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Hari Saran Singh Vs. Patangal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 686 of 1964
Judge
Reported inAIR1967All486; 1967CriLJ1259
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145 and 145(7); Evidence Act, 1872 - Sections 35
AppellantHari Saran Singh
RespondentPatangal and anr.
Appellant AdvocateA.D. Giri, Adv.
Respondent AdvocateA.G.A.
DispositionPetition allowed
Excerpt:
criminal - right of legal representative - sub-section (7) of section 145 of criminal procedure code, 1898 - party in proceeding died during pendancy of case - application for legal representatives to be brought on record - on inquiry magistrate found out that applicant not legal representative of deceased - magistrate must bring on record applicant as legal representatives on basis extract of 'khautani' submitted by him - not empowered to make elaborate inquiry about applicant's claim. - .....under section 145 cr.p.c. he died during the pendency of the case before the magistrate. his legal representative had, therefore, to be brought on the record. the applicant, hari saran singh, claimed to be the son of bechu singh deceased, who, according to him, was also known as baldeo singh. therefore, he made an application before the magistrate praying for being impleaded as party to the proceedings in place of bechu singh deceased. the magistrate examined the sabhapati and lekhpal of the village with their respective records, under section 540 cr.p.c., and relying on their statements the magistrate held on 29-6-1963 that bechu singh deceased had no alias of being called baldeo singh and that the name of the applicant's father being baldeo singh, he was not the heir or legal.....
Judgment:
ORDER

Gyanendra Kumar, J.

1. One Bechu Singh was the opposite party in proceedings under Section 145 Cr.P.C. He died during the pendency of the case before the Magistrate. His legal representative had, therefore, to be brought on the record. The applicant, Hari Saran Singh, claimed to be the son of Bechu Singh deceased, who, according to him, was also known as Baldeo Singh. Therefore, he made an application before the Magistrate praying for being impleaded as party to the proceedings in place of Bechu Singh deceased. The Magistrate examined the Sabhapati and Lekhpal of the village with their respective records, under Section 540 Cr.P.C., and relying on their statements the Magistrate held on 29-6-1963 that Bechu Singh deceased had no alias of being called Baldeo Singh and that the name of the applicant's father being Baldeo Singh, he was not the heir or legal representative of Bechu Singh deceased. The applicant went up in revision before the Sessions Judge which was dismissed by him on 13-2-1966. Hence this revision.

2. It appears that none of the courts below cared to read Sub-section (7) of Section 145 Cr.P.C. which was relevant to the controversy in question. It runs as under:

'145 (7) when any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.'

3. In view of the above mandatory provision of law fee Magistrate had no choice except to implead the applicant as a party to the proceeding when he claimed to be the legal representative of the deceased party. The Magistrate, had no jurisdiction to embark upon on elaborate inquiry regarding the claim of the applicant.

4. It further appears that the learned Magistrate and the Sessions Judge omitted to consider the extract of Khatauni for the Year 1362 Fasli, which shows unambiguously that there was a man in village Bajah, known as 'Baldeo Singh alias Bechu Singh', whose father's name was Balmukand Singh. This authentic piece of documentary evidence should have been considered by the courts below before rejecting the applicant's claim of being the legal representative of Bechu Singh, whose alias was also said to be Baldeo Singh, according to the contention of the applicant.

5. I find that the Magistrate finally decided the case on 15-4-1964, without hearing fee applicant regarding the merits of his claim to the disputed property. That order has also to be set aside in view of the fact that the earlier order of fee Magistrate dated 29-6-1963 was illegal and without jurisdiction.

6. Accordingly, I allow the revision, set aside the orders of courts below and direct that the Magistrate shall implead Hari Saran Singh, applicant, as a party to the proceeding and then continue the inquiry according to law after giving him proper opportunity to put in written statement and produce evidence in respect of his claim of possession over the disputed property.


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