Jotish Chandra Chaudhary v. The State of Bihar

Si.Im, J.-In this appeal by special leave Jotish Chandra Chaudhary, hereinafter referred to as the appellant, c~all~gl'.1' the order of a Division Bench of the Patna High Court m Crimi-nal Appeal No. 4 of 1967, refusing to interfere with the order of the learned Single Judge directing the prosecution of the appellant under s. 199 and s. 200 of the Indian Penal Code or such other sections as may be found to be applicable.

In order to appreciate the contentions of the learned counsel for the appellant it is necessary t? set out ~e rel~vant fact~. The appellant with his five sons constituted a Joint Hindu Fa~y. In 1952 partition took place. At that time three SI'.~ were nu.i;io;s, while two were majors. As a result of the partition the iomt family business, which was then being carried on under ~e ·name and style 'Ramnath Sarjug Prasad' was allotted exclusively to the appellant and his three minor sons. The appellant filed a suit (suit No. 5 of 1958) for damages against M/s Lakshmi Bom-bay Thread Factory and others on the ground that the defendants had infringed certain trade marks registered under . the Trade Marks Act, 1940. This suit was decreed by the District Judge, Patna, on March 31, 1962. The defendants filed an appeal against the said decree. This appeal was numbered First Appeal No. 227 of 1962. In the suit one contention of the defendants was that the suit was not mruntainable because although the suit had been instituted by the appellant in his capacity as proprietor of the firm Ramnath Sarjug Prasad, his three minor sons, who were also proprietors Of the firm according to the partition deed dated November 2, 1952, had not been impleaded. The learned District Judge held on this point that it was open to the plaintiff to sue on behalf of the entire fanilly comprising himself and his minor sons as karta of his family without impleading the minors. In the course of the hearing of the appeal before the learned Single Judge, the appellant filed a petition under 0. 1 r. HJ, C.P.C., on May 1, 1967, for addition of parties. On the same day the learned Single Judge directed the appellant to file an affidavit by May 2, 1967, giving the respective dates of birth of his three minor sons who were to be added as parties to the said appea 1. The appellant, who has a large family, did not remember the exact dates of birth of his sons and sought inforrnafion froni the school authorities. The appellant received information from the Princi-pal, Ram Mohan Roy Seminary, Patna, on May 2, 1967, that the date of birth of Subhas alias Ashok Kumar Jayaswal was June 9, 1954. On the same date the appellant swore and filed an affidavit stating therein the above date of birth of Subhas alias Ashok Kumar Jayaswal. The learned Single Judge in the judg-ment disposing ,of Appeal No. 227 of 1962 observed :

132 Sl:l'REME Cot 1RT REPORTS [1969] I SCR.

"In conclusion. I would like to mention that the statement made by plaintiff-respondent Jotish Chandra Chaudhary in the affidavit sworn and tiled by him in this Court on 2-5-1967 about the date of birth of his youngest son Subhas being 9th June. 1954 appears to be false to his knowledge. as shown by the fact that this plaintiff-respondent himself was one of the cxecu-tants in the Partition Deed (Ext. B) which is dated 2-11-1952 and he executed 1hc same for himself as well as guardian of his three minor sons including the aforesaid Suhhas. He is therefore directed lo show cause by 21-7-1967 as to why he shall not be prosecut-ed for committing offences under sections 199 and 200 of the Indian Penal Code or such other sections as may be found to be applicable."

The learned Sin!\le Judge. on cause being shown, was unable to accePt the pica of the appellant that the date of birth of Subhas had been wron.~ly mentioned due to a bona fide mistake. We may mention that Subhas was actually born on December 12, I 951. and not on June 9. 1954. The learned Single Judge observed

''This pica about bona fide mi.stake docs not appear io be all convincing or acceptable. As is well known that the entries in the School Registers regarding the dates of birth are often wrong being based upon wrong information given at the time of admission of the stu-dents and Jotish Chandra Chaudhary being himself the father of the boy and being a party to the aforesaid deed of partition. could not be unaware of the fact that the date of birth as eniercd in the School Register was not correct. In this connection. it may he mentioned that he is not an illiterate villager but a business man living in Patna Ciiy and running a business since a long time.

On a consideration of all the above aspects, I am quite unable to accept the pica about the date of birth having hcen wrongly mentioned in the affidavit due to bona fide mistake and it is evident that this date was dcliberatclv oivcn as it was thought at that time that this version ~ould be supported by the certificate ob-tained from the school, and the fact that could be detec-ted by reference to the registered· deed of partition which has been executed in t 952. had been overlooked at that time."

With respect to the learned Judge. he has not considered whether anv advantage was likely to accrue to the appellant for giving the date of birth of his son Subhas as June 9. I 954. instead of December J 2, 195 J. As far as the appeal pending be-fore the learned Single Judge was concerned, it is not disputed that this change did not make any difference to the decision of the question of impleading the .minor son as a party or the decision on the question whether the suit was maintainable or not. Before a person can be punished under s. 199, I.P.C., it has to be proved, Ill inter alia, that the false statement is 'toucning any point material

to the object for which the declaration is made'. There is no suggestion that the change of the ·birth date touched any material point in F.A. No. 227 of 1962. One of the ingredients of an offence under s. 200, I.P.C., is that the declaration should be used or attempted to be used corruptly. It has not been explained to us how the declaration was used 'corruptly'. Considering that the date of birth was obtained from the school records, and that the appellant stood to gain no advantage by giving a wrong date, the learned Single Judge should not, in our view, have directed the lodging of complaint under s. 199 ors. 200. I.P.C. It is not clear what other section of Indian Penal. Code the learned Single Judge had in view.

In view of the above conclusion it is not necessary to consider whether the judgment. directing the filing of complaint was in con-travention of s. 479A(6), Cr. P.C.

In the result the appeal is allowed and the orders of the Divi-sion Bench and the learned Single Judge set 'aside and the com-plaint, which is stated to have already been filed, 'quashed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I of 1968.

Appeal by special leave from the judgment and order dated November 10, 1967 of the Patna High Coun in Criminal Appeal No. 4 of 1967.

Sarjoo Prasad and S. N. Prasad, for the appellant.

lJ .. P. Singh, for the respondent.