Puna Mahto vs State of Bihar

Choudhary Sia Saran Sinha, J.—This Criminal Miscellaneous application is directed against the order dated 16-4-73 of the Sub-Divisional Judicial Magistrate, Biharsharif by which, on the basis of the report of the barpanch of Akbarpur Gram Panchayat dated 23-3-73 (Annexure 2), he took cognizance against the petitioner Puna Mahto u/s 420 of the Indian Penal Code.

One Dulari Kuer wife of Tannu Mahto who is now undisputedly dead, was the aunt of the petitioner Puna Mahto. Pitambar Mahto was father-in-law of Dulari Kuer. Pitambar Mahto executed a deed of gift dated 5-2-1935 with respect to seven acres and odd land in favour of one Munshi Mahto. On the same date this Pitambar Mahto is said to have executed another deed of gift with respect to two acres and Odd land in nvour of Dulari Kuer.

The allegation is that Munshi Mahto and his wife Barho Kuer used to serve Dulari Kuer and as such Dulari Kuer executed a deed of gift dated 15-10-1955 in favour of Barho Kuer and handed over to her the deed of gift executed in her favour by Pitambar Mahto. It transpired to Dulari Kuer that the petitioner had brought into existence a forged and fabricated deed of gift purported to have been executed in his favour by a person described to be Dulari Kuer wife of Tannu Mahto by falsely personating the real Dulari Kuer. Dulari Kuer, therefore, filed a petition of complaint in the Gram Panchayat which was forwarded by the Mukhia of the Gram Panchayat to the Sarpanch of the Gram Panchayat alleging that the petitioner brought into existence a forged and fabricated deed of gift by falsely personification. The Sarpanch examined the complainant Dulari Kuer on solemn affirmation and held an enquiry and found that the allegation of the complainant was correct. Since, however, the Sarpanch was of the view that the offence alleged was beyond the competence of the Gram Panchayat, he submitted a report (Annexure 2) to the Sub-Divisional Judicial Magistrace, Biharsharif for proper and necessary action and on receipt of this report, by the impugned order datad 16-4-73 the Sub-Divisional Judicial Magistrate took cognizance of an offence u/s 420 of the Indian Penal Code alleged against the petitioner.

The petitioner moved a petition before the Sub Divisional Judicial Magistrate after the coming into force of the new Criminal Procedure Code that the cognizance taken under the impugned ; order was bad in law as the Sub-Divisional Judicial Magistrate had taken cognizance without any fresh complaint or without examining the complainant on solemn affirmation. The Sub-Divisional Judicial Magistrate rejected this prayer of the petitioner by order dated 18-9-75 and proceeded to frame charge against the petitioner against which the petitioner moved the Sessions Judge. Patna in revision but the same was dismissed as being barred by limitation. The petitibirer has now moved this Court to quash the order dated 16-4-73 of the Sub-divisional Judicial Magistrate, Biharsharif.

Three contentions were raised by Learned Counsel for the petitioner. The first contention was that the allegations levelled in the complaint filed by Dulari Kuer was of a civil nature and the Sub-Divisional Judicial Magistrate should not have taken cognizance against the petitioner by the impugned order. The earlier deeds of gift as also the alleged deed of gift might relate to immovable property but the allegation in the complaint petition filed by Dulari Kuer in the Gram Cutcherry was that a forged and fraudulent deed of gift was brought into existence by a person falsely representing herself as Dulari Kuer. On the allegations made in the said petition of complaint, it cannot, therefore, be said that the complaint involves questions of civil dispute. This contention must, therefore, fail.

The second contention was that Rule 43(a) of the Bihar Gram Cutcherry Rules not having been followed, the Sub-divisional Judicial Magistrate was wrong in taking the cognizance and in support of his contention he relied upon a single Bench decision of this Court reported in Misri Mandal v. Nageshwar Singh and Anr.1975 P.L.J.R. 205 Learned Counsel for the State, how-ever, cited a Division Bench decision reported in Jagia Devi v. Sant Lal Rajak and Anr.1977 B.R.C.J. 9, wherein it was held that the case of Misri Mandal v. Ndgeshwar Singh and Anr., (supra) did not lay the correct law. When this Division Bench decision was brought to the notice of the Learned Counsel for the petitioner he did not press this point.

The third contention was that since Dulari Kuer the complainant, was dead the criminal proceeding started on her complaint, became infructuous. This is a new point which has been developed in course of the argument and no such point has so far been agitated before the court where the criminal proceeding is pending. It would be appropriate for the petitioner, if he is so advised, to agitate this matter before the court, where the crirninal proceeding is pending, for appropriate orders consequent upon the death of Dulari Kuer and to move higher courts in accordance with law if he is aggrieved by the order of the court below.

It would thus, appear that there is no merit in this application which is accordingly dismissed.