Punjab-Haryana High Court
Paramjit Kumar Jhamat vs State Of Punjab And Others on 20 November, 2023
204 2023:PHHC:147418
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-56216-2022
Date of Decision: November 20, 2023
PARAMJIT KUMAR JHAMAT .......Petitioner
Versus
STATE OF PUNJAB AND OTHERS ......Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present:
Mr. S.P. Soi, Advocate and
Mr. Sahil Soi, Advocate for the petitioner.
Mr. IPS Sabharwal, DAG, Punjab.
Mr. L.S. Mann, Advocate for respondents No.2-10.
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HARPREET SINGH BRAR, J. (ORAL)
The petitioner has approached this Court by way of filing the
present petition under Section 482 CrPC seeking quashing of order
dated 05.11.2022 passed by learned SDJM, Nakodar vide which
application of respondent Nos.2-10 under Section 302 of CrPC filed
through their alleged attorney Mohan Lal s/o late Dhanna Ram in case
No.CHI/230/2013 (arising out of FIR No.220 dated 19.08.2012
registered under Sections u/s 419, 420, 465, 467, 468, 471 and 120-B
IPC, P.S. Sadar, Nakodar, District Jalandhar Rural) has been allowed.
2. Learned counsel for the petitioner inter alia contends that
the petitioner is the grandson (i.e. a daughter's son) of the late Sh.
Nazar Ram. Late Sh. Nazar Ram used to reside in the U.K. and during
his visit to India he used to stay with the family of the petitioner.
Respondent Nos. 2 to 10 are also permanent residents of the U.K. and
are the other legal heirs of late Sh. Nazar Ram. In June 2012, one
Shadi Ram s/o Late Sh. Dhanna Ram, who is the brother-in-law of
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2023.11.24 09:58
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Respondent No. 4-Bakshi Ram, claiming to be attorney of
respondents No.2-10 made a complaint to the Police alleging that the
petitioner & others have forged the will of late Sh. Nazar Ram. Even
before making the complaint, Shadi Ram obtained a self-serving report
from a handwriting expert. Furthermore, a pre-FIR inquiry was
conducted by the police wherein none of respondent nos. 2 to 10 nor
their alleged attorney Mohan Lal appeared. The police scribbled the
statements of Shadi Ram and some others and registered FIR No. 220
dated 19-08-2012 at PS Sadar Nakodar, Distt. Jalandhar against the
petitioner and also against two advocates from Ludhiana. The police
conducted investigation and filed a challan in the court on 09-10-2013.
None of the private respondents nor their present attorney Mohan Lal
appeared anywhere in the pre-FIR Inquiry or in the Investigation nor do
their names figure anywhere in the list of witnesses.
3. Learned counsel for the petitioner further contends that
controversy involved in the present case stands settled by the
observation of the Hon'ble Supreme Court in Jimmy Jahangir Madan
Vs. Bolly Cariyappa Hindley (Dead by LR's) 2004(4) RCR (Criminal)
1001(SC).
4. Having heard learned counsel for the parties and after
perusing the record, it transpires that Shadi Ram unfortunately passed
on 19.11.2017 during the pendency of trial. On 31.07.2019 one Mohal
Lal claiming himself to be brother of Shadi Ram-complainant moved an
application under Section 302 CrPC. The application filed by Mohal Lal
was dismissed following which he approached this Court by way of filing
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of CRM-M-15624-2021 which was dismissed as withdrawn on
09.04.2021, however, liberty was granted to file appropriate application
under Section 302 CrPC on behalf of main complainants before the trial
Court.
5. In spite of the fact that the right of Mohan Lal to pursue the
case under Section 302 CrPC was curtailed and this Court has granted
liberty only to the legal heirs to pursue the case, respondents No.2-10
have not filed any application under Section 302 CrPC in their own
capacity rather an application dated 16.03.2022 (Annexure P-10) was
filed through the same power of attorney holder Mohan Lal which is not
permissible as per the law laid down by Hon'ble Supreme Court of India
in case of Jimmy Jahangir Madan (supra). Para 9 of the judgment is
reproduced hereunder:-
"The language of Sections 205 and 302 of the
Code is similar. Under Section 302 of the Code, a party can
make an application himself to continue the prosecution or
the same can be made by a pleader. As provided
under Section 2(q) of the Code, the prayer to continue the
prosecution can be made either by a legally qualified
person, who is authorised to practise in the court under
the Advocates Act; or by any other person which would
obviously include a power of attorney holder in which
eventuality such permission can be granted by the court
where the prosecution is pending only if it is sought by the
person who is entitled to continue the prosecution and not
by the power of attorney holder. Under Section 205 of the
Code, an accused is required to appear in person but his
personal appearance can be dispensed with and he can be
allowed to be represented by a pleader. Likewise,
under Section 302 of the Code, a person, who is entitled to
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continue the prosecution, is required to make an application
himself but under both the provisions aforesaid, instead of
taking steps personally, a party can be represented through
a pleader. Power of attorney holder can represent the
concerned party under both the provisions of the Code, in
case permission for such representation is sought from the
court by the concerned person and granted by it. But where
no such permission is sought by the concerned person,
meaning thereby, in the case of Section 205 of the Code an
accused and in the case of Section 302 of the Code a party
who has right to continue the prosecution, power of attorney
holder cannot be allowed to represent the concerned person
in the proceeding."
6. Learned counsel for the respondents No.2-10 has not been
able to controvert the factual position and the ratio of law as laid down
by the Apex Court in Jimmy Jahangir Madan (supra).
7. Keeping in view the facts and circumstances of the case
and the judgment of the Hon'ble Supreme Court in case of Jimmy
Jahangir Madan (supra), the present petition is allowed and the
impugned order dated 05.11.2022 (Annexure P-11) passed by the
learned Sub-Divisional Judicial Magistrate, Nakodar in case
No.CHA/230/2013 arising out of FIR No.220 dated 19.08.2012
registered at Police Station Sadar, Nakodar, District Jalandhar Rural is
quashed.
8. Pending application(s), if any, shall also stand disposed of.
20.11.2023 (HARPREET SINGH BRAR)
tejwinder JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
TEJWINDER SINGH
2023.11.24 09:58
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integrity of this document
