Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 480 (PAT)

Kapildeo Prasad v. State Of Bihar

2007-03-07

GHANSHYAM PRASAD

body2007
Judgment 1. This application under Sec. 482 of the Code of Criminal Procedure has been filed to quash the order taking cognizance dated 3.1.2007 passed by the Chief Judicial Magistrate, Nalanda at Biharsharif in Rajgir PS. Case No. 126/06 thereby and thereunder the court below has taken cognizance against this petitioner and others under Sections 420, 466, 471 and 120B of the Indian Penal Code. 2. It appears that there was a proceeding under Sec.107 of the Code of Criminal Procedure in the Court of Sub-Divisional Magistrate, Rajgir. In that very proceeding one Manoj Malakar was the member of 1st party. On the basis of notice issued by the court Krishna Malakar filed Hazri in the Court of Sub-Divisional Magistrate claiming himself as Manoj Malakar. This petitioner was holder of Vakalatnama on behalf of Krishna Malakar in the name of Manoj Malakar. When the matter came to the knowledge of the court, the Sub-Divisional Magistrate filed Fardbeyan before Rajgir police upon which the police registered a case under Sections 420, 467, 468, 471 of the Indian Penal Code against Krishna Malakar. However, the police after investigation submitted charge-sheet against this petitioner also. Accordingly, the court below has taken a cognizance against this petitioner vide order dated 3.1.2007. 3. Submission of learned counsel for the petitioner is that the petitioner is a practising Advocate. He accepted the Vakalatnama on behalf of Manoj Malakar and also filed Hazri before the Court of Sub-Divisional Magistrate on behalf of Manoj Malakar. He had no knowledge about the true identity of Manoj Malakar. Therefore, this petitioner being an Advocate cannot be fastened with any criminal liability as alleged. Next submission of learned counsel is that Fardbeyan has been lodgeed by Sub-Divisional Magistrate in violation of Sections 340 and 195 of the Code of Criminal Procedure. It was the duty of Sub-Divisional Magistrate to make inquiry in the matter and file a complaint case before an appropriate court. He cannot entrust the investigation to other agency. 4. Considered the submission of learned counsel for the petitioner and also the provisions of Sections 340 and 195(1)(b) of the Code of Criminal Procedure. In Fardbeyan there is absolutely no allegation against this petitioner. This petitioner is a practising Advocate. He accepted Vakalatnama on behalf of Manoj Malakar in good faith. He cannot entrust the investigation to other agency. 4. Considered the submission of learned counsel for the petitioner and also the provisions of Sections 340 and 195(1)(b) of the Code of Criminal Procedure. In Fardbeyan there is absolutely no allegation against this petitioner. This petitioner is a practising Advocate. He accepted Vakalatnama on behalf of Manoj Malakar in good faith. There is nothing on record to show that there was any conspiracy on the part of this petitioner with Krishna Malakar to file Hazri on behalf of Manoj Malakar. 5. Other submission of learned counsel for the petitioner also appears to have merit. The admitted fact is that the offence was committed in the court by filing false Hazri on behalf of Manoj Malakar, therefore Sec.340 comes to play in that very case. Sec.340 Cr.P.C. postulates that the court itself has to make preliminary inquiry into the matter and thereafter to file a complaint case before the appropriate court as provided under Sec.195(1)(b) of the Code of Criminal Procedure. There is no provision to lodge Fardbeyan before the police for the offence committed in relation to any proceeding in the court. 6. Thus, having regard to the facts and circumstances of the case as well as the law applicable thereto it is quite clear that taking cognizance against this petitioner is neither legal nor justified. Accordingly, this application is allowed. The impugned order of cognizance in respect of this petitioner only is quashed.