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Sridhar Misra v. State - APPLICATION U/s 482 No. 15901 of 1992 [2007] RD-AH 29 (1 January 2007)


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 (Court No. 48)

Criminal Misc. Application  No. 15901 of 1992


Sridhar Misra son of Ram Saroop Misra,

Resident of Village Bhelsi, Police Sation

Handi, District Allahabad. ..........  ...Accused- Applicant.


1. State of U.P.

2. Raj Narain son of Baldeo, R/o Village Bhelsi,

Police Station Handi,

District Allahabad. . ...... Opp.parties


Hon'ble Barkat Ali Zaidi, J

1. Cheats  and Tricksters  have found a new way of grabbing  property which is currently in vogue and that is to declare a liveman dead and appropriate his property after adopting such legal procedure as may be necessary and in respect of agricultural property getting entries made about the same in Revenue Records. This is what has happened in this case.

2. One Raj Narain of Village  Bhelsi , Police Station Handia, District Allahabad, an issueless widower was declared dead by his brother and nephews   and they got entries made in Revenue Records and consolidation  proceedings on basis thereof.  Poor Raj Narain cried hoarse that he is alive but  none  bothered and the applicant including the other four accused who  are  his brother and nephews all declared that he was no more alive.

3. Raj Narain, thereafter, filed an F.I.R. against the petitioners  under Sections 419,420,467 and 468 I.P.C.. The influence of the applicants prevailed and the police gave a final report mentioning that the question of the complainant Raj Narain being alive or dead was  being dealt with by  Revenue Courts and it was, therefore, not appropriate for the police to investigate the matter. The complainant Raj Narain gave a protest petition before the Magistrate which was accepted and the Magistrate summoned  the applicant  his brothers, three in number and the father.

4. It is against this order of summoning that the applicant has come to this Court under Section 482 Cr.P. C.

5. The arguments advanced in Court by the counsel for the applicant are three-fold;

(i) One of the arguments is that the Magistrate should have recorded statements under Section 200 Cr.P.C. before summoning the accused. That is the argument  as contained in para-9 of the application. There is hardly any scope for controversy that after a final report has been filed, there is no occasion for  recording statement under Sec. 200 Cr.P.C.  as that is a procedure for complaint cases only and not for police investigated cases. If the Magistrate, however chooses to treat the protest petition as a complaint and so decides , it is only then the provisions of section 200  and 202 Cr. P.C. will be attracted.

(ii) The other argument is that the case is one of Civil nature and should proceed in the Civil Court and not in Criminal Court. This argument is again unsustainable because if one tries to grab another man's property by  falsely declaring him dead, he manifestly  commits a crime for which he can be liable under  criminal law. It would be an  ingenious  twist of law, to call it a case of civil nature. The Court will, however, examine at the time of framing charge  as to what section of the Indian Penal Code, if any, will be attracted to the case on the basis of facts and law. The counsel for the applicant has referred to the case of Ram Biraji Devi and another Vs. Umesh Kumar Singh and another, [2006 (3) JIC ,281 (S.C.)  281. Where  the case in question was held to be a case of civil nature, not triable by the criminal court,  but it was on the facts of the particular case, that it was so held, and the case is not one of general application to all cases, and, in all circumstances. As mentioned above, the question is whether a living person has been falsely declared as dead, and that is clearly an offence, triable by the criminal court.

(iii) Last but not the least the argument was that orders about the complainant being dead  and his property descending to his brother and nephew who are the applicants have been passed by different revenue courts   and  the decision of the courts can only be set aside by a  Higher Tribunal and related to this was the contention that the prosecution of the applicant in criminal courts will, therefore, be barred by Section 195(1)(b) Cr.P.C. because the complaint about the same could be filed only  by the concerned revenue courts. The arguments  is unacceptable because it was at the behest of the accused that the court took a  decision about the complainant Raj Narain being dead. The primary responsibility for the false and  deceptive statement lies, therefore, on the accused, because, the accused chose to mislead the courts. The complainant Raj Narain contested the election of Pradhan in the village, about which papers are on record. Applicant Shridhar  filed a Writ Petition in the  High Court against respondent complainant Raj Narain  and the copy of the same  is on  file. The said Raj Narain also appeared in Court before us and pleaded that he was alive in flesh and blood  and still  his brother and nephew were calling him dead. There is no evidence from the side of applicant how the said Raj Narain died and where he was cremated. The applicant has not filed any photograph of deceased Raj Narain  to show to the Court the real face of Raj Narain, whom, they call dead because at some stage in life, his photograph would have been taken.

6. This Court had earlier passed an order that the  S.H.O. of the concerned police station should go alongwith the  Patwari and verify whether Raj Narain was dead or alive !  The report of the S.H.O. is on record to say that he is very much alive, though, he could not take the Patwari with him.

7. As regards the bar of Section 195 (1)(b), it has to be noticed that it does not apply to Section 420 I.P.C. and even as regards the other sections to which it refers, it would not be applicable because it is not in relation to Court proceedings that the offence has been committed. The offence has been initially committed by the accused by falsely showing a live man as dead and they have mislead  the Courts  and it is not, therefore,  the  court which has to file the complaint because  the offence has been  committed by the accused even before the commencement of revenue proceedings.

8. The offence committed by the  accused  calling a live man as dead is an independent offence and not one which will attract the bar of Section 195(1)(b) .

9. Counsel for the applicant has referred to the following cases in relation to his arguments about the bar of  Section 195(1)(b) Cr.P. C.

(i) Surjit Singh and others Vs. Balbir Singh, ACJ , 1996 (32) ,343.

(ii) Sachida Nand Singh and others Vs. State of Bihar  and others, 1992 (36) A.C.C. (S.C.) 466.

(iii) Criminal Misc. Case No. 8000 of 1981 Narvadeshwar Tiwari Vs. State of U.P. and another, decided by this Hon'ble court on 27.10.1986.

(iv) Criminal Misc. Application  No. 4035 of 1987 Pradohi Ram Vs. State of U.P., decided by this Hon'ble court on 17.8.1988.

But all these cases were dependent upon their facts and  have no application to the facts of the present case, where, as held above, the offence is independent of court proceedings.

10. If courts fall prey to such  curial  machinations the bastion of justice and equity shall stand annihilated  and the perpetrators of  fraud and deception will have a field  day. Live men should be  called living and not dead.

11. It may , however, be mentioned as a measure of caution that the trial magistrate need not be influenced by the peripheral   observations made in this order.

12. The Trial Magistrate will decide this case as expeditiously as possible and no date of more than a week shall normally be given in the case.

13. Petition dismissed.

Dated: 14.2.2007



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