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2004 DIGILAW 756 (PNJ)

Mohinder Singh v. State of Punjab

2004-07-26

SATISH KUMAR MITTAL

body2004
JUDGMENT Satish Kumar Mittal, J. - Petitioner-Mohinder Singh, retired Inspector of Police, has filed this petition under Section 482 Criminal Procedure Code for quashing of FIR No. 269 dated 23.11.1998 under Sections 420, 467, 468, 471 and 120-B Indian Penal Code registered against him at Police Station Kotwali, Patiala. 2. The aforesaid FIR has been registered against the petitioner on the allegation that he had altered his date of birth from 16.8.1929 to 1.10.1930 by forging the official record. 3. Prior to the registration of the aforesaid FIR, the petitioner stood retired from service on 30.9.1988 after attaining the age of superannuation by taking his date of birth as 1.10.1030. Subsequently, his pension was not released on the ground that he had wrongly rendered more service because of his manipulation in his date of birth. 4. The petitioner challenged the decision of the Department by filing a Civil Suit No. 9.5.1990. The said suit was decreed by the trial Court on 29.9.1999. In the said suit, the following finding was recorded regarding the date of birth of the petitioner :- "... I have considered this contentions of the learned counsel for the plaintiff. Date of birth of the plaintiff is to be taken as 1.10.1930 as per his School Leaving Certificate. The plaintiff cannot be held liable in the latered (sic) in the date of birth mentioned in the service record as 16.8.1929 as the said record remained with department concerned and the same was never came in possession of the plaintiff as is evident from deposition of the plaintiff as is evident from deposition ASI Tarsem Singh DW-1. The date of birth of the plaintiff is to be treated as 1.10.1930 by taking into consideration his date of birth as mentioned in the said certificate containing in the service record of the plaintiff. xx xx xx xx xx In the result in view of my above findings, decree for declaration to the effect that the plaintiff is entitled to pensionary benefits by treating his date of birth to be 1.10.1930 along with mandatory injunction directing the defendants to release pension of the plaintiff and to pay interest i.e. 12% per annum from the date of filing of the suit till realisation, is awarded in favour of the plaintiff against the defendants with costs. Decree sheet be drawn and file be consigned to the record room." 5. Decree sheet be drawn and file be consigned to the record room." 5. Against the aforesaid judgment and decree, the respondents filed an appeal before the learned Addl. District Judge. The said appeal has also been dismissed vide judgment dated 14.1.2002. A certified copy of the said judgment has been placed on the record by the counsel for the petitioner which has been marked as Annexure A. 6. Counsel for the petitioner contends that the aforesaid judgment between the parties has become final. This fact has not been disputed by the counsel for the respondent. During the pendency of the aforesaid Civil suit, the impugned FIR has been lodged against the petitioner. The counsel for the petitioner contends that in the civil suit pecific finding has been recorded by the Civil Court that the date of birth of the petitioner is 1.10.1930 and the said date was never changed, as alleged by the respondents, and the enquiry report submitted by the Enquiry Officer was not believed. The Civil Court has recorded a finding of fact, on the basis of evidence of both the parties, that the date of birth of the petitioner was rightly recorded as 1.10.1930. He submitted that the finding recorded by the Civil Court in the aforesaid civil suit will be binding on the Criminal Court. Thus, continuation of the impugned FIR is nothing but an abuse of the process of the Court, therefore, the same is liable to be quashed. 7. Counsel for the respondent did not dispute the factual position of the case but he submitted that in the civil suit, there was no issue whether the date of birth of the petitioner was 1.10.1930 and whether the petitioner has forged his date of birth in the official record or not ? Therefore, the finding recorded in the Civil Court will not be binding on the Criminal Court and thus the impugned FIR is not liable to be quashed. 8. The aforesaid argument of the counsel for the respondent is without any substance. In a suit between the parties, a positive finding regarding date of birth of the petitioner has been recorded by the Civil Court. The judgment of the trial Court was affirmed in appeal. 8. The aforesaid argument of the counsel for the respondent is without any substance. In a suit between the parties, a positive finding regarding date of birth of the petitioner has been recorded by the Civil Court. The judgment of the trial Court was affirmed in appeal. Before the Appellate Court, the Department raised only one issue as to whether the petitioner was born on 16.8.1929 or on 1.10.1930 or whether he has changed his date of birth in the official record. In this regard, the following observation was made by the first Appellate Court in its order :- "8. Findings of the learned trial Court have been assailed on the ground that the learned trial Court did not appreciate the law, facts and evidence on record in its right perspective, therefore, this appeal deserves to be accepted and as such suit of the respondent is liable to be dismissed. The bone of contention is as to whether the respondent was born on 16.8.1929 or 1.10.1930. As per the case of the appellants, the character roll of the respondent showed that he was born on 16.8.1929 and that he changed his date of birth in the character roll to 1.10.1930, and an enquiry was also held by the DSP, Varinder Singh, who held that date of birth of respondent has been changed in the record from 16.8.1929 to 1.10.1930. Learned G.P. has submitted that thus, the respondent changed his date of birth to his advantage. Therefore, this appeal deserves to be accepted. 9. On the other hand, the learned counsel for the respondent has submitted that in the character roll, the date of birth is not visible because a paper has been pasted thereon. He has submitted that the appellants have not produced any document on the record, showing that the date of birth of the respondent is 16.8.1929. He has submitted that as per School Leaving Certificate, exhibit PW-1/16, the respondent was born on 1.10.1930. He has also referred to copy of admission and withdrawal register of Khalsa High School, Sham Nagar, where also his date of birth has been shown as 1.10.1930. This document is lying at page 167 of the enquiry file. Thus, there are two documents, showing the age of the respondent as 1.10.1930, whereas, there is no document on the record, showing the date of birth of the respondent as 16.8.1929. 10. This document is lying at page 167 of the enquiry file. Thus, there are two documents, showing the age of the respondent as 1.10.1930, whereas, there is no document on the record, showing the date of birth of the respondent as 16.8.1929. 10. The appellants also got (conducted) an enquiry into the matter and the enquiry file is exhibit D-7. The respondent was not given an opportunity to cross-examine the witnesses. He was also not served with any charge-sheet. Therefore, the report of the Enquiry Officer, holding him guilty of tampering with his date of birth by pasting a slip thereon cannot be of any advantage to the appellants especially when he was not in possession of his record at any stage. Therefore, the findings of the learned trial Court are affirmed on issue Nos. 1 and 2. Therefore, this appeal fails and same is hereby dismissed." 9. In view of the aforesaid finding of the Civil Court, in my opinion, the continuation of the impugned FIR is nothing but an abuse of the process of the Court and the same is liable to be quashed. 10. Hence, this petition is allowed and the impugned FIR No. 269 dated 23.11.1998 under Sections 420, 467, 468, 471 and 120-B Indian Penal Code registered against the petitioner at Police Station Kotwali, Patiala and all the subsequent proceedings, are quashed. Petition allowed.