LAL CHAND AND OTHERS Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal of five appellants who have all been convicted by the learned Additional Sessions Judge, Hoshiarpur, under section 467, Indian Penal Code, and have been awarded a sentence of three years' rigorous Imprisonment each coupled with a fine of Rs. 50/ -, and also for the same term of imprisonment under section 82 of the Registration Act. Out of the five appellants, Lal Chand and Narainu are brothers, while Khemi Ram, Devi Ram and Daya Ram are Zaildars of villages Kanon and Kalwari.

(2.) THE five appellants were charged along with Ghungru, who has been acquitted, with the offences of cheating and preparing forged documents. It is not disputed that Net Ram and his elder brother Parma Nand lived for many years with the father of Lal Chand and Narainu. Parma Nand before his death gifted his entire land in favour of the father of these two appellants. A similar gift was made by Net Ram, who is said to have married the mother of Lal Chand and Narainu on their ther's death. Net Ram died some time in the beginning of 1960. The subject matter of the prosecution is the gift deed (Exhibit P. A.) executed by Net Ram in favour of the appellants Lal Chand, Narainu and their third brother Bir Singh on 8th of December, 1959. The proceedings were initiated on a somewhat strange and unusual report. One Khem Dass P. W. 3, a Lambardar of village Siri Kot reported to Sub -Inspector Gian Chand of Police Station Saraj on 12th of March, 1960 at 12.45 P. M. (Exhibit P.C.) that Lai Chand and Narainu got a gift deed executed in their favour from an old man Net Ram who was stated to be of 75 to 80 years of age and suffering from the infirmities of both deafness and dumbness. In the report it was stated that Net Ram had been living with the donees for the last 3 or 4 years. It was further stated in the report that Parma Nand had already gifted his land about 12 or 14 years ago in favour of Fateh Chand, father of Lal Chand and Narainu while he was alive. Net Ram, according to this report, died in the afternoon of 11th of March, 1960, in his village Kanon, and Khem Dass claimed to have joined his funeral procession. While the informant asserted that he had no doubt or suspicion in his mind that Net Ram had met his death in the natural course of events but "he had heard on the way that a forged document had been executed in favour of Lal Chand and his brothers by Net Ram". On receiving this report, Sub -Inspector Gian Chand recorded a first information report at Police Station Saraj at 2 -30 P. M. on 14th March, 1960, recapitulating the facts which had already been reduced to writing in the report of Khem Dass (Exhibit P.C.). One additional fact was mentioned in this report that Ghungru had personated as Net Ram before the Sub -Registrar before whom the document Exhibit P.A. was registered. Thereafter Gian Chand started investigation of the case, and the prosecution against, the five appellants and Ghungru was launched for the offences of cheating and preparing a forged document. In the first instance, all the accused were discharged by the Court of the Committing Magistrate. A revision was preferred and the rase was remanded. On remand, all the accused were committed for trial and the learned Sessions Judge of Hoshiarpur while holding that the offence of cheating under section 419, Indian Penal Code, had not been brought home against Ghungru, acquitted him. The five appellants have been convicted under section 467, Indian Penal Code, and section 82 of the Indian Registration Act.

(3.) MR . Mahajan submits that Sub -Inspector Gian Chand proceeded to investigate the case without any order of the Magistrate and the trial is accordingly vitiated. That the offences under which the appellants were charged are non -cognizable does not admit of any dispute, the only exception being section 419 for which Ghungru has been acquitted. In any event, the substantial point for investigation related to offences under sections 467, 468 and 471 of the Indian Penal Code and section 82 of the Registration Act which are all non -cognizable offences. It is contended that the irregularity committed by the Sub -Inspector is not such as can be cured by the provisions of section 537 of the Code of Criminal Procedure. Reliance has been placed on a judgment of Anna Chandy J. in Podan and others v. State of Kerala, (1962) 1 Cr. L.J. 339, where she held that: -