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2015 DIGILAW 382 (HP)

Anurag v. State of H. P.

2015-04-22

P.S.RANA

body2015
ORDER P.S.Rana, Judge. Present petition is filed under Section 482 of the Code of Criminal Procedure 1973. It is pleaded that father of petitioners No. 1 and 2 and husband of petitioner No.3 namely late Sh Mohinder Prakash Awasthi was in Forest Department of State of H.P. and superannuated in March 2001. It is further pleaded that FIR No.31 of 1996 under Sections 420, 409, 467, 468, 471, 109, 120B IPC read with Section 13 (2) of the Prevention of Corruption Act was registered against late Sh. Mohinder Prakash Awasthi in Police Station Enforcement North Zone Dharmshala on dated 11.12.1996 on the basis of some information revealing that late Mohinder Prakash Awasthi was in possession of disproportionate assets. It is further pleaded that during investigation 57 Indira Vikas Patra valuing Rs.1,55,000/- ( One lac fifty five thousand) were took into possession by Investigating Officer vide seizure memo dated 13.12.1996 and copy of seizure memo dated 13.12.1996 is Annexure P1 and P1/T. It is further pleaded that during investigation it was concluded in investigation that against income of Rs.11,35,690/- (Eleven lac thirty five thousand six hundred ninety) late Mohinder Prakash Awasthi was in possession of property of Rs.14,81,191/- ( Fourteen lac eighty one thousand one hundred ninety one) and challan was filed before learned Special Judge Chamba. It is further pleaded that charge was also framed. It is further pleaded that during pendency of criminal proceedings late Mohinder Prakash Awasthi died on dated 25.8.2008. It is further pleaded that after the death of Mohinder Prakash Awasthi learned Special Judge Chamba vide order dated 22.9.2008 abated the proceedings. It is further pleaded that petitioners are legally entitled for the release of Indira Vikas Patras valuing Rs.1,55,000/- (One lac fifty five thousand) which were took into possession vide seizure memo dated 13.12.1996 in FIR No. 31 of 1996. It is further pleaded that on dated 14.6.2010 petitioners filed application before learned Special Judge Chamba for release of Indira Vikas Patras valuing Rs.1,55,000/- (One lac fifty five thousand). It is further pleaded that learned trial court at the time of abatement order did not pass any order relating to case property of criminal case. It is further pleaded that learned Special Judge Chamba held that unless competent Court did not give finding the case property could not be released in favour of the petitioners. It is further pleaded that learned trial court at the time of abatement order did not pass any order relating to case property of criminal case. It is further pleaded that learned Special Judge Chamba held that unless competent Court did not give finding the case property could not be released in favour of the petitioners. It is further pleaded that learned trial Court did not comply the provision of Section 452 of the Code of Criminal Procedure 1973 at the time of passing of order of abatement. It is further pleaded that petitioners are legally entitled for the release of FDR valuing Rs.1,55,000/- (One lac fifty five thousand) in their favour. Prayer for acceptance of petition sought. 2. Per contra reply filed on behalf of non-petitioners pleaded therein that FIR No. 31 of 1996 relating to possession of disproportionate assets was registered against late Mohinder Parkash Awasthi. It is admitted that during the course of investigation 57 Indira Vikas Patras valuing Rs.1,55,000/- (One lac fifty five thousand) were took into possession by Investigating Officer. It is further pleaded that the order of release could be passed by learned trial Court as per provision of Section XXXIV of the Code of Criminal Procedure 1973. It is further pleaded that petitioners could file fresh application before learned trial Court. It is further pleaded that appropriate order be passed by the Court. 3. Court heard learned Advocate appearing on behalf of petitioners and learned Additional Advocate General appearing on behalf of non-petitioners and also perused the record carefully. 4. Following points arise for determination in the present petition. (1) Whether petition filed under Section 482 of the Code of Criminal Procedure is liable to be accepted as mentioned in memorandum of grounds of petition. (2) Final Order. Finding upon point No.1. 5. Submission of learned Advocate appearing on behalf of the petitioners that order of learned Special Judge Chamba dated 1.10.2010 is contrary to law is rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that the proceedings against the accused were dropped on the concept of abatement. It is held that Courts are under legal obligation to pass the order relating to case property at the time of conclusion of the trial. It is proved on record that the proceedings against the accused were dropped on the concept of abatement. It is held that Courts are under legal obligation to pass the order relating to case property at the time of conclusion of the trial. In the present case there is no conclusion of the trial but there is only abatement of the criminal proceedings due to death of accused. It is held that learned trial Court had rightly held that some finding of competent Civil Court ought to have come relating to succession certificate. It is held that succession certificate is essential from competent civil court of law. In the present case petitioners have placed on record legal heir certificate issued by Executive Magistrate Chamba. It is held that certificate issued by Executive Magistrate Chamba is not sufficient to release Indira Vikas Patras valuing Rs.1,55,000/- (One lac fifty five thousand) because Executive Magistrate is not civil Court. 6. Submission of learned Advocate appearing on behalf of the petitioners that legal heir certificate has been issued by Executive Magistrate placed on record and on this ground petition filed under Section 482 of the Code of Criminal Procedure be allowed is also rejected being devoid of any force for the reason hereinafter mentioned. It is held that Executive Magistrate is not legally competent to grant succession certificate under Indian Succession Act 1925. As per Section 371 of Indian Succession Act 1925 the competent court to grant succession certificate is District Judge. Hence it is held that release order cannot be passed in favour of the petitioners solely on the ground that legal heir certificate was issued by Executive Magistrate Chamba. It is further held that in abatement proceedings obtaining of succession certificate under Indian Succession Act 1925 is essential for release of Indira Vikas Patras valuing Rs.1,55,000/- (One lac fifty five thousand) in the ends of justice. It is held that it is not expedient in the ends of justice to release Indira Vikas Patras in favour of the petitioners until succession certificate is not obtained by the petitioners from concerned learned District Judge. Hence point No.1 is answered in negative. Point No.2 (Final Order) 7. In view of my findings upon point No.1 petition is dismissed with direction that amount of Rs. Hence point No.1 is answered in negative. Point No.2 (Final Order) 7. In view of my findings upon point No.1 petition is dismissed with direction that amount of Rs. 1,55,000/- (One lac fifty five thousand) will be released by learned Special Judge Chamba as per succession certificate issued by concerned learned District Judge as per Part X of Indian Succession Act 1925. Petition is disposed of. All pending application(s) if any are also disposed of.