Rajasthan High Court

Satish Badaya S/O Late Shri ... vs State Of Rajasthan on 24 February, 2021

Bench: Mahendar Kumar Goyal

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

        S.B. Criminal Miscellaneous (Petition) No. 6136/2019

Satish Badaya S/o Late Shri Radheyshyam Badaya, R/o Plot No.9,
Vidhut Nagar A, Ajmer Road, Chitrakoot, Jaipur.

                                                          ----Accused/Petitioner

                                      Versus

1.      State Of Rajasthan, Through PP
                                                            ----Respondent No.1

2. Rakesh Badaya S/o Late Shri Radheyshyam Badaya, R/o A-

131, Vidhut Nagar A, Ajmer Road, Chitrakoot, Jaipur West.

----Respondent No.2

For Petitioner(s) : Mr. Deepak Chauhan with Mr. Vishal Pareek Mr. Abhinav Bakolia Mr. Shubham Khunteta For Respondent(s) : Mr. F.R. Meena, PP Mr. Gaurav Gupta

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

24/02/2021

This criminal miscellaneous petition under Section 482 CrPC

has been filed for quashing the FIR No.0289/2019 dated 29.05.2019

registered at Police Station Chitrakoot, District Jaipur (West) for the

offences under Sections 420, 406, 467, 468, 471 & 120-B of I.P.C.

Learned counsel for the petitioner submitted that the

complainant/respondent No.2 has filed a suit for partition and

permanent injunction against him in the Court of learned District

Judge, Jaipur Metropolitan, Jaipur wherein, in his written statement

filed on 20.08.2018, he has specifically averred that Late Shri

Radheshyam Badya, their father, has executed a Will dated

14.04.2016 of the house in question in his favour. He submitted that

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thereafter, the complainant filed an application under Order 6 Rule

17 CPC seeking amendment in the plaint wherein he has specifically

averred that five documents including the Will in question, were

forged by the petitioner (defendant No.2), his wife and their late

father. He, therefore, submitted that thereby the complainant has

admitted that the Will was executed by their late father. Learned

counsel submitted that thereafter with much delay, the FIR came to

be lodged on 29.05.2019 that too on the basis of opinion of private

handwriting expert which could not be the basis of the allegations

contained therein. Relying on the judgments of Hon'ble Apex Court of

India in cases of Rajeshbhai Muljibhai Patel & Ors. Vs. State of

Gujarat & Anr.: (2020) 3 Supreme Court Cases 794, Mukul

Agarwal & Ors. Vs. State of Uttar Pradesh & Anr.: (2020) 3

Supreme Court Cases 402, Mohini Hemant Jadia Vs. Hemant

Ghanshyamlal Jadia & Ors.: (2002) 9 Supreme Court Cases

767 and Sardool Singh & Anr. Vs. Smt. Nasib Kaur: 1987

(Supp) Supreme Court Cases 146, learned counsel submitted that

since the civil Court is already seized of the matter wherein the

question of genuineness of the Will is to be examined, the FIR in

question is liable to be quashed and set aside.

Per contra, the learned Public Prosecutor assisted by learned

counsel for the complainant submitted that the FIR discloses

commission of cognizable offence and hence, the same cannot be

quashed by this Court under Section 482 CrPC. They submitted that

the allegations therein are based not only on the opinion of the

private handwriting expert; but, travel beyond that also. With regard

to the averments made in the application filed by him under Order 6

Rule 17 CPC, learned counsel for the complainant contended that

there are specific allegations therein as to preparation of forged and

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fabricated Will by the petitioner in collusion with his wife. Learned

counsel for the complainant relied upon the judgments of Hon'ble

Apex Court of India in cases of Iqbal Singh Marwah & Anr. Vs.

Meenakshi Marwah & Anr.: (2005) 4 Supreme Court Cases

370, Syed Askari Hadi Ali Augustine Imam & Anr. Vs. State

(Delhi Administration) & Anr.: (2009) 5 Supreme Court Cases

528, Skoda Auto Volkswagen India Private Limited Vs. The

State of Uttar Pradesh & Ors.: 2021 (1) RCR (Criminal) 171

and K. Jagdish Vs. Udaya Kumar G.S. & Anr. AIR 2020 SC 936

in support of his submissions that civil as well as criminal

proceedings can go on simultaneously and in case of any conflict, the

criminal proceedings will have primacy over the civil proceedings.

` Heard the learned counsels for the parties and perused the

record.

A bare reading of the FIR wherein there are allegations against

the petitioner of forging and fabricating a Will purportedly executed

by their father, discloses commission of cognizable offence. It also

reveals that besides the allegation that the private handwriting

expert has opined signature of their father on the Will in question to

be forged, there is allegation of interpolation in the documents as

well.

The scope of quashing the criminal proceeding at the

threshold, has succinctly been laid down in the following cases:

The Hon'ble Apex Court of India has, in case of Dr. Monica

Kumar & Anr. Vs. State of Uttar Pradesh & Ors., AIR 2008

SCC 2781, held as under:-

"30.We may reiterate and emphasise that the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be

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careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhury (1992) 4 SCC 305; Raghubir Saran Dr. v. State of Bihar 1964 (2) SCR 336; Kurukshetra University v. State of Haryana (1977) 4 SCC 451; and Zhandu Pharmaceuticals Works Limited and Others v. Mohd. Sharaful Haque and Another 2005 (1) SCC 122]."

The Hon'ble Apex Court of India in case of State of Andhra

Pradesh Vs. Bajjoori Kanthaiah and Ors., AIR 2009 SCC

671, held as under:-

"8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set

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out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. (See : Mrs. Dhanalakshmi v. R. Prasanna Kumar and others (AIR 1990 SC 494), State of Bihar and another v. P. P. Sharma, I.A.S. and another (1992 Suppl (1) SCC 222), Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another (1995 (6) SCC 194), State of Kerala and others v. O.C. Kuttan and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996 (7) SCC

705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) and another (1999 (8) SCC 728), Rajesh Bajaj v. State NCT of Delhi and others AIR 1999 SC 1216), State of Karnataka v. M. Devendrappa and another (2002 (3) SCC 89)."

Since, the FIR discloses commission of cognizable offence, the

same cannot be quashed by this Court under Section 482 CrPC.

No doubt, in cases of Rajeshbhai Muljibhai Patel (supra),

Mukul Agarwal (supra), Mohini Hemant Jadia (supra) & Sardool

Singh (supra), the Hon'ble Apex Court of India has held that where

genuineness of any document is subject mater of scrutiny by the civil

Court, the criminal complaint/FIR based on such document should

not be permitted to continue; however, the same cannot be taken as

absolute proposition of law. It is a well settled principle of law that

judgment of a Court has to be read in the light of factual matrix

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involved therein and cannot be treated as Euclid's formula. In case of

Iqbal Singh Marwah (supra), wherein, a criminal complaint was

filed alleging the Will produced in the civil proceeding, to be forged,

the Hon'ble Apex Court was pleased to held as under:

"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case 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 the findings 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 the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code, the following observations made by a Constitution Bench in M.S. Sheriff vs. State of Madras AIR 1954 SC 397 give a complete answer to the problem posed: (AIR p.399, paras 15-16) "(15) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

(16) Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that

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the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.

34. In the present case, the Will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)

(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference."

A three-Judges Bench of the Hon'ble Apex Court in case of

Skoda Auto Volksawagen India Private Limited (supra),

recording the contentions of the petitioner seeking quashing of the

FIR, in para 16, proceeded to hold as under:-

"16. The main contentions of the petitioner are:-

(i) That the Police cannot investigate an issue, the substratum of which is sub judice before this Court in the civil appeals arising out of the order of the NGT; and

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(ii) That the High Court failed to take note of the long delay on the part of the 3 rd Respondent in lodging the complaint and also the fact that the VAHAN Portal of the Government shows the purchase of only 3 vehicles as against the claim of the 3 rd Respondent to have purchased 7 vehicles.

19. The mere delay on the part of the 3 rd Respondent-complainant in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents. Therefore, the second ground on which the petitioner seeks to quash the FIR cannot be countenanced.

40. Therefore, we are unable to agree with the contention of the learned Senior Counsel for the petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact, the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code. We do not think that the petitioner can ask for anything more.

41. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed: AIR 1945 PC 18, the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal: (1992) Supp. (1) SCC 335, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat: (2001) 7 SCC 659, this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of

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activities and one ought not to tread over the other sphere."

The Supreme Court has, in case of M. Krishnan Vs. Vijay

Singh and Another: (2001) 8 Supreme Court Cases 645, held

as under:-

"5. Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe:

"In my view, unless and until the civil court decides the question whether the document are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal

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proceedings and taking cognizance and issue of process are clearly erroneous."

In Kamladevi Agarwal Vs. State Of West Bengal and

Others: (2002) 1 Supreme Court Cases 555, the Hon'ble Apex

Court has held as under:-

"7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction. In R.P. Kapur v. State of Punjab this Court held: (AIR p.869, para 6) "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category.

Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and

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accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter of merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of the cases in which the inherent jurisdiction of High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an inquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any part to invoke the High Court's inherent jurisdiction and contended that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions of the point [Vide: Shripad G. Chandavarkar In re AIR 1928 Bom 184, Jagar Chandra Mozumdar V. Queen Empress. ILR (1899) 26 Cal 786, Shanker Singh (Dr.) v. State of Punjab 56 Punj LR 54: AIR 1954 Punj 193, Nripendra Bhusan Ray v. Gobinda Bandhu Majumdar: AIR 1924 Cal 1018 and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar ILR (1924) 47 Mad 722]

8. This judgment was reiterated and following in Hazari Lal Gupta v. Rameshwar Prasad: AIR 1972 SC 484, State of Karnataka v. L.

Muniswamy: AIR 1977 SC 1489, State of Haryana v. Bhajan Lal: AIR 1992 SC 604 and various other pronouncements.

9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to

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judgments in State of Haryana v. Bhajan Lal: AIR 1992 SC 604 and Rajesh Bajaj v. State NCT of Delhi: (1999) 3 SCC 259 this Court in Trisuns Chemical Industry v. Rajesh Agarwal: (1999) 8 SCC 686 held: (SCC p.690, paras 7-8) "7.Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions [vide State of Haryana v. Bhajan Lal: AIR 1992 SC 604 and Rajesh Bajaj v. State NCT of Delhi: (1999) 3 SCC 259]

8. In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: (SCC p.263, para 10) "10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating were committed in the course of commercial and also money transaction."

10. .In Medchl Chemical & Pharma (P) Ltd. v. Biological E. Ltd.: (2000) 3 SCC 269 this Court again reiterated the position and held: (SCC pp.272 & 278, paras 2 & 14) "2. Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge- sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law.

14. Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be

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examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observations in Nagawwa v. Veeranna Shivalingappa Konjalgi: (1976) 3 SCC 736 lend support to the above statement of law: (SCC p.741, para 5) "(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process in capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defect, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

11. In Lalmuni Devi v. State of Bihar: (2001) 2 SCC 17 this Court held: (SCC p. 19, para 8) "8. There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed."

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15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of "beyond reasonable doubt". A Constitution Bench of this court. dealing with the similar circumstances, in M.S. Sheriff v. State of Madras: AIR 1954 SC 397 held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the court held: (AIR p.399, paras 15-16) "15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence of damages. The only relevant consideration here is the likelihood of embarrassment.

16.Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it expedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have furnished."

17. In view of the preponderance of authorities to the contrary, we are satisfied that the High

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Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings.

18. In the result the appeal is allowed by setting aside the impugned order passed by the High Court and resorting the order of the Magistrate with direction to proceed with the trial of the case in accordance with the provisions of law and decide the same on merits."

This Court has, in S.B. Criminal Miscellaneous Petition

No.1618/2015, Basant Raj Mehta Vs. State of Rajasthan& Ors.

decided on 01.03.2016, held as under:-

8. The question whether criminal proceedings can go simultaneously where civil proceedings are pending has been considered by the Hon'ble Supreme Court in P. Swaroopa Rani vs. M. Hari Narayana alias Hari Babu, (2008) 5 SCC 765 relevant part of the decision is reproduced hereunder:

"11. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.(see M.S.Sheriff v. State of Madras, AIR 1954 SC 397, Iqbal Singh Marwah v.

Meenakshi Marwah, (2005) 4 SCC 370 and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants, (2005) 12 SCC 226).

12. It is furthermore trite that Section195(1)(b)

(ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah stating: (SCC pp.387-88, paras 25-26) "25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the barcreated by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of

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great misuse. As pointed out in Sachida Nand Singh,(1998) 2SCC 493 after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.

26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) is either not placed for trial on account of non- filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), Para313, the principle has been stated in the following manner:

"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong."

In regard to the possible conflict of findings between civil and criminal court, however, it was opined: (SCC pp.389-90,para 32) "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case 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 the findings recorded in one

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proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."

It was concluded: (SCC p.390, para 33) "33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.

"13. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute."

9. From the perusal of above quoted paragraphs, it is clear that civil as well as the criminal proceedings can go simultaneously if the allegation of criminality exists in the FIR.

In view of the law laid down by the Constitution Bench of

Hon'ble Apex Court in the case of Iqbal Singh Marwah (supra),

the judgments relied upon by the learned counsel for the petitioner

are of no help to him. In view of preponderance of judgments to the

contrary, this Court is not inclined to adopt the view taken by the

Hon'ble Apex Court in the judgments relied upon by learned counsel

for the petitioner.

Insofar as submission of learned counsel for the petitioner

based on the averments contained in the application filed by the

complainant under Order 6 Rule 17 CPC, is concerned, perusal of the

application in its entirety reveals that the complainant has levelled

categorical allegations therein that the Will dated 14.04.2016 was