C528/685/2025
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Uttarakhand High Court

C528/685/2025 on 21 May, 2025

Author: Vivek Bharti Sharma

Bench: Vivek Bharti Sharma

                    Office Notes, reports,
                   orders or proceedings or
SL.
No.
         Date           directions and                                COURT'S OR JUDGE'S ORDERS
                    Registrar's order with
                          Signatures
      21.05.2025                              C-528 NO. 685 of 2025

                                              Hon'ble Vivek Bharti Sharma, J.

Mr. Piyush Garg, learned counsel for the petitioners.

2. Mr. Deepak Bisht, learned Deputy A.G. along with Mr. Akshay Latwal, learned A.G.A. for the State.

3. Mr. Sohil Sharma, learned counsel for respondent no.3.

4. Present petition is filed by the petitioners to quash the impugned order dated 05.09.2023 passed by learned Additional Chief Judicial Magistrate, Roorkee, District Haridwar in Misc. Application No. 266 of 2023 whereby the application filed by respondent no.3/complainant under Section 156(3) Cr.P.C. (the Criminal Procedure then was) has been allowed as well as the impugned order dated 15.05.2025 passed by learned District and Sessions Judge, Haridwar in Criminal Revision No. 126 of 2023 whereby the criminal revision filed by the petitioners against the order dated 05.09.2023 has been dismissed.

5. Learned counsel for the petitioners would submit that the petitioners are family members specifically the nieces/nephews of respondent no.3/complainant, who is their paternal aunt (Bua); that, respondent no.3 has initiated criminal proceedings against the petitioners and three other individuals including her brother, who is father of the petitioners.

He would furthers submit that respondent no.3/complainant filed a complaint under Section 156(3) of the Cr.P.C. before the Additional Chief Judicial Magistrate, Roorkee, District Haridwar against the petitioners and three other persons with the allegation that after the sad demise of Smt. Ishwari Devi, who was mother of the respondent no.3/complainant and grandmother of the petitioner nos.1 & 2, the petitioners and their father, namely, Pradeep Batra allegedly forged the signature of respondent no.3/complainant on an affidavit falsely stating that she had relinquished her share in their mother's property in favor of father of the petitioners; that, the petitioners used this forged affidavit to fabricate a Will dated 01.03.2018 and by using this fabricated will transferred the movable and immovable properties belonging to the late Smt. Ishwari Devi in their names; that, petitioner no.2 managed to transfer ₹50 lakhs into her own account from the account of the late Smt. Ishwari Devi purportedly based on a forged will dated 19.03.2019.

6. Learned counsel for the petitioners would further submit that the allegations levelled in the complaint under Section 156(3) Cr.P.C. are false and fabricated; that, the grandfather of petitioner nos. 1 and 2 passed away in the year 2004, leaving behind his wife, Smt. Ishwari Devi; his son (the father of petitioner nos. 1 and

2); and two daughters, namely, Smt. Anju Dawar and Smt. Manju Kapoor (respondent no. 3 herein); that, during her lifetime, Smt. Ishwari Devi executed a will, thereby bequeathing her movable and immovable properties in favour of her son, grandson, and granddaughter.

He would further submit that respondent no. 3, Smt. Manju Kapoor with own free will had executed an affidavit in the year 2019 in favour of the father of the petitioners, wherein she unequivocally stated that she had no claim or share in the properties left behind by Smt. Ishwari Devi; that, the other daughter Smt. Anju Dawar also executed a similar affidavit in favour of the father of the petitioners affirming her relinquishment of her share in the said properties.

7. Learned counsel for the petitioners would further submit that the petitioners are innocent and have falsely been implicated in the present case; that, the impugned order is bad in the eyes of law as in paragraph no. 7 of the impugned order dated 05.09.2023, the learned Additional Chief Judicial Magistrate, Roorkee, Haridwar has himself observed that the authenticity and legality of the will executed by Smt. Ishwari Devi can only be adjudicated by a competent civil court. However, despite this observation, the Magistrate has erroneously directed the registration of an FIR and investigation concerning the alleged affidavit.

He would further submit that the allegations made in the application under Section 156(3) Cr.P.C. are incorrect and concocted; that, the other paternal aunt (Bua) of the petitioners i.e., Ms. Anju Dawar, who is the sister of respondent no.3/complainant has lodged an FIR against respondent no.3 alleging that the two affidavits executed by both sisters in favour of his brother are genuine and not forged and Smt. Manju Kapoor/respondent no.3 has been blackmailing Mr. Pradeep Batra with threats of falsely implicating him; that, a charge sheet has already been filed against respondent no.3/complainant in connection with the said FIR, therefore, the allegation of fabricating the affidavit has falsely been levelled by the respondent no.3/complainant against the petitioners.

8. Learned counsel for the petitioners would further submit that the dispute between the parties is essentially civil in nature, which has been given a criminal colour as respondent no.3/complainant has also instituted a civil suit, O.S. No. 41 of 2025, titled Manju Kapoor vs. Pradeep Batra and Others, before the Court of Civil Judge (Senior Division), Roorkee, seeking a decree of declaration for declaring the Will dated 01.03.2018 as null and void, which currently pending adjudication.

9. On the other hand, the learned counsel for respondent no.3 would submit that the petitioners together with their father and other accused have forged a Will of Smt. Ishwar Devi; that, the petitioners also created a false affidavit using a forged signature of respondent no.3 and used this document to get transferred all movable and immovable properties into their own names, however, he would fairly concede at Bar that the sister of respondent no.3/complainant, namely, Smt. Anju Dabur has filed an FIR against respondent no.3 and civil suit challenging the Will of Late Smt. Ishwari Devi, has been filed by respondent no.3/complainant.

He would further submit that the court is under a legal obligation to direct the police to investigate the accused persons, therefore, both the trial court and the revisional court were justified in passing the impugned orders.

10. To this, learned counsel for the petitioners submitted that although Section 156(3) of the Cr.P.C. empowers a Magistrate to order a police investigation, this provision should not be permitted to be misused by complainants as a matter of routine so as to give the criminal colour to civil dispute.

In support of his submission, he relied upon the judgments of Hon'ble Supreme Court in the cases of Om Prakash Ambadkar v. State of Maharashtra & Others, 2025 SCC OnLine SC 238, and Babu Venkatesh & Others v. State of Karnataka & Another, (2022) 5 SCC 639, wherein the Hon'ble Court held that whenever an application is filed by a complainant before the Judicial Magistrate seeking an order for police investigation under Section under Section 156(3) Cr.P.C., a Magistrate may direct the police to register an FIR and investigate a matter; that, this is not an absolute duty, but rather a discretionary power the Magistrate can exercise when they believe that a cognizable offence can be made out on plain reading of the complaint and the police have failed to act and the Magistrate has not to pass the order in mechanically and has to apply his mind properly.

He also relied upon the pronouncement of law in following judgments:

(i) Rajesh Bhai Muljibhai Patel and Ors. Vs. State of Gujarat and Another (2020) 3 SCC 794.

(ii) M. Srikanth Vs. State of Telangana and Another (2019) 10 SCC 373

(iii) Sardool Singh and Another Vs. Smt. Nasib Kaur (1987) (Supp.) SCC 1462

(iv) Jai Shri and Anr. Vs. State of Rajasthan (2024) SCC Online SC 54

(v) Naresh Kumar and Another Vs. State of Karnataka and Another (2024) SCC Online SC 268.

(vi) Dr. Sonia Verma and Another Vs. State of Haryana and Another (2024) SCC Online SC 349.

(vii) AM Mohan Vs. State represented by S.H.O. and Another (2024) SCC Online SC 339.

11. Per contra, learned counsel for respondent no. 3/complaint would submit that the Hon'ble Supreme Court in plethora of judgments has held that it is well settled that when a Magistrate receives a complaint under Section 156(3) Cr.P.C., the Magistrate is duty bound to take cognizance and direct an investigation.

However, he prays for time to file a detailed counter affidavit in the matter and recent judgments of Hon'ble Supreme Court on the aforesaid point.

12. List this case on 13.06.2025 for hearing on admission.

13. Till the next date of listing, the effect and operation of the impugned order dated 05.09.2024 passed by learned Additional Chief Judicial Magistrate, Roorkee, District Haridwar in Misc. Application No. 266 of 2023as well as the impugned order dated 15.05.2025 passed by learned District and Sessions Judge, Haridwar in Criminal Revision No. 126 of 2023 shall remain stayed.

(Vivek Bharti Sharma, J.) 21.05.2025 Mamta