KAMAL KATOCH Vs. STATE OF H. P.

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure (herein after referred to as the 'Cr.P.C.' for short), has been preferred against impugned order dated 30.4.2013 passed by learned Judicial Magistrate, 1st Class, Court No. 2, Palampur, whereby, in a private complaint preferred by the petitioner under Sections 463, 467, 468, 471 read with Section 34 of Indian Penal Code (herein after referred to as the 'IPC' for short), respondent No. 3 Arun Katoch was discharged by the trial Court after considering inquiry report of Police under Section 202 Cr.P.C., on the ground that at the time of commission of alleged offence respondent No. 3/accused Arun Katoch was only 6Â 1/2 years old and as such requisite intention/knowledge to commit alleged offence, could not be attributed to him.

(2.) It is claimed by the petitioner that in the record of Additional Registrar Births and Deaths, District Hamirpur, H.P., date of birth of respondent No. 3 Arun Katoch is recorded as 8.10.1983, whereas in the register of Gram Panchayat, it has been recorded as 15.4.1982 and in the School Leaving Certificate issued by Government Primary School, Bir Baghera, wherein respondent No. 3 Arun Katoch was admitted on 1.5.1987 in first class, the date of birth of respondent No. 3 Arun Katoch has been recorded as 15.4.1982, whereas at the time of taking admission on 9.4.1990 in DAV Public Senior Secondary School Alampur, District Kangra, H.P., during session 1990-91, date of birth of respondent No. 3 Arun Katoch has been shown as 10.8.1984 and therefore, the accused persons named in the private complaint i.e. Ajit Chand Katoch (father of respondent No. 2 Arun Katoch) and Arun Katoch have manipulated the date of birth of respondent No. 3 and thus committed the alleged offence and therefore, referring the documents filed with the present petition, it is contended that the trial Court, has committed illegality as police, at the time of making report under Section 202 Cr.P.C., has failed to consider the fact that ultimate beneficiary of the forgery committed by accused/respondent No. 2 is respondent/accused No. 3 Arun Katoch and thus opinion of Police is totally illogical and not sustainable and further that at the time of considering the issue of framing of the charge, under Section 227 of the Cr.P.C., only existence of prima facie case against accused was to be considered by the Court, but the trial Court despite material on record, has acted not only as a Post Office but like a mouth piece of the prosecution without considering the broad probabilities of the case, and without applying its judicial mind to the material available before it and has passed the impugned order in slipshod manner without taking into consideration the contentions raised by the petitioner/ complainant.

(3.) It is also argued on behalf of petitioner that Karan Singh Katoch is younger brother of respondent No. 3 Arun Katoch and in the record, as evident from copies of date of birth certificate, school leaving certificate, admission register and certificate issued by Registrar, Births and Deaths Registration, date of birth of Karan Singh Katoch is recorded as 8.10.1983 and date of birth of his sister Kiran has been recorded as 6.3.1980. Therefore, date of birth of respondent No. 3 Arun Katoch cannot be 10.8.1984, rather it is 15.4.1982 and the fact that respondent No. 3 Arun Katoch is elder brother of Karan Singh Katoch is known to respondent No. 3 Arun Katoch and therefore, he was having knowledge that his date of birth recorded as 10.8.1984 is incorrect, but despite that he has used the certificate having the said date of birth for obtaining job without taking any steps for correction of his date of birth prior to his employment. It is contended that trial Court has failed to consider this fact.