Smt. Nawab Begum And 2 Others vs State Of U.P. & Another
2016 Latest Caselaw 5570 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 54
 
A.F.R.
 
Case :- APPLICATION U/S 482 No. - 12028 of 2015
 
Applicant :- Smt. Nawab Begum and 2 Others
 
Opposite Party :- State Of U.P. & another
 
Counsel for Applicant :- Rajjan Singh, M.J. Akhtar, Md. Imran Khan, V.M. Zaidi
 
Counsel for Opposite Party :- Govt. Advocate, Manish Tiwari
 
			Connected with
 
Case :- APPLICATION U/S 482 No. - 33103 of 2014
 
Applicant :- Mohd. Shahid and another
 
Opposite Party :- State Of U.P. and another
 
Counsel for Applicant :- Rajjan Singh, M.J. Akhtar, V.M. Zaidi
 
Counsel for Opposite Party :- Govt. Advocate, Manish Tiwary
 
Hon'ble Mrs. Vijay Lakshmi,J.

Both these applications under section 482 Cr.P.C., were connected vide order dated 23.8.2016 of this Court and are hereby being decided by this common order.

The applicants by means of these applications, have invoked the inherent jurisdiction of this Court with prayer to quash the entire proceedings of Case Crime No. 1042 of 2012, under Sections 420, 467, 468, 471, 120-B, 506 and Section 34 I.P.C., Police Station Kotwali, district Muzaffar Nagar and to stay the effect and operation of the impugned orders dated 1.4.2014 and 12.12.2014 passed by Chief Judicial Magistrate, Muzaffar Nagar taking cognizance on the charge-sheets filed under aforesaid sections in this matter.

Heard Sri V.M. Zaidi, learned counsel for the applicants, Sri Manish Tiwary, learned counsel for opposite party no. 2 as well as learned A.G.A. representing the State. Perused the record.

Some background facts, in brief, are that an F.I.R. was lodged by O.P. No. 2/complainant Syed Hussain at Police Station Kotwali, district Muzaffar Nagar on 21.9.2012 stating therein that he resides at Aligarh and his brother resides at Noida. Their mother Late Manzoor Fatma was a resident of village Bilaspur, Police Station Nai Mandi, district Muzaffar Nagar. The accused applicants, fabricated a forged Will of Manzoor Fatima with intention to grab her property showing therein that Manzoor Fatima has bequeathed all her property to accused applicants Mohd. Shahid and Mohd. Suhail i.e. the two sons of accused applicant Mohd Arif. Then they prepared a fake death certificate before her death showing that Late Manzoor Fatma had died on 25.3.2004 whereas, she died on 15.1.2006 in Aligarh Medical Hospital. It was further alleged in the F.I.R. that Mohd. Shahid and Mohd. Suhail in connivance with other accused persons, got their names mutated in the revenue records on the basis of the aforesaid forged Will and death certificate. When first informant came to know about all these facts, he filed his objection before the revenue court and lodged the F.I.R. against the applicants on 21.9.2012.

However, the I.O. after concluding the investigation submitted Final Report in the matter on 8.11.2013. Against the Final Report, opposite party no. 2 filed protest petition on 1.1.2013, which was allowed by learned C.J.M., Muzaffar Nagar vide order dated 20.5.2013 and the I.O. was directed to conduct further investigation in the case. After further investigation, the I.O. submitted charge-sheet in the matter on 13.3.2014 against the applicants Mohd. Suhail and Mohd. Shahid on which cognizance was taken by learned C.J.M. vide impugned order dated 1.4.2014. Later, chargesheet against applicants Mohd. Arif, Smt. Nawab Begum and Zahoor Mehdi on 2.12.2014, on which the learned Magistrate took cognizance by the impugned order dated 12.12.2014.

Both these orders of taking cognizance against the applicants have been challenged before this Court by learned counsel for the applicants, contending that Manzoor Fatima, who was the owner of the disputed property, was the real sister of the father of applicant Mohd. Arif. It is contended that she executed a Will dated 3.2.1998 in favour of minor sons of Mohd Arif. At that time no body in the family raised objection against the said Will. After her death the applicants Mohd. Shahid and Mohd. Suhail applied for mutation of their names over the property in dispute and as there was no objection from any one at that time, the mutation was done on 19.6.2006 but even at the time of mutation there was no objection by the opposite parties. It was only after a long gap of 14 years from the alleged fabrication of Will, the O.P. No. 2 lodged the F.I.R. against the applicants on 21.9.2012. The police, without taking into consideration this inordinate delay and without a proper investigation submitted charge-sheets against the applicants including even the two minors namely Mohd. Shahid and Mohd. Suhail. The learned Magistrate also, without application of mind to these facts, mechanically took cognizance on the said charge-sheets.

It is further contended that applicant no. 3 filed a suit for partition of the disputed property on 21.12.2012 in which a family settlement took place in the year 2014 and as per terms of settlement, Mohd. Shahid and Mohd. Suhail, i.e. the two sons Mohd. Arif, gave up their claims in favour of the complainant/opposite party no. 2. Accordingly, the names of Mohd. Shahid and Mohd. Suhail were struck down from the revenue records and the names of heirs of Late Manzoor Fatma were recorded in their place, hence the dispute got finally settled between the parties.

The grievance of the applicants is that despite the family settlement and even after the names of Mohd. Shahid and Mohd. Suhail being struck down from the revenue records, the opposite party no. 2 moved the protest petition against the applicants.

Learned counsel has next contended that there is inordinate delay of about more than 14 years in lodging the F.I.R., which makes the prosecution case wholly doubtful and clearly shows that it was lodged with malafide intention, just in order to harass the applicants. It is further contended that no offence under Section 420 or 120-B I.P.C. is made out against the applicants due to lack of "mensrea" on their part as there was no intention either to cheat or to deprive the first informant or any other persons from his property. Learned counsel has submitted that neither the alleged forged Will, nor the alleged forged death certificate, was ever used by the applicants. Hence there was no wrongful gain to the applicants and no wrongful loss to the opposite party no. 2. Moreover, the alleged Will being unregistered, was like a waste paper and the applicants were not benefited in any manner due to this Will. Learned counsel has lastly argued that as at the time of execution of Will, both applicants Mohd. Shahid and Mohd. Suhail were minors, hence no offence is made out against them. In support of his contention learned counsel for the applicants has placed reliance on the judgments passed by Hon'ble Supreme Court in the cases of V.P. Srivastava Vs. Indian Explosives Ltd, & others; 2010 (SC) SCC 361, Md. Ibrahim and others Vs. State of Bihar and another; 2010 (sup) AIR (SC) 347 and Savitri Pandey and another Vs. State of U.P. and others; 2015 (90) ACC 721.

Per contra, learned counsel for opposite party no. 2 has contended that the crime was completed when the applicants, with dishonest intention, had prepared the forged Will and had fabricated the death certificate showing the date of death of mother of opposite party no. 2 as 25.3.2004, where as, she actually died on 15.1.2006 as per medical college records, where she breathed her last. It is further contended that no compromise or settlement, ever took place between the applicants and opposite party no. 2 and if merely due to fear of their conviction, the applicants gave up their claims in favour of the complainant, it cannot be said that it was due to some settlement and no offence was committed by them. Learned counsel for the opposite party no. 2 has submitted that there is sufficient prima facie evidence available in support of the fact that the applicants manufactured the forged death certificate and Will with fraudulent and dishonest intention, which is clearly evident from the fact that the applicants got mutated their names in the revenue records on the basis of those false and fake documents and when their guilty conduct was detected, they gave up their claims even after the mutation of their names in the revenue records.

With regard to delay in lodging the F.I.R., learned counsel for opposite party no. 2 has submitted that the delay has been properly explained by the complainant in the F.I.R. itself. The applicants and his brother, who are the two sons of Late Manzoor Fatima were living outside in connection with their job. Hence they could not get any knowledge about the act of accused applicants and as soon as they got the knowledge about the preparation of forged will and forged death certificate, and about the mutation of the names of sons of Mohd. Arif in revenue records, they lodged the F.I.R. Moreso, the charge-sheet and the entire proceedings of criminal case cannot be quashed only on the ground of delay in lodging the F.I.R. specially, when the delay has been properly explained. It is further contended that the applicants have used the forged death certificate in the mutation proceedings and on the basis of those false papers, their names were entered into the revenue record. Hence it cannot be said that there was no wrongful gain to the applicants. It is further submitted that whatever has been argued by learned counsel for the applicants is the proposed disputed defence which, as per settled legal position, cannot be looked into at the threshold of a case i.e. at the very initial stage when only charge-sheet has been filed. It is lastly submitted that no benefit can be given to the applicants on the basis of the case laws cited by learned counsel for the applicants because the facts before the Hon'ble Supreme Court in all these cases are entirely different from the facts of instant case.

Considered the rival submissions advanced by the parties.

From the perusal of the material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C.. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and recently in A.R.C.J. Vs. Nimra Carglass Technics (P) Ltd. (2016) 1 SCC 348. The submissions made by the learned counsel for the applicants 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. All the submissions made at bar by Sri V.M. Zaidi, learned counsel for the applicants, are the disputed defence of the accused, which cannot be considered at this stage. Moreover, the applicants have got a right of discharge through a proper application for the said purpose and they are free to take all the submissions taken here in the said discharge application before the Trial Court.

I have carefully gone through all the judgments cited by learned counsel for the applicants and I am of the considered view that none of these judgments are applicable to the instant case.

Much stress has been laid by learned counsel for the applicants on the delay in lodging the F.I.R. in the instant case, relying on the law laid down in Savitri Pandey's case (supra) in which the Hon'ble Apex Court had quashed the F.I.R.

The applicants cannot be given any benefit on the basis of aforesaid judgment as the facts of the instant case are entirely different. In the case of Savitri Pandey (supra), F.I.R. was lodged after a lapse of 19 years, but it was lodged against as many as fifteen persons, without even assigning their separate roles. To the contrary, in the instant case, specific roles have been assigned to the applicants and delay has also been explained.

In wake of above discussion, both the applications appear to be devoid of merit and are liable to be dismissed. The prayer for quashing the entire proceedings and impugned orders passed in the aforesaid cases is liable to be refused.

Accordingly both these applications are dismissed. Interim order, if any stands vacated.

However, it is open for the applicants to move the discharge applications before the court concerned at the appropriate stage and to put forth all the aforesaid submissions before the trial court and if any such application is moved by them before the court concerned, it shall be disposed of by a reasoned order.

Dated : 31.8.2016

S.B.