HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Criminal Misc. Application No.5563 of 2009 Subhank Prakash & Another ......... Applicants Versus State of U.P. & Another ......... Opposite Parties Hon'ble S.C. Agarwal, J.
This Application under section 482 Cr.P.C. has been filed with a prayer to quash the entire criminal proceedings of criminal case no. 2542 of 2008 arising out of crime no.218 of 2008 under sections 209, 420, 467, 468, 471, 120-B, 506 IPC, P.S. Milak, District Rampur (State Vs. Subhank Prakash & others) pending in the Court of A.C.J.M.-I, Rampur.
Heard Sri Viresh Misra, senior advocate assisted by Sri Shushil Shukla, learned counsel for the applicants, learned A.G.A. for the State as well as Sri Manish Tiwary, learned counsel for the complainant.
The facts are that F.I.R. in this case was lodged on the basis of order dated 7.3.2008 passed by Additional Chief Judicial Magistrate, Rampur on an application under section 156 (3) Cr.P.C. filed by the complainant Indrapal Singh - opposite party no.2 against Shubhank Prakash and Smt. Archana Gangwar (applicants) and co-accused Pradeep Singh, Rakesh Kumar, Shanker Lal and Devesh Kumar. It was alleged in the application that the complainant was a partner in the registered firm M/s. A.S. Associates, 25-A, Model Town, Bareilly. Jai Prakash and Digvijay Pal Singh were real brothers and had 50% share each in Gata No.41, 43, 61, 62 measuring 1.1290 hectares situated at Milak Asadullahpur, Tehsil Milak, District Rampur. They had other properties also. After the death of Jai Prakash, his son Shubhank Prakash and wife Smt. Archana Gangwar (applicants) became owners of half share belonging to Jai Prakash whereas the remaining half share of Digvijay Pal Singh was inherited by his wife Smt. Neerja Gangwar and consequently their names were entered in the revenue records. The agricultural land was got declared as abadi under section 143 of the U.P.Z.A. & L.R. Act by means of an application moved by Smt. Archana Gangwar wherein Smt. Neerja Gangwar was shown as co-sharer. The complainant purchased 4896 sq. mtrs. land out of half share of Smt. Neerja Gangwar in Gata Nos. 41, 43, 61 & 62 from Smt. Neerja Gangwar for a sum of Rs. 65 lacs on 20.9.2007 through registered sale deed. Late Digvijay Pal Singh did not execute any Will as his wife was the only heir. Accused Shubhank Prakash and Smt. Archana Gangwar in collusion with the other co-accused, prepared forged Wills of Digvijay Pal Singh and his mother Resham Pyari @ Resham Devi with intention to take undue benefit and filed the forged Wills in the Court of S.D.M., Rampur with their objections against the mutation proceedings. It was further alleged that in the year 2004, Smt. Archana Gangwar executed various sale deeds along with Smt. Neerja Gangwar as co-sharer. Smt. Neerja Gangwar also executed two sale deeds in the year 2007 wherein Smt. Archana Gangwar signed as a witness and thus admitted Smt. Neerja Gangwar to be a co-sharer. It was further mentioned in the application under section 156 (3) Cr.P.C. that on the basis of forged Wills of Digvijay Pal Singh and Smt. Resham Pyari, the applicants wanted to grab the property of the complainant.
The police, after investigation submitted charge sheet, whereupon cognizance has been taken by the Magistrate.
Sri Viresh Misra, learned senior advocate submitted on behalf of the applicants that Smt. Neerja Gangwar was not the sole heir of Digvijay Pal Singh. Digvijay Pal Singh left his mother Resham Pyari @ Resham Devi and his young wife Smt. Neerja Gangwar at the time of his death. In the year 2002, Digvijay Pal Singh executed a Will in favour of the applicants as well as his wife Smt. Neerja Gangwar. He was suffering from lever cancer. It was mentioned in the Will that he was being looked after by his wife, sister-in-law (applicant no.2) and nephew (applicant no.1). There was a provision in the Will that after his death, if Smt. Neerja Gangwar decided to remarry, she would be given a sum of Rs.5 lacs by the applicants and his property shall be inherited by the applicants, but if Smt. Neerja Gangwar did not remarry, she would be entitled to inherit 1/10 share of the property of Digvijay Pal Singh and remaining 90% share shall be inherited by the applicants. Learned counsel for the applicants submitted that purpose of the Will was that the family property must remain in the family. He further submits that at the time of death of Digvijay Pal Singh, his mother Resham Pyari @ Resham Devi was alive and she also executed a Will on 12.12.2002 in favour of his grandson Shubhank Prakash (applicant no.1), who was a minor at that time.
Learned counsel for the applicants submitted that both the Wills executed by Digvijay Pal Singh and his mother Resham Pyari @ Resham Devi are genuine and are not forged. Since 10% share was given to Smt. Neerja Gangwar through Will, Smt. Neerja Gangwar remained a co-sharer of the applicants and, therefore, no exception can be taken to the fact that the applicants and Smt. Neerja Gangwar jointly executed sale deeds of some small portions of the land and applicant no.2 was a marginal witness of two sale deeds executed by Smt. Neerja Gagwar. The contention is that admittedly Smt. Neerja Gangwar is a co-sharer having 10% share, therefore, simply by admission of Smt. Neerja Gangwar as co-sharer, it does not mean that she has a 50% share. Learned counsel further submits that the complainant is a builder and a colonizer. Smt. Neerja Gangwar did not have any authority to sell more than 1/10 share of the property left behind by her husband Digvijay Pal Singh. More so, there was no actual partition between the parties by metes and bounds and, therefore, specific portion of the property could not have been sold by Smt. Neerja Gangwar to the complainant. The only intention of the complainant was to hurriedly and surreptitiously buy the piece of land situated strategically near the Highway without paying proper stamp duty and, therefore, applicants immediately filed their objections before the mutation court and filed the Will dated 1.5.2002 executed in their favour by Late Digvijay Pal Singh. The applicants have also filed five revenue cases no.136, 137, 138, 139 & 140 of 2007-08 in the court of Tehsildar on 4.10.2008 under section 34 of the L.R. Act against Smt. Neerja Gangwar seeking correction in the revenue records; and the revenue court, by interim order dated 4.10.2007, had restrained Smt. Neerja Gangwar from transferring any part of land during pendency of the case. It was further submitted that Smt. Neerja Gangwar instituted Original Suit No.218 of 2007 in the Court of Civil Judge (Sr. Div.), Rampur against the applicants and also impleading the complainant as a proforma defendant on 7.11.2007 seeking a relief of cancellation of Will dated 1.5.2002 (copy of plaint is annexure no.5). The applicants have also filed Original Suit No.228 of 2007 in the Court of Civil Judge (Sr. Div.), Rampur against Smt. Neerja Gangwar as well as the complainant seeking cancellation of sale deed dated 20.9.2007 executed in favour of the complainant by Smt. Neerja Gangwar (copy of plaint is annexure no.6). The complainant - opposite party no.2 also filed Original Suit No.116 of 2008 on 24.4.2008 in the Court of Civil Judge (Sr. Div.), Rampur against the applicants and also Smt. Neerja Gangwar praying for a relief of permanent injunction against the applicants restraining them from raising any construction or alienating the property without proper demarcation. (copy of plaint is annexure no.7).
Learned counsel for the applicants further submitted that in the meantime applicants also instituted proceedings before Sub Registrar, Sadar, Rampur seeking posthumous registration of the Will dated 1.5.2002 executed in their favour by late Digvijay Pal Singh and after recording due evidence in the case, the Sub Registrar forwarded the file to District Registrar, Rampur seeking permission for registration of the Will in accordance with law and the District Registrar, Rampur, vide order dated 15.1.2008 had directed the Sub Registrar, Sadar, Rampur for immediate registration of the Will dated 1.5.2002 of late Digvijay Pal Singh posthumously, as it was found that Smt. Neerja Gangwar herself was not contesting the registration and objections of the complainant were found untenable and finally the Will was duly registered on 16.1.2008 in the office of Sub Registrar, Sadar, Rampur (copy of the duly registered Will is annexure no.8). Learned counsel for the applicants submitted that the dispute between the parties is purely of a civil nature. Various cases are pending between the parties in revenue court as well as civil court and no criminal offence is made out. Application u/s 156 (3) Cr.P.C. was filed by the complainant simply to pressurize the applicants.
The next leg of the contention raised by learned counsel for the applicants is that police did not properly investigate the case and submitted charge sheet against the applicants and other co-accused simply on the basis of statement of the complainant without even recording the statement of Smt. Neerja Gangwar or the marginal witnesses or without obtaining any expert opinion. The complainant had never met late Digvijay Pal Singh and he could not be a competent witness to show that the Will executed by Digvijay Pal Singh was a forged Will and there was no evidence on record to show that the Will was forged. He submits that it is for the revenue court and also for the civil court to decide whether the Will executed by Digvijay Pal Singh was genuine or forged and no criminal prosecution can be launched on that basis. He further submits that the complainant is a stranger to the family. He can have no personal knowledge regarding Will and has no right to challenge the Will executed by Digvijay Pal Singh. Moreover, the Original Suit No.218 of 2007 instituted by Smt. Neerja Gangwar in the civil court praying for declaration and cancellation of Will dated 1.5.2002 has been dismissed by order dated 24.2.2010 in default of the Smt. Neerja Gangwar and also on account of non-compliance of order dated 23.11.2009 by Smt. Neerja Gangwar. The contention is that after dismissal of original suit for cancellation of the Will, no criminal prosecution is maintainable against the applicants.
In reply to the arguments advanced on behalf of the applicants, Sri Manish Tiwary, learned counsel for the complainant - opposite party no.2 submitted that the complainant purchased the property through registered sale deed from Smt. Neerja Gangwar and, therefore, he steps in her shoes and has right to challenge the Will. He further submits that the alleged Will dated 1.5.2002 was never produced for registration during the lifetime of Digvijay Pal Singh and after his death, application for posthumous registration was made in the year 2008. His further submission is that the Court in exercise of powers under section 482 Cr.P.C. must not assess the allegations or the evidence at this stage and it is the job of the Magistrate concerned to assess the evidence during trial.
It was further submitted by Sri Tiwary that Smt. Archana Gangwar and Smt. Neerja Gangwar jointly executed some sale deeds and Smt. Archana Gangwar was also a marginal witness to few sale deeds executed by Smt. Neerja Gangwar and, therefore, she admitted Smt. Neerja Gangwar to be a co-sharer and now the applicants cannot claim that Smt. Neerja Gangwar does not have equal rights. According to learned counsel for opposite party no.2, the Will dated 1.5.2002 is forged and besides civil and revenue proceedings, criminal prosecution is also maintainable.
From the submissions of learned counsel for the parties, the following facts emerge :
(a) Late Jai Prakash and late Digvijay Pal Singh were real brothers and had equal share in the properties including the disputed property.
(b) Applicants are the heirs of late Jai Prakash and Smt. Neerja Gangwar is the wife of late Digvijay Pal Singh. The bone of contention between the parties is that in accordance with the Will dated 1.5.2002, Digvijay Pal Singh bequeathed 1/10 share of his properties in favour of his wife and 9/10 share in favour of the applicants whereas according to the complainant, the Will is forged.
(c) The Will has been posthumously registered by Sub Registrar, Rampur after giving public notice and Smt. Neerja Gangwar did not contest the proceedings though the complainant contested the same.
(d) Applicants initiated five revenue cases for correction of revenue records and also filed objections in the mutation proceedings initiated by the complainant on the basis of sale deed.
(e) Smt. Neerja Gangwar filed a suit for declaring the Will dated 1.5.2002 to be forged and void and for the relief of cancellation of the Will, but the same has been dismissed on 24.2.2010. (annexure no.RA-1)
(f) In Original Suit No. 228 of 2007 filed by applicant no.2 against Smt. Neerja Gangwar and the complainant, status quo order has been passed by Civil Judge (Sr. Div.), Rampur vide detailed order dated 18.3.2009. (annexure no.RA-2).
From the above facts, it is clear that the dispute between the parties is purely and predominantly of a civil nature. The Will has been posthumously registered. Whether the Will is forged or genuine has to be decided by the revenue court and also by the civil court. In these circumstances, initiation of criminal proceedings is simply an abuse of the process of the Court.
From a copy of the charge sheet, it is apparent that there are only five witnesses in the charge sheet. The complainant Indrapal Singh is the only witness of fact and the remaining four witnesses are police personnel, out of whom, one is the writer of the chick report and other three are investigating officers. In a criminal case, how can the Will be proved to be forged simply on the basis of the statement of the complainant, who is neither a member of the family and he might not have met the deceased Digvijay Pal Singh ever in his lifetime. Smt. Neerja Gangwar was the most important witness. She is the wife of Digvijay Pal Singh. She might have been the best witness, but she was not examined or interrogated by the investigating officer. The Will was never taken in possession by the investigating officer nor it was subjected to any forensic test or comparison of signatures through an expert though the Will has been filed in judicial proceedings. The investigating officer has mentioned in the case diary that comparison of signature or thumb impression is not possible as original Will could not be made available to him by the Court. In these circumstances, in the entire case diary, there is no evidence to show that the Will was forged except the bald statement of the complainant and the Court is constrained to hold that there is no legal evidence to prove the allegations of forgery.
In R.P. Kapur versus State of Punjab, AIR 1960 SC 866, the Apex Court summarised the following categories of cases where inherent power of the High Court can and should be exercised to quash the proceedings :
(i) where it manifestly appears that there is a legal bar against the institution for continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
The aforesaid decision was followed in another decision of the Apex Court in the case of K.L.E. Society and others versus Siddalingesh, (2008) 4 SCC 541.
In the instant case, the third category mentioned in the R.P. Kapur's case is attracted. There is no material in the case diary to prove the forgery of the Will. As already indicated above, the Will was never examined by any forensic or handwriting expert. Near and dear of Digvijay Pal Singh including his wife Smt. Neerja Gangwar were never interrogated by the investigating officer and the charge sheet has been submitted simply on the basis of statement of the complainant, who is a stranger to the family and had no occasion to see the deceased Digvijay Pal Singh in his life much less seen him signing. Moreover, the complainant had no business to challenge the Will executed by Smt. Resham Pyari @ Resham Devi, mother of Digvijay Pal Singh. The complainant does not seek any title from Smt. Resham Pyari @ Resham Devi and has no business to challenge her Will.
In view of the above, this Court has come to the conclusion that the dispute between the parties is of purely civil nature. There is no material in the case diary to establish the fact that the Will was forged. It is the matter of the civil court as well as the revenue court to decide the validity of the Will. The suit filed by Smt. Neerja Gangwar for cancellation of the Will has been dismissed by the civil court and thus the basic structure of the prosecution case has fallen like a pack of cards and the criminal prosecution is simply an abuse of the process of the Court and the entire proceedings are liable to be quashed on this ground.
In the trial court, a peculiar thing has happened. Despite the proceedings pending in the Court of Magistrate having been stayed by this Court by order dated 5.3.2009, the C.J.M., Rampur, on the application of the complainant, vide order dated 1.2.2011, has directed further investigation of the case. The application for amendment was moved by the applicant for this purpose on 1.4.2011, but at the time of arguments, no emphasis was given on the said application. When the proceedings of the trial court were stayed, the Magistrate had no business to direct further investigation.
In Reeta Nag Vs. State of West Bengal & others, (2009) 9 SCC 129, the Apex Court had held that after filing of the charge sheet, the Magistrate can permit further investigation on the application made by the investigating officer, but he cannot suo motu direct further investigation. Since the entire proceedings are being quashed, the order dated 1.2.2011 does not survive and automatically comes to an end.
One more thing can be noticed that the case was pending in the Court of A.C.J.M.-Ist, Rampur as criminal case no.2542 of 2008, but the order dated 1.2.2011 was passed by C.J.M., Rampur without any change in case number. If the case was transferred to the Court of C.J.M., a new number should have been allotted. It creates a confusion as to whether the case is at present pending in the Court of A.C.J.M.-Ist or C.J.M., Rampur.
Application u/s 482 Cr.P.C. is allowed.
The entire proceedings of aforesaid criminal case no. 2542 of 2008 under sections 209, 420, 467, 468, 471, 120-B, 506 IPC, P.S. Milak, District Rampur (State Vs. Subhank Prakash & others) presently pending either in the Court of A.C.J.M.-I, Rampur or in the Court of C.J.M., Rampur are quashed.
Dtd./- 27th May, 2011.
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