Allahabad High Court
Girja Devi And 4 Others vs State Of U.P. And Another on 20 July, 2018
Bench: Umesh Chandra Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No. - 15
Case :- APPLICATION U/S 482 No. - 15462 of 2016
Applicant :- Girja Devi And 4 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Rajendra Singh
Counsel for Opposite Party :- G.A.,Kunjesh Kumar Dubey
Hon'ble Umesh Chandra Srivastava,J.
1. Heard Shri S.B. Singh, learned counsel for the applicants, learned A.G.A. for the State and Shri Kunjesh Kumar Dubey, learned counsel for opposite party no. 2.
2. Applicants have filed this application under Section 482 Cr.P.C. with prayer seeking quashing of proceedings of Complaint Case No. 1122 of 2016 (Pankaj Kumar Vs. Girja Devi and others), under Sections 419, 420, 467, 468 I.P.C., P.S. Chandauli, District Chandauli pending in the Court of Chief Judicial Magistrate, Chandauli.
3. Brief facts of the case being relevant for the disposal of application are as under:-
Rama Shanker, the maternal grand father of opposite party no. 2 Pankaj Kumar was the actual owner of the property in question. Opposite party no. 2 is the son of only daughter of Rama Shanker. After the death of his first wife Rama Shanker had kept applicant no. 1 Girja Devi with him as his wife. Girja Devi has no child of her own. Rama Shanker wanted to give his property to opposite party no. 2. He had executed a will also in this regard in favour of opposite party no. 2, in respect of which he himself used to tell him and also that said will was lying with applicant no. 1 Girja Devi. After the death of Rama Shanker, applicant no. 3 Seema Bharti and applicant no. 4 Laxmi Devi, who are the real sisters of opposite party no. 2 along with their husbands applicant no. 2 Prem Chand Prasad and applicant no. 5 Kapil Kumar got registered gift deed of the property of Rama Shanker executed in their favour on 16.12.2013. When after coming to know about the gift deed, opposite party no. 2 made enquiry about will allegedly executed by Rama Shanker, it came to his notice that all five applicants in-connivance with each other by making interpolation in the will have got the name of applicant no. 1 Girja Devi inserted as legatee in place of opposite party no. 2.
4. Learned counsel for the applicants submits that facts averred in complaint do not constitute any offence against the applicants. Applicant no. 1 is not the keep of Rama Shanker, she is his second wedded wife. He further submits that Rama Shanker never wanted to give his property to opposite party no. 2 by will. He has bequeathed his property to applicant no. 1 Girja Devi, by a registered will dated 10.08.2001 and as he want of that, after the death of Rama Shanker, applicant no. 1 Girja Devi become the absolute owner of the property. He further submits that applicant no. 1 Girja Devi had every right to transfer the property by gift to applicant nos. 3 and 4, therefore, if she has transferred the property to them no offence against the applicants is made out. He further submits that dispute involved between the applicants and opposite party no. 2 is purely of civil nature which opposite party no. 2 is unnecessarily dragging into criminal litigation.
5. Learned A.G.A. and learned counsel for opposite party no. 2, on the other hand, submitted that complaint discloses commission of offences against the applicants, they have summoned to face trial. They further submitted that merit of allegations cannot be tested in proceeding under Section 482 Cr.P.C., it can be seen during trial only by the trial Court. They further submitted that on all pleas or which the applicants have sought the quashing of proceedings of the complaint, they can seek discharge from the Court below and in view of efficacious alternate remedy being available to the applicants, present application is not maintainable as this Court can exercise the inherent jurisdiction vested in it in the rarest of the rare cases only either to prevent the abuse of process of Court or to secure the ends of justice when no other remedy is available.
6. Having heard the respective submission of learned counsel of both sides and considering the facts and circumstances of the case and material available on record, I think it proper to record that disputed questions of fact cannot be looked into in proceeding under Section 482 Cr.P.C., this can be seen during trial by the trial Court only. The inherent jurisdiction vested in court under Section 482 Cr.P.C. can be exercised in the rarest of the rare cases only to prevent the abuse of process of the Court when no any other remedy is available in the code. On all the pleas applicants have sought the question of proceedings they can seek discharge from the Court below and in view of an efficacious alternate remedy of discharge being available, present application is not maintainable.
7. It is not disputed that applicant no. 1 has executed gift deeds in respect of property of Rama Shanker in favour of applicant nos. 3 and 4, who are the real sisters of opposite party no. 2. Applicant no. 1 is claiming herself to be absolute owner of the property of Rama Shanker on account of will dated 10.08.2001 executed in her favour by Rama Shanker. It is also not disputed that besides being a legatee she is also an attesting witness of the will. The Division Bench of High Court Kerala in the case of Jose Vs. Ouseph, 2006 LawSuit (Ker) 555 has held that a legatee cannot be an attesting witnesses of the will and in case of legatee being an attesting witness the will would be void. This raises a serious doubt about genuinity of the will it and also puts a question of applicant no. 1 could have parted with property. These questions may be answered during trial only.
8. In view of above, I do not find any reason to quash the proceedings of complaint case in exercise of power vested in the Court under Section 482 Cr.P.C. Saying the proceedings to be abuse of process of the Court.
9. In the result, application is dismissed.
Order Date :- 20.07.2018
M/A.
