa Singh. She died in the house of Dessa Singh. The accused conspired to forge the death certificate and got the mutation attested in connivance with petitioner Narayan Singh-Tehsildar; hence, the challan was filed before the Court.

3. Learned Trial Court found sufficient reasons to frame the charges against the accused for the commission of offences punishable under Sections 465, 468, 471, 420 and 120B of IPC and framed the charges on 28.07.2022.

4. Being aggrieved from the order framing the charges, the accused Narayan Singh has filed the present petition asserting that the death certificate and factum of death were verified by concerned Kanoongo and Patwari. The file was put up before the accused after their verification. He acted upon the report of Patwani and Kanoongo and sanctioned the mutation. The learned Trial Court has not appreciated the fact that the accused/petitioner was acting in his official capacity and he cannot be held liable for forgery, if any, committed by the other accused. Therefore, it was prayed that the present petition be allowed and the order framing the charges of the learned Trial Court be set aside.

5. I have heard Mr. Dheeraj Kumar Vashisht, learned counsel for the petitioner and Ms. Ayushi Negi, learned Deputy Advocate General, for the respondent/State.

6. Mr. Dheeraj Kumar Vashisht, learned counsel for the petitioner submitted that the learned Trial Court erred in framing the charges against the accused. There was no evidence to show that the accused had committed any forgery. He cannot be held liable merely because he had attested the mutation in the discharge of his official duties. The entry was made by Patwari which was verified by the Kanoongo as per H.P. Land Record Manual. He prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

7. Ms Ayushi Negi, learned Deputy Advocate General for respondent No. 1/State submitted that the forgery was visible to the naked eye and the accused/petitioner erred in attesting the mutation based upon a forged document. This prima facie supports the version of the prosecution that the accused had entered into a conspiracy to attest the mutation in favour of the co-accused to cause wrongful gain to them and wrongful loss to the informant. She prayed that the present petition be dismissed.

8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

9. It was laid down by the Hon'ble Supreme Court in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 that the Court has to consider the material collected by the prosecution as true while framing charges and determine if any offence is made out or not. It was observed:

"7. It is trite law that the application of judicial mind is necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell on the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that the accused has committed the offence which is triable, then necessarily charge has to be framed.

8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.

9. If the accused is able to demonstrate from the charge-sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr. P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O.

10. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, the probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini-trial at this stage."

11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr. P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency."

10. This position was reiterated in Ram Prakash Chadha v. State of U.P. 2024 SCC OnLine SC 1709 wherein it was observed:

"12. We have already considered the meaning of the expression "the record of the case and the documents submitted therewith" relying on the decision in Debendra Nath Padhi's case (supra) only to re-assure as to what are the materials falling under the said expression and thus, available for consideration of an application filed for discharge under Section 227, Cr. P.C. In light of the same, there cannot be any doubt with respect to the position that at the stage of consideration of such an application for discharge, a defence case or material, if produced at all by the accused, cannot be looked at all. Once "the record of the case and the documents submitted therewith" are before the Court they alone can be looked into for considering the application for discharge and thereafter if it considers that there is no sufficient ground for proceeding against the accused concerned then he shall be discharged after recording reasons therefor. In that regard, it is only appropriate to consider the authorities dealing with the question as to what exactly is the scope of consideration and what should be the manner of consideration while exercising such power.

13. The decision in Yogesh alias Sachin Jagadish Joshi v. State of Maharashtra (2008) 10 SCC 394: AIR 2008 SC 2991 this Court held that the words "not sufficient ground for proceeding against the accused" appearing in Section 227, Cr. P.C. postulates the exercise of judicial mind on the part of the Judge to the facts of the case revealed from the materials brought on record by the prosecution in order to determine whether a case for trial has been made out. In the decision in State of Tamil Nadu v. N Suresh Rajan (2014) 11 SCC 709 this Court held that at a stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true, and evaluate the materials to find out whether the facts taken at their face value disclose the existence of the ingredients constituting the offence. At this stage, only the probative value of the materials has to be gone into and the court is not expected to go deep into the matter to hold a mini-trial.

14. In the decision in BK Sharma v. State of UP 1987 SCC OnLine All 314, the High Court of Judicature at Allahabad held that the standard of test and judgment which is finally applied before recording a finding of conviction against an accused is not to be applied at the stage of framing the charge. It is just a very strong suspicion, based on the material on record, and would be sufficient to frame a charge.

15. We are in agreement with the said view taken by the High Court. At the same time, we would add that the strong suspicion in order to be sufficient to frame a charge should be based on the material brought on record by the prosecution and should not be based on supposition, suspicions and conjectures. In other words, in order to be a basis to frame a charge the strong suspicion should be the one emerging from the materials on record brought by the prosecution.

16. In the decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia (1989) 1 SCC 715, this Court held that the word 'ground' in Section 227, Cr. P.C. did not mean a ground for conviction, but a ground for putting the accused on trial.

17. In P. Vijayan v. State of Kerala (2010) 2 SCC 398, after extracting Section 227, Cr. P.C., this Court in paragraphs No. 10 and 11 held thus: -

"10.

****************

.......If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."

18. In paragraph 13 in P. Vijayan's case (supra), this Court took note of the principles enunciated earlier by this Court in Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 which reads thus: -

"10....

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

19. In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. We are of the considered view that a caution has to be sounded for the reason that the chances of going beyond the permissible jurisdiction under Section 227, Cr. P.C., and entering into the scope of power under Section 232, Cr. P.C., cannot be ruled out as such instances are aplenty. In this context, it is relevant to refer to a decision of this Court in Om Parkash Sharma v. CBI (2000) 5 SCC 679. Taking note of the language of Section 227, Cr. P.C. is in negative terminology and that the language in Section 232, Cr. P.C., is in the positive terminology and considering this distinction between the two, this Court held that it would not be open to the Court while considering an application under Section 227, Cr. P.C., to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232, Cr. P.C., even though the said stage has not been reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amounting to exercise of the power coupled with obligation under Section 232, Cr. P.C. is available only after taking the evidence for the prosecution and examining the accused.

20. Even after referring to the aforesaid decisions, we think it absolutely appropriate to refer to a decision of the Madhya Pradesh High Court in Kaushalya Devi v. State of MP 2003 SCC OnLine MP 672. It was held in the said case that if there is no legal evidence, then framing of charge would be groundless and compelling the accused to face the trial is contrary to the procedure offending Article 21 of the Constitution of India. While agreeing with the view, we make it clear that the expression 'legal evidence' has to be construed only as evidence disclosing prima facie case, 'the record of the case and the documents submitted therewith'.

21. The stage of Section 227, Cr. P.C. is equally crucial and determinative to both the prosecution and the accused, we will dilate the issue further. In this context, certain other aspects also require consideration. It cannot be said that Section 227, Cr. P.C. is couched in negative terminology without a purpose. The charge sheet is a misnomer for the final report filed under Section 173 (2), Cr. P.C., which is not a negative report and one that carries an accusation against the accused concerned of having committed the offence (s) mentioned therein.

22. In cases, where it appears that the said offence(s) is one triable exclusively by the Court of Session, the Magistrate shall have to commit the case to the Court of Session concerned following the prescribed procedures under Cr. P.C. In such cases, though it carries an accusation as aforementioned still legislature thought it appropriate to provide an inviolable right as a precious safeguard for the accused, pre-battle protection under Section 227, Cr. P.C. Though, this provision is couched in negative it obligated the court concerned to unfailingly consider the record of the case and document submitted therewith and also to hear the submissions of the accused and the prosecution in that behalf to arrive at a conclusion as to whether or not sufficient ground for proceeding against the accused is available thereunder. Certainly, if the answer of such consideration is in the negative, the court is bound to discharge the accused and to record reasons therefor. The corollary is that the question of framing the charge would arise only in a case where the court upon such exercise satisfies itself about the prima facie case revealing from "the record of the case and the documents submitted therewith" against the accused concerned. In short, it can be said in that view of the matter that the intention embedded is to ensure that an accused will be made to stand the ordeal of trial only if 'the record of the case and the documents submitted therewith' discloses ground for proceeding against him. When that be so, in a case where an application is filed for discharge under Section 227, Cr. P.C., it is an irrecusable duty and obligation of the Court to apply its mind and answer to it regarding the existence of or otherwise, of ground for proceeding against the accused, by confining such consideration based only on the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf. To wit, such conclusion on the existence or otherwise of ground to proceed against the accused concerned should not be and could not be based on mere suppositions or suspicions or conjectures, especially not founded upon material available before the Court. We are not oblivious to the fact that normally, the Court is to record his reasons only for discharging an accused at the stage of Section 227, Cr. P.C. However, when an application for discharge is filed under Section 227, Cr. P.C., the Court concerned is bound to disclose the reason(s), though, not in detail, for finding sufficient ground for rejecting the application or in other words, for finding a prima facie case, as it will enable the superior Court to examine the challenge against the order of rejection."

11. The present petition has to be considered as per the parameters laid down by the Hon'ble Supreme Court.

12. The learned Trial Court framed the charges against the accused for the commission of offences punishable under Sections 465, 468, 471, 420 and Section 120B of IPC. It was put to the accused that he/his co-accused committed forgery by altering the name of the husband of Naseeb Kaur and using the forged document to enter the mutation in favour of the accused/co-accused. The accused/co-accused cheated the complainant-Surinder Singh and another beneficiary of Naseeb Kaur by dishonestly claiming to be the legal heir and they agreed to cheat the complainant and other beneficiary by dishonestly claiming themselves to be the legal heirs of Naseeb Kaur, forged the death certificate of Naseeb Kaur, got the mutation sanctioned in favour of the accused/co-accused and sold the part of the estate of Naseeb Kaur to Arun Kumar and Neeraj Kumar.

13. The charge framed by the learned Trial Court does not reflect the prosecution case against the present accused. It was nowhere stated by the prosecution that the accused had forged the death certificate or he had cheated the complainant. The allegation against the accused was simply that he had attested the mutation in connivance with the other accused. It was specifically stated in the charge sheet that the co-accused had forged with the death certificate and in connivance with Narayan (the present accused) had got the mutation of inheritance sanctioned in their favour. Thus, the allegation against the accused was that he had sanctioned the mutation in favour of the other co-accused.

14. It was held by Allahabad High Court in Phool Chandra Arya v. State of U.P., 2016 SCC OnLine All 3328 that the attestation of the mutation does not attract the provisions of Sections 419, 420, 467, 468, 406 of IPC. It was observed:

"32. The prosecution has submitted a charge sheet against the applicant under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act, Police Station George Town, District Allahabad. A bare perusal of the record would disclose that the applicant has not been accused of making a false document, as defined under section 464 IPC. Making of false document is a condition precedent for the offence under sections 467, 468 and 471 IPC. There is no allegation much less evidence to show that any false document was prepared by the applicant, therefore, the offence under sections 467, 468 and 471 IPC are not attracted at all. [Mohammad Ibrahim v. State of Bihar 2007:INSC:207 : (2007) 4 SCC 247]

33. Similarly, for attracting ingredients of sections 419 and 420 IPC inducement to deliver property to any person or to make alter or to destroy whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security is essential. The fact of the matter is that the sale deed was executed and registered in Mumbai between the vendors and vendees. There is no allegation that the applicant was present in Mumbai at the relevant time. The entire evidence discloses no action on the part of the applicant except conducting mutation proceedings under the Revenue law, subsequent to the application made by the purchasers. There is no material involvement of the applicant in the execution and registration of the deed. Ingredients of section 415 IPC are totally absent; it cannot be said that the offences punishable under sections 419 and 420 IPC are made out against the applicant. The role of the applicant has been delineated by the prosecution itself and his role is limited to mutation proceedings only. There is, in fact, no allegation or whisper that prior to mutation proceedings, the applicant was involved with any party at all."

15. Even otherwise, it was not alleged by the prosecution that the accused had made any representation to any person or he had tampered with the name of the husband of Naseeb Kaur or the name was changed in connivance with him. It was nowhere stated in the charge sheet that the present accused was a party to be a forgery; therefore, the learned Trial Court erred in framing the charges against the accused for the commission of offences punishable under Section 468, 471, 420 read with Section 120B of IPC.

16. Since the attestation of the mutation does not constitute the commission of any offence in the present case; therefore, the learned Trial Court erred in framing the charges against the accused.

17. Consequently, the present petition is allowed and the order framing the charges against the accused is set aside and the accused is discharged.

18. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case.