DHAR MISRA Vs. STATE OF U P

JUDGEMENT

(1.) BARKAT Ali Zaidi, J. Cheats and Tricksters have found a new way of grabbing property which is currently in vogue and that is to declare a live man 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.) 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 Sections 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 Anr. v. Umesh Kumar Singh and Anr. , 2006 (3) JIC 281 (SC) 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.