Allowed

Kamaldeo Mishra v. the State of Bihar and Anr.

Patna HC5 Oct 2012CR. MISC./1329/2010

Case brief

AI extract

What is this about?

The Patna High Court allowed a quashing petition challenging a criminal proceeding instituted on a private complaint for offences alleged to have occurred during a judicial proceeding. The court held that since the alleged act happened in court, a private person lacked the right to prosecute and dismissed the case.

What did the court decide?

The entire proceeding of Birpur P.S. Case No. 19 of 1999 and the order dated 20.03.2007 passed by the Sub Divisional Judicial Magistrate are quashed.

Kamaldeo Mishra Vs the State of Bihar and Anr. — Corruption | Patna HC (2012)

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Patna High Court Cr.Misc. No.1329 of 2010 (7) dt.05-10-2012

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Miscellaneous No.1329 of 2010

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====================================================== Kamaldeo Mishra, S/O-Late Hari Prasad Mishra resident of Mohalla-Ward No. 8, Birpur, P.S.-Birpur, District-Supaul

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.... .... Petitioner/s Versus 1. The State Of Bihar 2. Lal Chaudhary, S/O-Late Lalji Chaudhary resident of village-Paurahi, P.S.-Raghopur, District-Supaul .... .... Opposite Party/s ====================================================== ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER

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7 05-10-2012 Heard learned counsel for the petitioner, learned counsel for Opposite Party No. 2 as well as learned Additional Public Prosecutor for the State on the point of admission and with consent of all the parties, this Court proceeds to decide the matter finally on admission stage itself.

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Petitioner has prayed for quashing the entire proceeding of Birpur P.S. Case No. 19 of 1999 including the order dated 20.03.2007 passed by learned Sub Divisional Judicial Magistrate, Birpur, Supaul in the above stated case by which and whereunder Sub Divisional Judicial Magistrate, Birpur, Supaul took the cognizance for the offences under Sections 419, 420, 465, 468, 467, 469 and 470 of the Indian Penal Code.

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The brief fact, which lies to file this quashing petition, is that Opposite Party No. 2 filed complaint case bearing Complaint Case No. 40 C of 1999 against the petitioner and one

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Patna High Court Cr.Misc. No.1329 of 2010 (7) dt.05-10-2012

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Buddhadev Mishra alleging therein, inter alia, that petitioner and co-accused by giving a wrong petition and by impersonating their father and also by giving false statements in a judicial proceeding of the court of D.C.L.R., Birpur obtained an order in respect of mutation case and after that on the basis of aforesaid order, they filed Title Suit No. 16 of 1990 in the court of Munsif, Birpur and obtained decree in their favour. The Opposite Party No. 2 was not party either in the above stated mutation case or in the above stated title suit and when Opposite Party No. 2 got knowledge of the aforesaid cases, he filed appeal before the Sub Divisional Officer, Birpur against the order of D.C.L.R., Birpur and Sub Divisional Officer, Birpur set aside the aforesaid order of D.C.L.R., Birpur passing order dated 26.11.1998 and furthermore, the Opposite Party No. 2 filed a petition for setting aside the decree of Munsif, Birpur in Execution Case No. 01 of 1997 which has been filed by the petitioner.

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Learned Sub Divisional Judicial Magistrate, Birpur, Supaul sent the aforesaid complaint case for institution of first information report and registration and accordingly, Birpur P.S. Case No. 19 of 1999 under Sections 419, 420, 465, 468, 467, 469 and 470 of the Indian Penal Code was registered against the petitioner and co-accused Buddhadeo Mishra. Police, after due

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Patna High Court Cr.Misc. No.1329 of 2010 (7) dt.05-10-2012

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investigation, submitted charge sheet against the petitioner and others and having receipt of the charge sheet learned Sub Divisional Judicial Magistrate, Birpur, Supaul took cognizance of the offences under Sections 419, 420, 465, 468, 467, 469 and 470 of the Indian Penal Code passing impugned order dated 20.03.2007 against which this quashing petition has been filed.

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Learned counsel for the petitioner challenged the impugned order on two grounds. Firstly, he submitted that according to Section 25 of Registration of Births and Deaths Act, 1969, no prosecution for an offence punishable under the Act shall be instituted except by an officer authorized by the Chief Registrar by general or special order in this behalf and in the present case, admittedly, prosecution has been launched by a private person and not by an officer authorized by the Chief Registrar and, therefore, very institution of the present case is nothing but only an abuse of process of the law. Secondly, he challenged the impugned order on the ground that according to prosecution case itself, the alleged occurrence took place in course of judicial proceeding and present prosecution has been initiated on the basis of complaint case filed by a private person and, therefore, the cognizance order is barred by Section 195 of the Cr.P.C. In addition to aforesaid contentions, he submitted that

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Patna High Court Cr.Misc. No.1329 of 2010 (7) dt.05-10-2012

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from perusal of contents of the complaint petition, it is apparent that no case is made out against the petitioner and other accused.

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On the other hand, learned counsel for Opposite Party

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No. 2 supported the impugned order and submitted that it is specific case of the prosecution that proceeding of mutation case was started on the basis of false petition and admittedly, the aforesaid false petition was prepared outside the court and, therefore, court can take cognizance of the offences even on the basis of complaint filed by a private person. In support of his contention, he referred two decisions reported in 1998 (3) PLJR 13 SC and 2012 (2) PLJR 369. It is further contended by him that so far as provision of Section 25 of Registration of Births and Deaths Act, 1969 is concerned, the same is not applicable in the present case because the aforesaid provision is applicable in respect of the offences which have been described in the above stated Registration of Births and Deaths Act, 1969.

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Having heard the rival contentions of both the parties, I have gone through the record.

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It is an admitted position that Mutation Case No. 03 of 1993-1994 was registered and in the aforesaid mutation case, D.C.L.R. passed order on 09.03.1994. The stand of the Opposite Party No. 2 is that the father of petitioner had died in the year

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Patna High Court Cr.Misc. No.1329 of 2010 (7) dt.05-10-2012

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1992 as admitted by petitioner no. 2 in his deposition recorded in G.R. Case No. 349 of 1985. Furthermore, stand of the Opposite Party No. 2 is that the aforesaid mutation case was registered on the basis of false petition and the aforesaid petition was prepared outside the court. In my view, even if it assumed that false pleadings were made in the petition then also, it cannot be said that a forged document was prepared. Furthermore, the case of the Opposite Party No. 2 is that the petitioner and other accused impersonated the deceased, Hari Prasad Mishra in a proceeding which had been pending in the court of D.C.L..R, Birpur. So, it is apparent from the averments of the complaint petition that alleged occurrence said to had taken place in a judicial proceeding and, therefore, I do agree with the submission of learned counsel for the petitioner that private person has got no right to launch prosecution in respect of an offence which had taken place in a judicial proceeding. So far as application of Section 25 of Registration of Births and Deaths Act, 1969 is concerned, there is much substance in the submission of learned counsel for Opposite Party No. 2 and I am agree with his submission that the aforesaid section is applicable in respect of the offences which have been described in the Registration of Births and Deaths Act, 1969.

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It would appear from perusal of annexure-2 to this

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Patna High Court Cr.Misc. No.1329 of 2010 (7) dt.05-10-2012

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petition that prior to initiation of present prosecution, the Opposite Party No. 2 had filed complaint case bearing Complaint Case No. 135 C of 2003 against co-accused Buddhdeo Mishra and petitioner and in the aforesaid complaint petition, he had alleged that petitioner and co-accused had obtained death certificate of Hari Prasad Mishra from the local municipal office after supplying wrong information in respect of death of aforesaid Hari Prasad Mishra. In the above stated Complaint Case No. 135 C of 2003, cognizance was taken vide order dated 11.12.2003 which was challenged before this Court in Cr. Misc. No. 17663 of 2005 and the cognizance order dated 11.12.2003 passed in the above stated complaint case no. 135 C of 2003 was quashed by this Court taking aid of Section 25 of Registration of Births and Deaths Act, 1969. The aforesaid fact clearly goes to show that Opposite Party No. 2 is in habit of filing cases against petitioner and other accused and the aforesaid fact reflects that the present case has also been filed with mala fide intention.

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On the basis of aforesaid discussions, I am of the firm view that continuance of proceeding of Birpur P.S. Case No. 19 of 1999 is nothing but only an abuse of process of the court.

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Accordingly, this petition is allowed and the entire proceeding of Birpur P.S. Case No. 19 of 1999 including the order

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Patna High Court Cr.Misc. No.1329 of 2010 (7) dt.05-10-2012

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dated 20.03.2007 passed by learned Sub Divisional Judicial Magistrate, Birpur, Supaul in the above stated case is, hereby, quashed.

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In the aforesaid manner, this quashing petition stands disposed off on admission stage itself.

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(Hemant Kumar Srivastava, J)

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SHAHZAD/-

Kamaldeo Mishra v. the State of Bihar and Anr.

Case brief

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Kamaldeo Mishra v. the State of Bihar and Anr.

Case brief

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