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2014 DIGILAW 526 (ALL)

VIJAY SHANKAR PATHAK v. STATE OF U. P.

2014-02-14

MANOJ MISRA

body2014
JUDGMENT Hon’ble Manoj Misra, J.—Heard Sri Manish Singh holding brief of Sri B.N. Pathak, learned counsel for the applicants; Sri D.R. Chaudhary, learned counsel for the informant; and learned AGA for the State. By the present application under Section 482 Cr.P.C., the applicants have sought for quashing of the charge-sheet dated 24.4.2012 as also the consequential proceedings in pursuance thereof pending in the Court of C.J.M., Mirzapur as Case No. 2731 of 2012 arising out of Case Crime No. 672 of 2011, P.S. Kotwali City, District Mirzapur, under Sections 419, 420, 467, 468, 471, 504, 506 I.P.C. 2. A perusal of the record reveals that Smt. Dharmdai wife of late Jai Shankar Pathak lodged a first information report at Police Station Kotwali City, District Mirzapur, on 12.12.2011, which was registered as Case Crime No. 672 of 2011. In the FIR, it has been alleged that on the death of informant’s husband, the informant became owner of the immovable property (land situated at Mirzapur) left by her husband, through succession, and, as a result, her name got mutated in the revenue records. It has been alleged that her Dewar (husband’s younger brother - Vijay Shankar Pathak - applicant No. 1) set up an imposter lady to impersonate the informant and by such impersonation got a fabricated sale-deed, of her land, executed in favour of other accused Manju Devi and Shambhu Nath (applicant Nos. 2 and 3 respectively). It has been alleged that the accused persons knowing full well that the sale-deed is forged and fabricated, used the same for mutation of their names in the revenue records, at Mirzapur. 3. The police carried out investigation and found sufficient material to prosecute the applicants and, accordingly, laid charge-sheet against the applicants under Sections 419, 420, 467, 468, 471, 504, 506 IPC, which gave rise to Case No. 2731 of 2012 in the Court of Chief Judicial Magistrate, Mirzapur. 4. Challenging the proceedings, the learned counsel for the applicants submitted that the disputed sale-deed was executed at Kolkata, therefore, the Court at Mirzapur had no jurisdiction to take cognizance and proceed with the matter. It has further been submitted that the sale-deed was executed on 6.4.1991 and the mutation was carried out in the year 1998 whereas the FIR was lodged in the year 2011, therefore, the proceedings are barred by limitation. 5. It has further been submitted that the sale-deed was executed on 6.4.1991 and the mutation was carried out in the year 1998 whereas the FIR was lodged in the year 2011, therefore, the proceedings are barred by limitation. 5. Sri D.R. Chaudhary, who has appeared on behalf of the informant, submitted that as the forged sale-deed was used at Mirzapur for the purpose of obtaining mutation, which forms part of the same transaction, therefore, the offences were also triable at Mirzapur by virtue of Section 184 read with Section 220 of the Code of Criminal Procedure, notwithstanding that the sale-deed was executed at Kolkata. It has further been submitted that for offences punishable with sentence higher than three years there is no limitation. For an offence punishable under Section 467 Cr.P.C., for which the applicants have been charged, the maximum sentence provided is imprisonment for life or with imprisonment for a term up to 10 years, therefore, for an offence punishable under Section 471 I.P.C., as a person can be punished with the same punishment as if he has forged such document, there would be no limitation, inasmuch as it relates to using a forged valuable security. It has been submitted that a sale-deed is a valuable security and, as such, forging a sale-deed would be punishable under Section 467 IPC, which provides for maximum sentence for life or up to 10 years and likewise, for an offence of using a forged sale-deed, the applicants could be punished with same sentence under Section 471 IPC. Further, an offence punishable under Section 468 IPC is punishable with sentence of seven years. It has thus been submitted that neither the prosecution is barred by limitation nor it can be said that the Court has no jurisdiction to proceed with the case. 6. Having considered the rival submissions, before assessing the weight of respective submissions, it would be useful to examine Sections 184 and 220 of Code of Criminal Procedure. Section 184 of the Code of Criminal Procedure, 1973 provides as follows : “Section 184. 6. Having considered the rival submissions, before assessing the weight of respective submissions, it would be useful to examine Sections 184 and 220 of Code of Criminal Procedure. Section 184 of the Code of Criminal Procedure, 1973 provides as follows : “Section 184. Place of trial for offences triable together— Where— (a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of Section 219, Section 220 or Section 221, or (b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of Section 223, the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences.” A perusal of clause (a) of Section 184 would reveal that where the offences committed by any person are such that he may be charged with and tried at one trial for each such offence by virtue of the provisions of Section 219, Section 220 or Section 221, the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences. Section 220 of the Code of Criminal Procedure provides as follows : “Section 220. Trial for more than one offence.—(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860).” 7. A perusal of sub-section (1) of Section 220 would reveal that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. As to what is the import of the words “same transaction” one has to take notice of judicial pronouncements. While interpreting the words “same transaction”, the Apex Court in the case of State of A.P. v. Cheemalapati Ganeswara Rao, (1964) 3 SCR 297 :1963 SC 1850, observed as follows: “What is meant by “same transaction” is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a, strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words “so connected together as to form” in clauses (a), (c) and (d) of Section 239 would make little difference. Now a transaction may consist of an isolated act or may consist of a series of acts.” 8. Likewise in the case of Mohan Baitha v. State of Bihar, (2001) 4 SCC 350 , at page 354, the Apex Court, while dealing with the import of the words “same transaction”, as occurring in Section 220 of the Code, observed as follows: “It may be noticed that under Section 220 of the Code of Criminal Procedure, offences more than one committed by the same persons could be tried at one trial, if they can be held to be in one series of acts, so as to form the same transaction. The expression “same transaction” from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not.” 9. From the law noticed above, what becomes clear is that for a series of acts to become part of the same transaction it is to be seen whether there is continuity of action and the sameness of purpose. From the law noticed above, what becomes clear is that for a series of acts to become part of the same transaction it is to be seen whether there is continuity of action and the sameness of purpose. The unity of purpose, as observed by the Apex Court, is the crucial test to judge whether the acts so connected together form part of the same transaction. In case at hand, a forged sale-deed was allegedly executed at Kolkata with respect to a property located at Mirzapur and the said forged and fabricated sale-deed was used at Mirzapur for the purpose of claiming title by obtaining mutation in the revenue records. As it is the admitted case of the parties that the sale-deed was in respect of land situated at Mirzapur, therefore, it can be assumed that the execution of the sale-deed and its subsequent production to claim title at Mirzapur, for the purpose of obtaining mutation, was part of the same transaction, inasmuch as, there would be no other use of the sale-deed than at Mirzapur where the property was located. Applying the aforesaid test, the purpose of fabricating the sale-deed at Kolkata got fulfilled by its production at Mirzapur. Otherwise, there would be no other purpose for a sale-deed than to claim title and all its consequential benefits which, in the instant case, would be at Mirzapur. Thus, the offences of fabricating a valuable security and, thereafter, its usage becomes part of the same transaction. Accordingly, by virtue of Section 184 (a) read with sub-section (1) of Section 220 of the Code of Criminal Procedure, it cannot be said that the Court at Mirzapur has no jurisdiction to proceed with the matter. 10. As far as the submission that the Court could not have taken cognizance as the act was perpetrated way back in the year 1998 is concerned, suffice it to say that there is no limitation for taking cognizance of an offence, which is punishable with imprisonment for a term in excess of three years. Admittedly, the applicants have been charged for an offence punishable under Section 467 IPC which provides for a maximum punishment of imprisonment for life or for 10 years, therefore, even for the offence punishable under Section 471 IPC the applicants can be punished for the same term. Thus, there can be no limitation for trial of the aforesaid offences. Admittedly, the applicants have been charged for an offence punishable under Section 467 IPC which provides for a maximum punishment of imprisonment for life or for 10 years, therefore, even for the offence punishable under Section 471 IPC the applicants can be punished for the same term. Thus, there can be no limitation for trial of the aforesaid offences. In view of the above, the application has no force and is dismissed.