Smt. Maya Devi Swami And Another vs State Of U.P. And Another
2017 Latest Caselaw 3633 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 43
 

 
Case :- APPLICATION U/S 482 No. - 8862 of 2011
 

 
Applicant :- Smt. Maya Devi Swami And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Satish Kumar Tyagi
 
Counsel for Opposite Party :- Govt.Advocate, Dr. Hari Nath  Tripathi
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application u/s 482 of Cr.P.C. has been moved on behalf of applicants primarily seeking the quashing of order dated 16.10.2010 passed by learned Additional Chief Judicial Magistrate, Court No.4, Ghaziabad in Case No.808/09 (State vs. Niranjan Deo Swami and others), u/s 420, 467, 468, 471 I.P.C., P.S. -Kotwali, District-Ghaziabad whereby the applicant was directed to produce original Will Deed dated 31.12.1991 and also seeking the quashing of entire prosecution of the applicants.

List has been revised. Shri Satish Kumar Tyagi, learned counsel for the applicants along with Shri Vimlendu Tripathi, learned A.G.A. is present. Despite repeated calls none has appeared on behalf of opposite party no.2.

This application is of year 2011. In the wake of heavy pendency of cases in this Court where dockets are already bursting on their seams there is no justifiable reason to further procrastinate the matter. This Court, therefore, deems it fit to proceed in the matter and decide the same on merits without waiting any further for opposite party's counsel.

Brief facts of the case are that the opposite party no.2 instituted a civil suit for injunction bearing Original suit No.558 of 1998 (Gopal Dutt Sharma vs. Smt. Maya Devi and others), in which the applicant no.1 filed a written statement disclosing therein the existence of a will deed dated 31.12.1991 which was allegedly executed by Smt. Usha @ Pushpa Sharma in her favour in respect of property in dispute. The Interim injunction application in said civil suit was dismissed on 7.7.1998 and thereafter one F.I.R. dated 3.12.1998 was lodged by opposite party no.2 against applicants no.1 and 2 as well as husband and son-in-law of applicant no.1 which was registered as Case Crime No.691 of 1998 u/s 420, 467, 468, 471, 472 I.P.C., Police Station-Kotwali, District-Ghaziabad. After investigation, charge sheet dated 13.2.1999 was submitted by the Investigating Officer against the accused persons and later on charges were also framed in the court. The specific allegation in the said F.I.R. was to the effect that the alleged will deed dated 31.12.1991 was a forged one and the accused persons in conspiracy with each other have fabricated the alleged will by making forged signature of Smt. Pushpa Sharma @ Usha who is wife of opposite party no.2 and who had died on 19.11.1992 and after having attained knowledge of such forged will during the course of the proceeding of Original Suit No.558 of 1998 through the written statement of Smt. Maya Devi (applicant no.1), the opposite party no.2 got conducted the comparison of signatures of his wife through handwriting experts and found that the signatures of his wife in the said will deed were provenly forged and there was also interpolation in the date of alleged will deed. In the light of such allegations, the opposite party no.2 moved an application dated 11.7.2008 before the trial court seeking direction for the applicant no.1 to produce the original alleged will deed dated 31.12.1991. Thereupon objections were filed on behalf of applicants and the said application came to be disposed off vide order dated 14.8.2008 with an observation by the court that there is no need to issue any such direction at that stage and in case the court would deem the summoning of original will deed necessary for disposal of case, the same might or could be summoned at appropriate stage. When P.W.-2 namely Madan Mohan Kakkar, handwriting and fingerprint expert was produced by the prosecution before the trial court and his testimony was recorded during trial, the opposite party no.2 once again moved application dated 27.8.2009 seeking direction for the applicant no.1 to produce the alleged original will deed dated 31.12.1991 before the trial court stating therein that the alleged original will deed has not been produced by applicant no.1 in the proceeding of civil suit and the same is lying in the hands of applicant no.1. Against the said application, the applicant no.1 also filed her objection before the trial court and after hearing the parties, the trial court passed order dated 16.10.2010 whereby the application of opposite party no.2 was accepted and the defence side was directed to place on record the alleged original will deed dated 31.12.1991 by the next date fixed i.e. 30.10.2010. Against this order dated 16.10.2010 the instant criminal misc. application u/s 482 of Cr.P.C. has been preferred by the accused-applicants.

Heard Shri Satish Kumar Tyagi, learned counsel for the applicants and learned A.G.A. and perused the record.

Submission of counsel for the applicants is that the order passed by the court below is against the provisions of Article 20(3) of the Constitution of India as well as Section-101 of Indian Evidence Act and hence the same is not liable to be sustained in the eyes of law. Further submission is that the dispute among the parties is purely civil in nature and the legitimacy of will in question is yet to be decided by the civil court and hence there is no occasion for the court below to pass the impugned order and hence the applicants being accused facing criminal prosecution cannot be compelled to produce evidence against themselves and such impugned order is liable to be quashed in order to secure the ends of justice. In support of his submission, learned counsel for applicants has relied upon the case laws K.S. Joseph v. Philips Carbon Black Ltd. 2016 (95) SC 18, Rajendra Prasad v. The Narcotic Cell, Delhi 1999 (39) SC 333 and R.C. Gupta vs. State 1957 Law Suit (All) 148.

Learned A.G.A. Shri Vimlendu Tripathi has vehemently opposed the submissions advanced on behalf of applicants and has contended that in the light of position of law as stands on date, the order dated 16.10.2010 is in accordance with law and does not call for any interference and the criminal misc. application is misconceived and hence is liable to be dismissed. Submission is that the case law cited on behalf of applicants is not applicable to the facts of the case and is clearly distinghishable.

After hearing respective arguments advanced on behalf of rival side in the light of record of the case, the contentions made on behalf of applicants do not appear to have much substance in view of the settled position of law with regard to the scope of Article 20 (3) of the Constitution of India and Section 101 of Indian Evidence Act. The law relating to the ambit of protection granted against self incrimination is fairly well settled in view of the Constitution Bench judgement of Apex Court in State of Bombay v. Kathi Kalu Oghad reported in A.I.R. 1961 SC 1808 which has been followed in several subsequent pronouncements given by Hon'ble Apex Court. To cite a few of them reference may be given to the cases of Selvi and others vs. State of Karnataka reported in 2010 (7) SCC 263, Ritesh Sinha v. State of Uttar Pradesh reported in 2013 Cr.L.J. SC 1301 and State of U.P. vs. Sunil reported in 2017 AIR (SC) 2150. The law in this regard, as has been expatiated upon by the Apex Court in aforesaid case laws, may be summarised in nut shell by reproducing paragraphs 32, 33, 34 and 35 of Kathi Kalu Oghad case (supra) herein below :

"(11). The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said 'to be a witness', to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma's case [1954] S. C. R. 1077 that the prohibition in cl.(3) of Art.20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance. with the provisions of s.139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if has his given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observation of this Court in Sharma's case [1954] S. C. R. 1077 that s.139 of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely well-founded in law. It is well-established that cl.(3) of Art.20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.

(16) In view of these considerations, we have come to the following conclusions :-

(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not., by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.

(3) 'To be a witness' is not equivalent to furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression 'to be a witness.'

(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of Art. 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.

In the case of Selvi and others vs. State of Karnataka (supra), three-Judge Bench of Apex Court, while considering the testimonial character of scientific techniques like Narco analysis, Polygraph examination and the Brain-Electric activation profile, has unequivocally held as follows :

"157. We now return to the operative question of whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses. Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators.

(Emphasis added)

In the light of position of law, as noted above, it may be seen that the crux of entire prosecution version revolves around the genuineness of signature of executor of alleged original will deed dated 31.12.1997, which is undisputedly the document being relied upon by the applicants in the Original suit No.558 of 1998 and is in possession of applicant no.1 as per her claim and there appears no occasion for the applicants to apprehend self incrimination just on the basis of production of said alleged original will deed before the trial court, as the genuineness of said document and the commission of any offence or forgery and cheating is yet to be adjudicated upon by the trial court, and in that regard in order to arrive at a just decision and in order to obtain proper proof of relevant facts the court below has all necessary powers to pass appropriate orders to summon any evidence or witness so that the truth may be unfolded. It is also so very clear that the will deed in question is neither in the form of any statement of the applicants nor does it contain any version given by the applicants either orally or in writing by them. The will deed is by no means any oral statement or a statement in writing given by the accused. The alleged will deed is also not a document executed by the accused. Merely producing some document or giving some material which may be relevant at the trial to determine the guilt or innocence of the accused, will not make the accused-applicant a witness in the same sense or connotation which may be said to be equivalent to the expression 'to be a witness' as has been used in the relevant context of Constitution of India. If the court puts the accused a notice and directs him to produce some documents, such an act may amount to furnishing evidence in the larger sense. But the compliance of such direction shall not bring him within the expression ' to be a witness' as has been used in the relevant context of the Constitution. Therefore, the contention raised by the applicants' counsel in this regard appears very specious when it seeks to establish that the production of alleged will deed shall be tantamount to compelling the accused to be a witness against himself and this Court, therefore, declines to agree with such a proposition as has been canvassed by the counsel before the Court.

So far as the contention on behalf of applicants in respect of nature of dispute being civil is concerned, it is also fairly well settled that pendency of civil proceeding is no bar for criminal prosecution, especially in the matter like present one. There are matters which are essentially of civil nature and it is only with regard to such matters that this Court discourages criminal prosecution, if it is found that the criminal complexion to a controversy has been lent deliberately with purpose, only to exert coercive pressure upon the party. Those are the matters where often the essential ingredients of offences are found lacking by the court. Otherwise, where rank forgeries are alleged to have been committed and the ingredients of various offences appear to have been made out apparently on the basis of record, this Court does not scuttle the criminal prosecution simply on the ground of pendency of some civil litigation arising or emanating from that controversy. The fate of civil cases is decided often on the preponderance of probabilities in favour of either party while the conviction or acquittal of accused in a criminal case depends upon the proof beyond reasonable doubt. The nature and methodology of proof involved in the twin proceedings is qualitatively different and contains different hue and complexion. Civil proceedings as as well as the criminal proceedings are not always mutually exclusive in nature and can very well go together in appropriate cases. This proposition of law does not admit of any controversy and is too well settled to be elaborated upon any further.

So far as the case laws cited on behalf of applicants are concerned they are not only distinguishable on facts, but are also required to be seen in the perspective of Constitutional Bench pronouncement of Apex Court in Kathi Kalu Oghad case (supra) and as such the same are not found applicable in the present matter.

In view of aforesaid, the order dated 16.10.2010 does not call for any interference. The application lacks merit and therefore stands dismissed.

Considering the fact that the trial court's proceedings were stayed vide interim order dated 27.4.2011, it is desirable that the trial court shall make all necessary endeavours to decide the proceedings of Case No.808 of 2009 (State vs. Niranjan Dev Swami and others) u/s 420, 467, 468 I.P.C., P.S.-Kotwali, District-Ghazibaad as early as possible without granting any unnecessary adjournment to either party.

Before parting with this order it would be apt to observe that the ability with which learned A.G.A. Shri Vimlendu Tripathi rendered his assistance to the court on facts and law both, deserves Court's appreciation and recognition as well. Not many could have addressed the Court in this matter with so much clarity on facts and with so much of masterly command over law.

Office is directed to communicate this order to the concerned trial court forthwith by fastest mode available.

Order Date :- 25.8.2017

M. Kumar