Akhilesh Singh vs State Of U.P. And Another
2014 Latest Caselaw 8944 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

? A.F.R.
 
Court No. - 44
 

 
Case :- APPLICATION U/S 482 No. - 39019 of 2012
 

 
Applicant :- Akhilesh Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Hari Pratap Gupta
 
Counsel for Opposite Party :- Govt.Advocate,J.P. Mishra
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application under Section 482 Cr.P.C. has been filed seeking the quashing of the entire proceeding of criminal case No.775 of 2011 (Jagdish Singh Vs. Akhilesh Singh and others) u/s 419, 420, 467, 468, I.P.C. P.S. Sahjanwa, district Gorakhpur, pending in the court of A.C.J.M., Court no.17 Gorakhpur.

Pleadings have been exchanged between the parties.

The contention of the counsel is that the alleged acts of forgery and fabrication and cheating committed by the applicant are based on the ground that the applicant has fabricated a will of Smt. Pyari Devi and thereafter attempted to grab her property on the basis of forged will. The submission is that the validity of the will is the subject matter of civil litigations which are going on between the applicant and opposite party. Further contention is that no final adjudication has been done so far in the civil litigation and the present complaint,therefore, has been brought prematurely in order to create pressure on the applicant so that he may not pursue the civil cases in right earnest. The submission is that the criminal prosecution is bad in the eyes of law in the wake of pendency of civil litigation between the parties with regard to the same documents. Certain other submissions on pure questions of fact have also been touched upon.

Sri Ashok Srivastava, advocate holding brief of Sri J.P. Mishra, learned counsel for opposite party, has rebutted the arguments placed on behalf of the applicant. The submission placed before the court is that the criminal prosecution and the civil litigation are not mutually exclusive proceedings and it cannot be said either as a matter of law or even of prudence that in the wake of pendency of one proceeding another proceeding shall automatically get rendered not maintainable. Further submission is that actually after forging the will of the same Smt. Pyari Devi, the applicant had also got the lady murdered and a criminal prosecution of murder is also going on against him with regard to the same offence which is also a strong circumstance to indicate the forgery as, it has been argued, that the applicant in order to grab her property has got her eliminated. All, other factual submissions made on behalf of the applicant  have  also  been vehemently opposed by the learned counsel who has placed his  rival version regarding the same.

The court has considered the rival arguments made at bar and perused the record in the light of the same. So far as maintainability of criminal prosecution in the wake of the civil litigation pending in between the parties is concerned the law on the point is well settled by Hon'ble Apex Court.

A particular transaction can give rise to a criminal offence and also a  civil liability both. The civil cases are to be decided on the basis of preponderance of the probability while in the criminal cases, the offence has got to be proved beyond all reasonable doubt. There are several reliefs which can only be sought in a civil court. If a will has been forged, or if the sale deed has been forged, the aggrieved party has to move in the civil court in order to get it cancelled. It is beyond  the power and ambit of a criminal court dealing  with a criminal trial to do  so  and  it cannot grant that relief. But if the same forgery has been done in pursuance of fabricating signatures or by committing some impersonation of any kind  or any such other forgery which constitutes the culpable criminal offences, the same has to be brought to a logical end only in a criminal court. Simply because a particular transaction  is giving rise to  some civil liability  or has some civil overtones it shall not automatically render, the criminal prosecution infructuous. Of course there are cases and there are matters which are primarily  and principally  of civil nature and  some times  deliberately a party may give it an artificial complexion of  criminal litigation. It is only in such cases that the courts step in and provide relief to the aggrieved party and not otherwise. The court is abstaining to make any elaborate analysis of facts and circumstances of the case and is deliberately avoiding to enter into  a threadbare discussion of the same, lest it may cause any prejudice to either side at the stage of the trial. Suffice it to say that the allegations made in the complaint and the material produced on behalf of the complainant make out a prima facie case against the applicant and it is not a case in which the court may feel inclined to exercise its inherent jurisdiction and quash the proceedings. 

So far the other submissions made by applicant counsel are concerned all the contentions raised by the counsel for the applicant relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon on behalf of applicant. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. The submissions made by the learned counsel for the applicant call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins.

The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.

Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. In the case of Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 the Apex Court had observed as follows:

"The courts have also pointed out in these cases that what the magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges is some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."

In the yet another case of Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 the Hon'ble Supreme Court had expressed the views in the following terms:

"Section 202 says that the magistrate may, if he things fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to find out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at the stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial."

In the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 the Hon'ble Apex Court had held as follows:

"The magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. It was observed by the Hon'ble Apex Court in Bhajan Lal's case as follows:-

"The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.

Again a threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and I do not find any justification to quash the complaint or the summoning order or the proceedings against the applicant arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

The prayer for quashing the same is refused as I do not see any abuse of the Court's process either.

The interim order, if any, is vacated.

However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within three months from today. The court below shall make an endeavour to decide the bail application on the same day, if possible, keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).

In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.

With the aforesaid observations this application is finally disposed off.

At this stage the counsel has further made submission that he may  be permitted to place his submission to seek discharge at appropriate stage of the trial

There are statuary provisions under which the applicant can always seek the aforesaid remedy and place his submission for that purpose in the court below. For this purpose no judicial order is required. If  on behalf of the applicant an application at proper stage, under appropriate provisions of law  is moved  and certain submissions are made the court  shall adjudicate upon the same in accordance with law.

Order Date :- 21.11.2014

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