Virat Pachauri And Another vs State Of U.P. And Another
2023 Latest Caselaw 22897 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:170299
 
A.F.R. 
 
Court No. - 93
 

 
Case :- APPLICATION U/S 482 No. - 20686 of 2023
 

 
Applicant :- Virat Pachauri And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Tanisha Jahangir Monir,Nipun Singh
 
Counsel for Opposite Party :- G.A.,Vibhu Rai
 

 
Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Sri Nipun Singh along with Sri Rishi Upadhya, Ajay Gautam and Abhijeet Mishra, learned counsel for the applicants, Sri Vibhu Rai, learned counsel for the opposite party no.2 and learned AGA for the State.

2. Present application under Section 482 Cr.P.C. has been filed for quashing the charge sheet dated 07.07.2022 as well as summoning order dated 12.07.2022 giving rise to Case No. 25474 of 2022 arising out of Case Crime No.0544 of 2021, under Sections 406, 420, 467, 468, 471, 379, 505 IPC, Police Station- Bannadevi, District Aligarh.

3. The contention of counsel for the applicants is that it is an undisputed fact that Munna Lal has been residing in the factory in question as a security guard. It was also submitted that the sole basis for submitting the charge sheet is the FSL report regarding the signature of Surendra Kumar (father of opposite party no.2) as the same was sent to FSL without permission of the court concerned but the same was obtained only with the permission of civil court where the suit for injunction filed by the applicant no.1 was pending, therefore, the said FSL report is inadmissible and cannot be relied upon in view of Section 311 A Cr.P.C. as well as Section 73 of the Indian Evidence Act.

4. In support his contention, learned counsel for the applicants has relied upon the judgements of the Supreme Court (i) State of Uttar Pradesh vs Ram Babu Misra; (1980) 2 Supreme Court Cases 343, (ii) Sukhvinder Singh and others vs State of Punjab; (1994) 5 Supreme Court Cases 152, (iii) judgement of Delhi High Court in Criminal Appeal No. 804 of 2001 in Sapan Haldar & Another vs State decided on 25.05.2012, (iv) another judgement of the Delhi High Court in Crl. M. A. No. 14076 of 2012 in Criminal Appeal No.582 of 2012 (Raj Kumar vs State) decided on 18.10.2012, (v) Criminal Appeal Nos.575 and 576 of 2011 Santosh vs. State (G.N.C.T.) of Delhi decided on 28.04.2023 reported in Manu/SC0499/2023). In all these judgements the Hon'ble Apex Court and Delhi High Court observed regarding the scope of Section 311-A and Section 73 of Indian Evidence Act.

5. It is further contended by learned counsel for the applicants that the dispute in question is a purely civil dispute and whether forgery committed in preparing the deed in question can be decided by the civil court after examining the evidence and criminal court has no jurisdiction to decide such type of civil dispute.

6. Per contra, learned counsel for the opposite party no.2 submitted that the present 482 Cr.P.C. application itself is an abuse of the process of the court because prior to filing the present application U/S 482 Cr.P.C., a discharge application was filed by the applicants before the court below on 17.04.2023 which was rejected on 18.05.2023 thereafter revision was filed on 12.05.2023 and the same was also rejected on 23.06.2023 but all these facts were not brought on record, therefore there is material concealment on the part of the applicants.

7. In support of his contention, learned counsel for the opposite party no.2 has relied on the judgements of the Hon'ble Apex Court in Civil Appeal No. 4270 of 2018 (K.D. Sharma vs Steel Authority of India Ltd. And Ors decided on 09.07.2008 as well as in Civil Appeal No.3827 of 2007 (Prestige Light Ltd. vs State Bank of India) decided on 20.08.2007. In both these judgements, the Apex Court observed that if there is suppression of material facts on the part of any parties, then those parties shall not be entitled to any relief from the High Court. It is further contended that co-accused Ashok Kumar had filed 482 Cr.P.C. Application No.17191 of 2023 challenging the same criminal proceeding which was dismissed by this Court vide order dated 09.05.2023. Therefore, once the quashing of criminal proceedings has been refused by the High Court at the instance of co-accused then another application under Section 482 Cr.P.C. application on behalf of another co-accused cannot be entertained.

8. In support of his contention, learned counsel for the opposite party no.2 has further relied upon the judgment of the Apex Court in the case of Sant Lal Gupta and others vs Modern Cooperative Group Housing Society Limited and others reported in (2010) 13 SCC 336 and in the case of S. Kasi vs State through Inspector of Police, Samaynallur Polie Station, Madurai District reported in (2021) 12 SCC 1. In both judgements, the Hon'ble Apex Court observed that the judgment of the Co-ordinate Bench should be respected, if the Co-ordinate Bench does not agree with the principle of another Bench then the matter may be referred to a larger Bench. It is also observed by the Apex Court that it is neither desirable nor permissible for the co-ordinate Bench to disapprove the earlier judgement and take a contrary view to it.

9. It is also contended by learned counsel for the opposite party no.2 that he has not filed any suit for cancellation of the deed in question till date because forgery in preparing the document is punishable under IPC. If from the report of FSL, it is proved that forgery has been committed then criminal proceeding is not barred. In support of his contention, he has relied upon the judgment of the Apex Court in Criminal Appeal No. 1793 of 2023 (Pratibha Manchanda and Ors. vs State of Haryana and Ors. decided on 07.07.2023. In the above judgement, the Hon'ble Apex Court observed that merely the pendency of a civil suit between the parties does not stop the issue of forgery and fabrication being considered in the course of criminal investigation.

10. It is lastly submitted by learned counsel for the opposite no.2 that I.O. in the present case after permission of the civil court, obtained a copy of the deed in question and sent for FSL to examine the geniuses of signature. It is also submitted that after the rejection of the discharge application of the applicants, the charge has already been framed before the court below and they are free to raise all the issues before the court below.

11. Learned AGA also contended that from perusal of the case diary prima facie case of forgery is made out and so far as the geniuses and legality of the report of FSL is concerned, the same can be challenged by the applicants at an appropriate stage.

12. Learned counsel for the applicant, in his reply to the contention of counsel for the opposite party no.2 submitted that judgement passed in Application U/S 482 Cr.P.C. filed by co-accused Ashok Kumar can prohibit him from filing the present application as no issue was decided in that application and order was passed on the consent of the parties for applying discharge application.

13. Considering the aforesaid submission of learned counsel for the parties and after perusal of record, three questions arise for consideration before this Court.

(i) Whether before sending a document to Forensic Science Laboratory to determine the genuineness of signature over this document with the undisputed document, Investigation Officer is required to seek permission of concerned Magistrate under Section 311-A Cr.P.C. as well as under Section 73 of Evidence Act.

(ii) Whether there is material concealment of fact by the applicant for non-disclosing the parallel proceeding of discharge application filed by the applicant.

(iii) Whether the impugned proceeding is civil in nature which can be decided by the Civil Court.

14. So far as the submission of counsel for the applicants, that FSL report was obtained by the I.O. without permission of the concerned criminal court in view of the bar of Section 311A Cr.P.C. as well as Section 73 of the Indian Evidence Act is concerned, the same is misconceived because, in the judgements cited above by the counsel for the applicants, the Hon'ble Apex Court clearly observed in those judgements that Section 73 of Indian Evidence Act is applicable during trial and not during investigation.

15. Paragraph 20 of the judgement of the Apex Court in the case of Sukhivinder Singh and others vs State of Punjab (supra) is quoted hereinbelow;

"20. The second paragraph of Section 73 (supra) enables the court to direct any person present before it to give his specimen writing "for the purpose of enabling the court to compare" such writings with writings alleged to have been written by such person. The obvious implication of the words " for the purpose of enabling the court to compare" is that there is some proceeding pending before the court in which or as a consequence of which it is necessary for the court to compare such writings. The direction is therefore required to be given for the purpose of "enabling the court to compare" and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceedings are pending in any court in which it might be necessary to compare the two writings, the person (accused) cannot be compelled to give his specimen writings. The language of Section 73 does not permit any court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent court. Section 73 of the Evidence Act in our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial court before which proceedings are pending requires the writing for the purpose of 'enabling it to compare' the same. A court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the court by which he may be subsequently tried to compare it with the dispute writings. Therefore, in our opinion, the court that can issue a direction to the person to give his specimen writing can either by the court holding the enquiry under the Code of Criminal Procedure or the court trying the accused person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A court that is not holding an enquiry under the Code of Criminal Procedure or conducting the trial is not permitted, in the plain language of Section 73 of the Evidence Act, to issue any direction of the nature contained in the second paragraph of Section 73 of the Evidence Act. The words " any person present in the court" in Section 73 a reference only to such persons who are parties to a case pending before the court and in a given case may even include the witnesses in the said cause but where there is no cause pending before the court for its determination, the question of obtaining for the purposes of comparison of handwriting of a person may not arise at all and therefore, the provisions of Section 73 of the Evidence Act would have no application."

16. Similarly, paragraph 51 of the judgment of the Apex Court in the case of Santosh Vs. State (G.N.G.T.) of Delhi (supra) is quoted hereinbelow;

"51 In the instant case, Neeraj's specimens of handwriting and signature were obtained by the investigating agency during investigation when there existed no specific provision in the Code regulating the procedure for obtaining such specimens and there existed no provision proscribing the investigating agency from obtaining specimens of handwriting/signature of an Accused or a suspect. As far as the provisions of Section 73 of the IEA, 1872 are concerned, they apply when a proceeding such as an inquiry or trial is pending in a Court. Since no proceedings were pending before any Court when the specimens in question were obtained, provisions of Section 73 of the IEA, 1872 could not have been invoked. In such a situation, as there existed no legal provision proscribing an investigating agency from obtaining specimens of handwriting/signature of a suspect or an Accused, in our view, the investigating agency had the power to collect such material including specimen handwriting/ signature as to assist the prosecution to introduce a relevant fact or corroborate and piece of evidence on a relevant fact/ fact in issue. For the reasons above, in our considered view, the expert report (i.e. FSL report) obtained during investigation by the investigation agency, predicated on specimens of handwriting/ signature of Neeraj obtained during investigation, could not have been discarded merely because it was obtained during investigation and without an order/permission of the Court as contemplated Under Section 73 of the IEA, 1872."

17. In the above judgement of the Hon'ble Supreme Court, it was clearly observed that Section 73 of Evidence Act is not applicable during investigation.

18. So far as Section 311-A Cr.P.C., the contention of learned counsel for the applicants regarding required permission of Magistrate under Section 311-A Cr.P.C. before sending document to FSL is concerned, it is clear from perusal of Section 311-A Cr.P.C. itself that it is an enabling provision. It empowers the Court to compel any person to give his specimen signature or handwriting during investigation or other proceeding before the Court. Section 311-A Cr.P.C. is reproduced hereinunder;

"311-A. Power of Magistrate to order person to give specimen signatures or handwriting.- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting:

Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."

19. Perusal of Section 311-A Cr.P.C. itself shows that it does not prescribe any prior permission on the part of Investigating Officer during investigation for sending any document to Forensic Science Laboratory to examine the genuineness of signature. Power of Investigating Officer during investigation is clearly prescribed under Section 157 Cr.P.C. Section 157 Cr.P.C. prescribes procedure for investigation and permits the Investigation Officer to take all measures for discovery. Section 157 Cr.P.C. is being quoted hereinbelow;

"157. Procedure for investigation.- If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.]

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."

20. From the above reasoning as well as from perusal of Section 311-A and 157 Cr.P.C., it is clear that during investigation if undisputed signature in any document is available then Investigating Officer can send the document containing disputed signature to Forensic Science Laboratory to determine the genuineness of signature over disputed document. Therefore, this Court holds that Investigating Officer is not required to seek prior permission of concerned Magistrate for sending any document to Forensic Science Laboratory to determine the genuineness of signature over the disputed document and question of seeking direction from the Magistrate under Section 311-A Cr.P.C. arises only when direction is necessary to a particular person to give specimen signature or handwriting for the purpose of examination.

21. Apart from this, it is also clear from the record that before sending the alleged forged deed for the FSL report, permission to obtain the original deed was received from the concerned civil court and after seeking permission from the civil court where the suit filed by the applicants was pending, same was sent to FSL and report of FSL prima faice could be the proof of forgery allegedly committed regarding the signature of the father of opposite party no.2, for filing charge sheet.

22. It appears from the submission of opposite party no.2 as well as on perusal of the record that before filing the present application, applicants have already filed a discharge application which was subsequently rejected on 18.05.2023 during the pendency of the present application and revision against the rejection of discharge application was also rejected on 23.06.2023 during the pendency of the present application but these facts were not brought on record by the applicants till objection raised by the counsel for the opposite party no.2 regarding concealment of facts. The above conduct of applicants shows that they are pursuing a parallel remedy in two different courts and this fact was also cancelled by this Court. Therefore, there is material concealment on the part of the applicants regarding the rejection of the discharge application. Even otherwise discharge application was rejected up to revisional court, then the applicants can challenge the order of the revisional court, if they are aggrieved against the rejection of the discharge application.

23. So far as submission of counsel for the applicants that the present dispute is absolutely civil in nature and the alleged deed in question can be quashed by the civil court after taking evidence and the criminal court has no jurisdiction to decide the genuineness or validity of the document, the same is also misconceived because alleged deed being unregistered document does not create any legal right over the property hence no decree of the civil court is required to cancel the same but this document was used in suit filed by the applicant no.1 to obtain injunction as well as to obtain licence to run Banquet Hall over the property of Company belongs to opposite party no.2 though same is allegedly forged and for that forgery criminal court is competent to try the case.

24. In the present case no suit is pending for cancellation of the alleged forged deed and even the FSL report obtained by the investigating officer clearly shows that the signature of the father of opposite party no.2 was forged. Therefore, at this stage, it cannot be said that no case is made out and the case is purely civil in nature. Even otherwise, once the discharge application of the applicants has been rejected and revision against that order was also rejected and now charges have been framed and those orders are not under-challenged in the present application and actually these orders were concealed from this Court, therefore this Court does not find any merit in the present case application.

25. Therefore, the present application is rejected without prejudice rights of the applicants to challenge the order rejecting the discharge application and order of the revisional court before the appropriate forum.

Order Date :- 23.8.2023

A.Kr.