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2017 DIGILAW 377 (HP)

Hitesh Bisht v. State of H. P.

2017-04-19

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. In this petition, an interesting legal question that after the death of complainant, whether her general power of attorney, through whom the complaint was filed, can be associated in pending proceedings to cancel the FIR, has been brought to this Court for consideration and adjudication. 2. Deceased Vidyawati has made an application under Section 156(3) of the Code of Criminal Procedure against the petitioners herein for registration of case under Sections 419, 420, 467, 468 read with Section 34 of the Indian Penal Code against them. On the direction of learned Judicial Magistrate, FIR No. 101/2008 came to be registered against them. The investigation was conducted by the police, however, without any result as nothing tangible could be collected against the accused-petitioners, connecting them with the commission of the offence they allegedly committed. The investigating agency, as such, had filed the cancellation report, Annexure P-1 with the submissions that no case under Sections 419, 420, 467, 468 read with Section 34 of the Indian Penal Code is made out against the accused-petitioners. The FIR, as such, was sought to be cancelled. 3. Notice was issued to the complainant but without any result as she had expired on 13.06.2011 i.e. well before the issuance of same. The death certification is Annexure P-3. 4. Subsequently, learned Judicial Magistrate proceeded to issue notice against the accused-petitioners. They have put in appearance through Sh. Rajesh Sharma, Advocate on 30th August, 2013. The zimini order dated 30.08.2013, Annexure P-5 (Colly.) makes it crystal clear that the death certificate qua the death of Smt. Vidyawati was produced in the Court and the same was taken on record. After that, the cancellation report remained listed from time to time for consideration till 7.7.2014, on which day, instead of considering the cancellation report, resorted to issue notice to the general power of attorney of the complainant. Now her general power of attorney has put in appearance and filed objections to the cancellation report. It is the objections so filed are presently at the stage of consideration before learned trial Court. 5. Now her general power of attorney has put in appearance and filed objections to the cancellation report. It is the objections so filed are presently at the stage of consideration before learned trial Court. 5. If not shocking, it is painful to point out that there was no occasion for learned Judicial Magistrate to have issued notice to the general power of attorney of the complainant for the reason that the general power of attorney executed by the deceased complainant had ceased to exist on her death and could have not been acted upon. It is here the trial Court has erred legally and as such an approach on the part of learned trial Court is not at all legally unsustainable. On the death of the complainant and the same disclosed to the trial Court on 30.08.2013, further course in accordance with law should have been resorted to in the matter. The entire proceedings, particularly after 7.7.2014 having taken in the matter are vitiated, hence legally unsustainable for the reason that on the death of complainant, the general power of attorney could have not been associated nor his objections invited or entertained. Therefore, I set aside all the orders passed in the matter by learned trial Magistrate after 7.7.2014 being perverse and relegate the parties to learned trial Magistrate with a direction to learned Magistrate to proceed afresh in the matter in accordance with law from the stage when the factum of death of complainant was disclosed and the death certificate qua her date of death was produced by the petitioners herein. In view of the cancellation report was filed long back in the month of September, 2008, there shall be a direction to learned Magistrate to decide the matter at the earliest preferably within three months from today. 6. The parties through learned counsel representing them are directed to appear in the trial Court on 5th May, 2017. The record of trial Court be sent back forthwith so as to reach there well before the date fixed. 7. With the above observations, this petition is allowed and stands disposed of.