Himachal Pradesh High Court
Kamal Katoch vs State Of H.P. And Others on 15 October, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 309 of 2019 Reserved on: 4.10.2019 .
Date of Decision: 15.10.2019
Kamal Katoch. ...Petitioner.
Versus
State of H.P. and others. ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr.Rajesh Kumar, Advocate.
For the Respondents: Mr.S.C. Sharma, Additional Advocate General,
with Mr.Kamal Kant, Deputy Advocate General,
for respondent No. 1-State.
Mr.Ashwani K. Sharma, Senior Advocate with
Mr.Ishan Sharma, Advocate, for respondents
No. 2 and 3.
Respondent No. 4 already deleted from the
array of respondents.
Vivek Singh Thakur, Judge
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 6½ years old and as such requisite Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/10/2019 20:26:00 :::HCHP 2 Cr.MMO No. 309 of 2019 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 ::: Downloaded on - 15/10/2019 20:26:00 :::HCHP 3 Cr.MMO No. 309 of 2019 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.
4. Petition has been contested by respondent-State by filing reply to the petition, whereas respondents No. 2 and 3 have not preferred to file reply, but has opposed the contentions raised on behalf of petitioner and it is contended on behalf of the private respondents that even if, for the sake of arguments only, but without admitting the same, the allegations made in the complaint are considered to be true and correct, then also alleged forgery/manipulation in the date of birth of respondent No. 3 Arun Katoch, has taken place at the time of his admission in the school and at the time of admission, on 9.4.1990, his age on the basis of date of birth 8.10.1983 as recorded with Additional Registrar, Births and Deaths, was 6 years 6 months and Section 82 of IPC provides that nothing is an offence, which is done by a child under 7 years of age.
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5. It is further contended on behalf of private respondents that impugned order was passed on 30.4.2013, i.e. six years ago from filing of the present petition and during this period, the trial, before the trial Court, .
has almost been completed, as evidence therein has been recorded and after recording statement under Section 313 Cr.P.C. it has been fixed for arguments and, therefore, at this stage, for delay and laches also, present petition is not maintainable.
6. Further, that the complaint filed by the petitioner/complainant is a private complaint, wherein warrant case trial is going on before the trial Court, wherein exercising the powers under Section 245 Cr.P.C., respondent No. 3 Arun Katoch has been discharged, by passing the impugned order, which is a revisable order and further petitioner/complainant had not preferred any revision against the said order within the period of limitation provided for filing the Revision Petition and now to avoid the rigors of limitation period, present petition under Section 482 Cr.P.C. has been preferred, which is not permissible.
7. It is also contended that petitioner/complainant is none else, but cousin of respondent No. 3 Arun Katoch and nephew of respondent No. 2 Ajit Chand Katoch, who, on account of rivalry between the families, has filed the private complaint to harass the private respondents on account of enmity and for all aforesaid reasons present petition deserves to be dismissed.
8. Learned Additional Advocate General, in agreement with the counsel for the private respondents, in addition, has referred the facts narrated in the reply filed by the respondent-State and has submitted that present petition under Section 482 Cr.P.C. is not maintainable against the impugned order.
9. So far as filing of complaint on account of enmity between the petitioner/complainant and private respondents No. 2 and 3, is concerned, ::: Downloaded on - 15/10/2019 20:26:00 :::HCHP 5 Cr.MMO No. 309 of 2019 the same cannot be a ground for dismissing the complaint or the petition, in case there is substance in the complaint filed even by an inimical person.
10. In the impugned order, learned trial magistrate has assigned .
the reasons for discharge of respondent No. 3, Arun Katoch, on the basis of fact that at the time of alleged commission of offence, he was 6½ years old and thus at that time the requisite intention/knowledge to commit alleged offence could not be attributed to him. In view of Section 82 of IPC, I find no illegality in the findings returned by learned Magistrate.
11. Further in the complaint Annexure P-1 and/or the documents placed on record therewith, there is not even an iota of evidence, indicating any overt act or involvement of respondent No. 3 Arun Katoch in manipulating his date of birth or forging the documents, as alleged by complainant/petitioner. Admission Form was neither signed by respondent No. 3 Arun Katoch, nor he was competent to do so. Therefore, for want of sufficient material/ground to proceed against respondent No. 3, Arun Katoch, trial Court has rightly discharged him.
12. Impugned order was passed on 30.4.2013 in the presence of complainant and he was and is being duly represented by an Advocate. It is alleged in the petition that complainant was not knowing the meaning of impugned order passed by the Court and now it has come in his knowledge that complaint against respondent No. 3 Arun Katoch had been withdrawn and he was discharged and therefore, present petition has been preferred. The contention in this regard raised on behalf of petitioner appears to be a concocted one in order to justify the delayed challenge laid to the impugned order. It is not a case where complainant was pursuing the complaint only in person, rather, he was and is being represented by a duly qualified Advocate and also how and in what circumstances, the petitioner has become wise enough in the year 2019 to understand the purports of impugned order passed in the year 2013, has not been clarified in the ::: Downloaded on - 15/10/2019 20:26:00 :::HCHP 6 Cr.MMO No. 309 of 2019 petition. Therefore, on account of delay and laches also present petition is not maintainable, particularly, when the impugned order is a revisable order.
13. Contention raised on behalf of petitioner with regard to .
knowledge of incorrect date of birth and using the certificate with incorrect date of birth for obtaining employment by respondent No. 3, is also no help to the petitioner, as there is no such averment made in the complaint (Annexure P-1), preferred by complainant before Judicial Magistrate, 1st Class, Palampur, raising the point being agitated herein in this petition. It is true that there are documents placed with the petition indicating the date of birth of Karan Singh Katoch as 8.10.1983 and that of Kiran as 6.3.1980, however, these documents does not establish that Karan Singh Katoch is younger to respondent No. 3 Arun Katoch. As there is no such averment in the complaint itself in this regard, there was no occasion for the Judicial Magistrate to return findings thereupon. Petitioner cannot raise an issue, which is not mentioned in the complaint filed before the Judicial Magistrate, that too after six years of passing of the impugned order. Therefore, on this ground also, I am not inclined to interfere with the impugned order at this stage.
14. It is true that scope of Section 482 Cr.P.C. is not inhibited by any other provision of Cr.P.C. and this Court is empowered to pass an order under Section 482 Cr.P.C. to secure the ends of justice and to prevent the abuse of process of Court and give effect to any order passed under Cr.P.C. At the same time, it is also settled exposition of law that where there is a specific remedy available under Cr.P.C., a petition under Section 482 Cr.P.C. should not be entertained in ordinary circumstances. In present case, in the facts and circumstances discussed supra, no extraordinary circumstance has been established so as to invoke jurisdiction under Section 482 Cr.P.C. Therefore, in view of above discussion, I find no merit ::: Downloaded on - 15/10/2019 20:26:00 :::HCHP 7 Cr.MMO No. 309 of 2019 in the petition and accordingly it is dismissed. Pending application(s), if any, also stand disposed of.
(Vivek Singh Thakur), .
th
15 October, 2019 Judge
(Keshav)
r to
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