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1996 DIGILAW 664 (PAT)

Upendra Mishra v. State Of Bihar

1996-10-03

G.S.CHAUBE, S.N.JHA

body1996
Judgment 1. The dispute in this Letters Patent relates to the entitlement of the appellant, to claim of Freedom Fighters Pension. To commemorate the 25th Anniversary of Independence, the Government of India introduced a scheme called Swatantrata Senani Samman Pension Scheme, 1972, for grant of pension to Freedom Fighters or to his dependent, if they were not alive. The appellant made application for such a grant, which was rejected on 19.8.86 on the ground of insufficient evidence. He filed a fresh application sometime in 1988. The Home (Special) Department of the State Government asked him to file proof in support of his claim. The concerned District Magistrate was also asked to verify the claim. The appellant filed plain typed copy of the General Register (G.R.) showing that he was a named accused in a criminal case under section 144 I.P.C. vide G.R. 623/59/42 with respect to an occurrence which had taken place on 29.8.42. He also later filed a certified copy of the relevant entry of the G.R. The dispute arose as to the correctness/genuineness of the document inasmuch as while in the typed copy aforesaid the name of the appellant was shown in the category "also", in the certified copy his name was shown in the category of absconders ("abs"). On 16.3.89 the District Magistrate, Madhepura, informed the State Government that the certified copy had been issued from the Record Room and was a genuine document. The claim of the appellant, accordingly, was considered favourably by the State Advisory Committee. The State Government vide letter dated 26.4.91, thereafter, sent its recommendation supporting the appellants claim for grant of pension. The Government of India, however, on 8.2.93 rejected the claim on the ground that the document did not mention about the final orders of the Court. Another ground assigned for rejecting the claim was that while the State Government had spoused his claim on the ground of being absconder (under ground) from 29.8.42 to 31.5.46, in the application the appellant had claimed pension on the basis of arrest. The appellant made fresh representation. On 17.8.93 the State Government again recommended his case. From perusal of the said letter, copy whereof is to be found at Annexure-D to the counter affidavit filed on behalf of the Union of India, it appears that the State Government noticed the fact that G.R. 623/59/42 had been registered against one Chhedi Jha and 32 others. On 17.8.93 the State Government again recommended his case. From perusal of the said letter, copy whereof is to be found at Annexure-D to the counter affidavit filed on behalf of the Union of India, it appears that the State Government noticed the fact that G.R. 623/59/42 had been registered against one Chhedi Jha and 32 others. On 29.1.43 chargesheet was submitted in the case showing 10 accused in custody and the rest as absconders. The name of the appellant figures at serial no. 10 in the absconders category. The State Government, accordingly, concluded that the period of absconding was more than six months and, therefore, the appellant was entitled to pension. The State Government also informed the Government of India that many of the accused whose names find place in the said G.R. have already been allowed Freedom Fighters Pension by the Central Government. Their names along with the particulars of P.P.O. number were enclosed with the said letter dated 17.8.93. The Central Government not being apparently satisfied with the reply of the State Government made query from the State Government vide its letter dated 15.10.93, copy at Annexure-C to the counter affidavit of the Union of India. It also made reference to the District Magistrate on 25.2.94. The District Magistrate vide his letter no.84-1 dated 31.5.94 informed the Additional Secretary,. Ministry of Home Affairs, Government of India, that the certified copy of the G.R. had been verified from the original record and there appears to be interpolations in the original record i.e. G.R. itself. In view of the said letter of the District Magistrate the Central Government again rejected the claim of the appellant, which was communicated to him by letter dated 3.8.94. The appellant challenged the said order by way of writ petition, C.W.J.C. No. 10031 of 1994. The said writ petition having been dismissed by the learned Single Judge, he has preferred his Letters Patent Appeal. 2. From perusal of the order of the learned Single Judge dated 5.9.95 it would appear that the writ petition was rejected on the ground that G.R. produced by the appellant in support of his claim had been found to be fabricated. The learned Single Judge also took into account the discrepancy in the two copies furnished by the appellant containing two different expressions "also" and "abs" as indicated above. The learned Single Judge also took into account the discrepancy in the two copies furnished by the appellant containing two different expressions "also" and "abs" as indicated above. Having regard to the nature of the controversy, we thought it appropriate to look into the original records, which we accordingly sent for. The original record, namely, G.R. has since been produced. 3. Having examined the contents of the G.R. with the assistance of the counsel for the parties, we are fully satisfied that the same does not contain any interpolation whatsoever. It may be mentioned even at the cost of repetition here that the respondents did not dispute that the certified copy produced by the appellant tallies with the relevant entries in the G.R.; their definite case is that G.R. itself is fabricated by reason of interpolation having been made therein. 4. It is true, as noted in the letter of the District Magistrate dated 31.5.94 (supra), that the entries in the G.R. No. 623/59/42 are in different inks, some of which in different hands as well but it is to be kept in mind that entries in the G.R. contain abstract of the progress of the case. it shows that on 5.9.42 entry was made in the G.R. with respect to occurrence which had taken place on 29.8.42 entitled "S.I.K.P. Singh vs. About 200 men unknown". Chargesheet dated 13.1.43 was submitted on 19.1.43 showing names of Chhedi Jha, Ramesh Jha and Jata Shanker in custody and 30 others as absconders. The appellant figures at serial no. 10 in the absconder list. Processes were issued for the arrest of the absconding accused on different dates. In the meantime, on 22.4.43 the said Chhedi Jha, Ramesh Jha and Jata Shanker were convicted. On the same" very date, 9 of the accused persons, who had apparently been apprehended in the meantime, were discharged under section 253 Cr.RC On 25.1.45, 13 of them were acquitted under section 251 Cr.RC. It is not necessary to give other details of the entries. What we want to emphasise is the fact that the events which have been recorded in the G.R. took place on different dates. It is, therefore, quite natural if the entries regarding those events were also made on different dates. It is not necessary to give other details of the entries. What we want to emphasise is the fact that the events which have been recorded in the G.R. took place on different dates. It is, therefore, quite natural if the entries regarding those events were also made on different dates. In the circumstances, if there was any difference in ink or writing in those entries, it cannot be said that the records were manufactured by making interpolations. In the circumstance, we hold that the opinion expressed by the District Magistrate in his aforesaid letter dated 31.5.94 was totafly unfounded, consequently, making the ground assigned by the Central Government unsustainable. As indicated above, it is not the case of the respondents that there was any discrepancy between the original records ahd the copies which were produced by the appellant in support of his claim. We are also satisfied on perusal of the different entries of the G.R. that the appellant remained absconding in the case for a period pf more than six months entitling him to grant of Freedom Fighters Pension. 5. Mr. G.P. Jayswal, learned Additional Standing Counsel, Central Government, submitted that in terms of the relevant clause of the scheme, absconders are also entitled to grant of Freedom Fighters Pension, provided they were proclaimed offenders or carrying a reward for their arrest or an order of detention was issued against them but the same was not served. Learned Additional Standing Counsel submitted that as the appellant does not fulfil any of the three additional conditions he cannot be said to be Freedom Fighter within the meaning of the said scheme. Counsel for the appellant submitted with reference to the entries in the G.R. that the processes under sections 87/88 Cr.RC, 1898 (corresponding to sections 82/83 of the New Cr.RC, 1973) had been issued against the appellant, which means that the appellant was a proclaimed offender. 6. We have considered the submissions of the counsel for the parties. The term proclaimed offender is not defined in the Cr.RC In sections 40(2)(ii), 41 and 73, as far as we could lay our hands on, refer to the term proclaimed offender but in those sections the term has been used in different contexts. 6. We have considered the submissions of the counsel for the parties. The term proclaimed offender is not defined in the Cr.RC In sections 40(2)(ii), 41 and 73, as far as we could lay our hands on, refer to the term proclaimed offender but in those sections the term has been used in different contexts. There cannot be any doubt having regard to the scheme and the provision contained in sections 82 and 83 of the new Cr.P.C. that where the Court is of the opinion that the person against whom warrant has been issued is absconding or concealing himself so that such warrant cannot be executed, it may publish written proclamation requiring him to appear on specified date and place and thereafter take steps for attachment of his property. Where proclamation has been issued under section 82 and steps are taken for attachment under Section 83 there cannot be any doubt that the person will be deemed to be a proclaimed offender. As noticed above, the record (G.R.) shows that such steps had been taken against the appellant. The records, in other words, do show that the appellant was a proclaimed offender. It would not be appropriate on our part to uphold the rejection of the claim of the appellant simply because the appellant had failed to produce the certified copy of the ordersheet of the case. There is nothing to suggest that the entries made in the General Register more than 50 years ago would be wrong to the extent that without issuing proclamation within the meaning of section 87 (Old Cr. RC) and attachment under section 88 (Old Cr.RC.) entries to that effect would have been made in the records, we accordingly hold that the appellant was a proclaimed offender and, therefore, he fulfils the additional condition of eligibility as prescribed in the scheme. 7. On the basis of the above discussions, we have no hesitation in concluding that the rejection of the claim of the appellant was not justified. Consequently the order of the learned Single Judge upholding the impugned order of the Central Government cannot be upheld. 8. In the result, the impugned order of the Central Government dated 3.8.94 (Annexure-14 to the writ petition) is set aside. Consequently, the order of learned Single Judge in the connected writ petition is also set aside. The appeal is, accordingly, allowed. The respondents, particularly respondent no. 8. In the result, the impugned order of the Central Government dated 3.8.94 (Annexure-14 to the writ petition) is set aside. Consequently, the order of learned Single Judge in the connected writ petition is also set aside. The appeal is, accordingly, allowed. The respondents, particularly respondent no. 2, the Secretary, Ministry of Home Affairs, Government of Bihar, is directed to issue order granting Freedom Fighters Pension in favour of the appellant in accordance with law.