Sajjan Singh And Others vs State Of U.P. And Another
2019 Latest Caselaw 2789 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 

 
In Chamber
 

 
Case :- APPLICATION U/S 482 No. - 1491 of 2003
 
Applicant :- Sajjan Singh And Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Umesh Chandra Mishra,Brij Raj Singh,D.K.Singh,D.K.Singh Somvanshi
 
Counsel for Opposite Party :- Govt.Advocate,Devesh Vikram,P.K. Dixit,Ram Ashish Pandey
 

 
Hon'ble Suresh Kumar Gupta,J.

1. The application under Section 482 Cr.P.C. has been filed by applicants with request to quash the charge-sheet no. 117 of 2001, dated 09.08.2001, under Sections 420, 467, 468, 471 I.P.C. and under Section 3(1)(10) of S.C. & S.T. Act submitting by Investigation Officer after completion of the investigation of Crime No. 25 of 2001, Police Station Bharthana against applicants and later on learned Additional Chief Judicial Magistrate, IV-A, Etawah vide has taken cognizance vide his order dated 18.10.2001.

2. Brief facts of this case are as follows-:

That on 22.01.2001, opposite party no. 2 has moved an application before S.S.P., Etawah, S.S.P. has directed to S.H.O., Bharthana to register and investigate the matter. S.H.O., Bharthana registered the case against the applicants on 06.02.2001. That according to F.I.R. allegation, the father of opposite party no. 2, Sita Ram has died on 20.11.1985 and after his death, applicants have prepared a forge will on 16.09.1987 and trying to grab his agricultural lands. That applicants have given threat of life to the complainant as well as his family members.

3. Learned counsel for the applicants contended that late Sri Sita Ram during his life time always neglected by his alleged adopted son namely Shadi Lal-opposite party no. 2, who is doing labourer work and living in Punjab but applicant no. 1 always lives with Sita Ram as well as looked after Sita Ram. Sita Ram was died on 20.12.1987 due to long illness and regarding this Dr. K.C. Jain, District Hospital, Etawah has issued a death certificate as Annexure-1. Sita Ram during his life, executed a will in favour of applicant-petitioner no.-1, which was duly signed by him and applicant-petitioner no. 3, Babu Ram and Madhav Singh have signed the aforesaid will as witnesses. Applicant nos. 4 & 5 was attested witnesses of the alleged will dated 16.09.1987. That after death of Sita Ram, applicant no. 1 got his property mutated in his name. That by order of Naib Tehsildar, name of deceased Sita Ram was deleted and on the basis of will dated 16.09.1987, disputed land was mutated in the name of applicant no. 1. That against the mutation order dated 21.05.1999, opposite party no. 2 has filed a restoration application, which was duly allowed and case was restored to its original number. Learned counsel for the applicants further stated that this F.I.R. is barred by Section 195 (1)(b)(2) of Cr.P.C. so F.I.R. shall be lodged by concerned court of Naib Tehsildar. But after restoration the concerned Naib Tehsildar Court neither filed any complaint nor lodged any F.I.R. Complainant has no locus standi to lodge F.I.R. or any complaint against the applicants. It is further contended that applicant no. 1 has already filed a Civil Suit No. 14 of 2001, Sajjan Singh Vs. Kishan Lal and Another, for permanent injunction restraining the respondent for interfering into his peaceful possession. He further submitted that appellant no. 1 has also moved an application for temporary injunction, which was duly allowed by Civil Judge, Senior Division vide his order dated 09.01.2001. It is also argued that applicant nos. 2 & 3 are sons of applicant no. 1. He further stated that neither they are the witnesses of the aforesaid will nor any allegation that applicant nos. 2 & 3 have committed forgery in shifting or preparing forge will. He further submitted that on the basis of F.I.R. no offence under Section 3(i)(x) S.C. & S.T. Act as well as Section 504 & 506 I.P.C are made out against the applicants. He further submitted that until and unless civil as well as revenue court not reached at the conclusion that alleged will is forged till then no allegation of F.I.R. is made out against the applicants. It is also contended that when the applicants have come to know about the registration of F.I.R. then they approached before this court and this court has stayed arrest of the applicants-accused till further order and granted time to Government counsel to file counter affidavit. He further submitted that after investigation, charge sheet was submitted on 09.08.2001 against the applicants and on 18.10.2001, learned A.C.J.M. Court No. 3rd has taken cognizance so this application has been filed by the applicants to quash the charge-sheet as well as proceedings of this case.

4. Learned counsel for opposite parties has filed their counter affidavit on 23.08.2003. Opposite party's counsel has clearly stated that Sita Ram has never executed any will of deed in favour of applicant no. 1 during his life time. Infact Sita Ram has died much before execution of alleged forge will. He further submitted that Sita Ram was died on 20.11.1985 and regarding this, Parivar Register and death certificate of Sita Ram was issued by the Village Pradhan, is filed by opposite parties counsel. It is also contended that this case is not barred by Section 195 (1)(b)(2) of Cr.P.C. and applicants have committed forgery by preparing forge will outside the Naib Tehsildar Court and placed before the Court concerned during mutation proceedings. It is further submitted that Civil Suit No. 14 of 2001 has already been dismissed in default and consigned to record room on 19.07.2003. It is also submitted that Naib Tehsildar after considering the documentary as well as oral evidence, came to the conclusion that alleged will dated 16.09.1987 is not genuine and he has recorded the name of opposite party no. 2 as a legal heirs of Late Sita Ram in the revision recorded by passing order dated 08.01.2002. It is further contended that although the arrest of the applicants was stayed due to Crl. Misc. Petition No. 1581 of 2001, Sajjan Singh and Others Versus State of U.P. but after filing of charge-sheet on 09.08.2001, the aforesaid writ petition as well as interim order has now become infructuous.

5. After exchange of counter affidavit, rejoinder affidavit filed by applicants on 13.03.2019. Learned counsel for the applicants further contended that against the order dated 08.01.2002, Sajjan Singh has filed a revision under Section 279 of U.P. Land Act before the Court of Commissioner. which was allowed vide order dated 18.07.2013. Aggrieved with this order, the opposite party- Kishan Lal and Others have filed a Civil Misc. Writ Petition No. 63160 of 2013 before the High Court, which was allowed by order dated 03.10.2016. Order dated 18.07.2013 passed by Commissioner and Hon'ble court order dated 03.10.2016 are filed by applicants as Annexure No. KA-2. In rejoinder affidavit, learned counsel for the applicants contended that vague Family Register dated 13.12.2012 was filed by opposite party. For examination of the genuineness of the Family Register, applicants have moved a complaint before the BDO, Varadana but the record of the said information was not provided by concerned Panchayat Department till date. Presently the proceedings of mutation case as well as original suit no. 14 of 2001 is still pending before the court of competent jurisdiction and is also contended that opposite party no. 2 or other alleged legal heirs of Late Sita Ram has never challenged the validity of will deed dated 16.09.1987 executed in favour of applicant no. 1, hence the same having binding effect so the proceedings of this case are not sustainable in the eyes of law. Learned counsel for the applicants also relied upon Apex Court judgment Savitri Pandey and Another Vs. State of Uttar Pradesh and Others 2 (2015) 13 Supreme Court Cases 95, (2) Kishan Singh (Dead) through LRS. Vs. Gurpal Singh and Others (2010) 8 Supreme Court Cases 775 and (3) Paramjeet Batra Vs. State of Uttarakhand and Others (2013) 11 Supreme Court Cases 673. On relying upon these judgments, learned counsel for the applicants contended that if the case is related purely to the civil nature, no criminal proceedings being commenced against the applicants and the same may be quashed. It is further contended that applicant no. 4, Babu Singh and applicant no. 5, Param Shankar Srivastava, have died so in these circumstances, case is abated against applicant nos. 4 & 5.

6. I have heard learned counsel for the applicants, learned counsel for opposite party no. 2 and learned A.G.A. Perused the material available on record.

7. This fact is not disputed by applicants that opposite party no. 2 is the adopted son of late Sita Ram and applicant claiming his right on the basis of impugned will. Main contention of the learned counsel for the applicants is that Section 195 (1)(b)(2) of Cr.P.C. is attracted and F.I.R. can be lodged only by those courts of Naib Tehsildar where alleged forge deed has been filed. But this contention of the applicants has no substance because bar of under Section 195 (1)(b)(2) of Cr.P.C. never attracted when the offence initiated in the said proceeding even committed with respect to the document after which has been produced or given evidence in a proceedings in any court i.e. during the time when the document was in custodial legis. In this case alleged fabricated will was prepared much before the filing of civil suit for permanent injunction and much before filing the mutation proceeding on the basis of alleged forged will.

8. One of the main contention of the applicants is that civil suit regarding permanent injunction is pending before the Commissioner Court, so presently the validity of the said will is still challenged. Fate of the will is not still yet to be decided. It is not disputed by learned counsel for the parties that this very property which is the subject matter of this criminal proceeding, is also the subject matter of the civil suit, pending in the civil court as well as revenue court. The question as to the possession over the property or entitlement to the possession would be determined by the civil court. Standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence whereas in criminal cases the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that finding recorded in one proceeding may be treated as final or binding in the other. As both the cases have to be decided on the basis of evidence adduced therein. Learned counsel for the applicants contention, civil cases is pending, so criminal proceeding against applicants could not be allowed, have no substance. Hon'ble Supreme Court in Criminal Appeal No. 255 of 2019 Sau. Kamal Shivaji Pokarnekar Versus The State of Maharashtra & Ors. held that:-

"It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.

A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceedings shall not be interdicted."

9. Although learned counsel for the applicant has relied on the abovesaid apex court judgment Savitri Pandey and Another (Supra), Kishan Singh (dead) Through LRS (Supra) and Parmjeet Batra (Supra) but finding of the apex court judgment is not applicable in this case because fact of above cited case law is totally different with the fact of this case of applicants. So those cases cited by applicants does not help to the applicants.

10. From the perusal of the material available on record and looking into the facts and circumstances of the case, at this stage, it cannot be said that no cognizable offence is made out against the applicants.

11. On the abovesaid observations, I am of the view that trial court has rightly passed the cognizance order dated 18.10.2001 on the basis of report filed by investigation officer under Section 173(2) Cr.P.C. i.e. charge-sheet dated 09.08.2001. After collection of evidence, charge-sheet as well as cognizance order against the applicants was passed. On aforesaid discussion, quashment of the charge-sheet dated 09.08.2001 as well as cognizance order dated 18.10.2001, are hereby refused.

12. Hence, application under Section 482 Cr.P.C. is accordingly, dismissed.

13. However, if the applicants appear/surrender before the courts below within thirty days from today and applies for bail, it is expected that the same will be considered and disposed off expeditiously.

14. The office is directed to transmit back the record of the lower court with a copy of judgment and order of this Court for immediate compliance.

Order Date:-11.04.2019/ Vibha Singh