Criminal Application No.1971 of 2006

2nd November, 2007

Petitioner Counsel: Shri. R. DARDA
Respondent Counsel: Shri. J. T. GILDA

Cases Cited:
Iqbal Singh Marwah Vs. Meenakshi Marwah, 2005 ALL MR (Cri) 1326 (S.C.)=AIR 2005 SC 2119 [Para 6]
AIR 1954 SC 397 [Para 7]
State of Haryana Vs. Bhajanlal, 1992 Supp (1) SCC 335 [Para 10]
M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd., AIR 2006 SC 2780 [Para 11]

JUDGMENT

JUDGMENT:- This is an application under Section 482 of the Criminal Procedure Code for quashing the criminal complaint as well as F.I.R. registered by the police against the present applicants.

2. One Deokaran left behind him his wife Bhagirathabai and two sons Laxminarayan and Murlidhar. Deokaran died in the year 1979 and before he died he had executed a will whereby he bequeathed his property in favour of his wife Bhagirathibai. It is alleged that Bhagirathibai died in the year 1994 leaving behind her two sons i.e. Laxminarayan and Murlidhar. It is alleged further that before she died she had executed a will on 17-1-1994 whereby she bequeathed the entire property in favour of her grand son Nandkishor son of Laxminarayan. Nandkishor, therefore, instituted a suit against his uncle Murlidhar, Murlidhar's son and the daughters of Bhagirathibai. Even Nandkishor's father Laxminarayan was also party to the suit bearing Civil Suit No.48 of 1995. In the said civil suit Nandkishor claimed that the property was bequeathed by Deokaran to Bhagirathibai and Bhagirathibai had bequeathed the entire property which she got by will in favour of plaintiff Nandkishor. Defendants in that suit i.e. the present respondent contested the suit and challenged both the wills. Similarly the present respondent Dwarkadas instituted a Criminal Complaint against Nandkishor his father and his brothers and those who had scribed and attested the wills. In the said criminal complaint he alleged that the wills have been fabricated and they are forged. It was also alleged that Deokaran and Bhagirathibai never executed any kind of will at all. The learned Judicial Magistrate after this criminal complaint was filed under Section 420, 468, 465 and 34 of Indian Penal Code, forwarded the said complaint to the police station under Section 156(3) of the Criminal Procedure Code. Upon receipt of the said complaint from the Judicial Magistrate First Class police station Mehkar registered an offence against the present applicants. It is this criminal complaint and the F.I.R. registered on the basis of the said criminal complaint, which are sought to be quashed.

3. I have heard the learned counsel for the applicants and the learned counsel for the respondent.

4. The undisputed fact is that there was a partition amongst father Deokaran and his two sons Murlidhar and Laxminarayan in 1959. It is further obvious that each one of them got 1/3rd share in the property of Deokaran. Dispute relates to this 1/3rd share of Deokaran. A civil suit (Regular Civil Suit No.48 of 1995) was instituted by Nandkishor present applicant No.1 against Murlidhar, Laxminarayan and Dwarkadas and the present respondent and others for possession of the fields. The possession was sought by the applicant in the suit on the basis of will said to be executed by Deokaran on 05-07-1979 whereby he bequeathed his property to his wife Bhagirathibai and further on the basis of the will said to be executed by Bhagirathibai on 17-01-1994 in favour of applicant No.1. The defendants 1 and 3 in that suit resisted the suit on the ground that neither Deokaran nor Bhagirathibai executed these wills and they are forged. It is alleged by the defendants therein that the will of Deokaran was not in existence at all on 05-07-1979 and even Bhagirathibai was not at all in sound and disposing state of mind. They thus disputed the genuineness of both the wills. It appears that Regular Civil Suit No.48 of 1995 is decided on 04-09-1999 and the appeal is pending.

5. The present respondent i.e. the defendant No.3 has filed a Criminal Complaint Case No.180 of 2005 in the Court of Judicial Magistrate First Class Mehkar under Section 420, 468, 465 and 34 of Indian Penal Code. The learned Magistrate referred the complaint under Section 156 of Criminal Procedure Code to the police. The police have registered crime on the basis of the complaint forwarded to them by the Magistrate. In this complaint it is alleged that accused i.e. the present applicants have forged and fabricated the wills. It is this complaint as well the F.I.R., registered by the police and the present applicants seek to quash it.

6. Learned counsel for the applicants contended that the complaint case could not have been filed by the present respondent at all, since the very wills were in question before the learned Civil Judge in Civil Suit No.48 of 1995 and it is for the Civil Judge under Section 340 of the Criminal Procedure Code to take the cognizance of the offences mentioned in Section 195 of the Criminal Procedure Code. The argument cannot be accepted since the offence of fabrication or forgery of will did not take place after the wills were produced before the Court. The Court can file such a complaint under Section 195 and 340 of the Criminal Procedure Code only when the document is tampered with or forged after it is filed in the Court. Section 340 of the Criminal Procedure Code is included in Chapter XXVI of the Criminal Procedure Code which deals with offences affecting administration of justice. The very title therefore makes it clear that the act or offence must have taken place when the matter is pending before the Court and the act or offence committed could result in wrong decision. Here the alleged offences have taken place before the document came into custody of the Court. Supreme Court in Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another AIR 2005 Supreme Court 2119 : [2005 ALL MR (Cri) 1326 (S.C.)] has observed thus:

"9. The scheme of the statutory provision may now be examined. Broadly, Section 195 Criminal Procedure Code deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188, IPC which occur in Chapter X of the IPC and the heading of the Chapter is - 'Of Contempts of The Lawful Authority of Public Servants'. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI of IPC which is headed as - 'Of False Evidence And Offences Against Public Justice'. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a Court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a Court of Justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195, viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a Court" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appeal to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 Cr.P.C. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court.

10. Section 195(1) mandates a complaint in writing of the Court for taking cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341 Cr.P.C. which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is - 'Provisions As to Offences Affecting The Administration of Justice'. Though as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the Section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the Sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the Sections which follow them than might be afforded by a mere preamble. (See Craies on Statute Law, 7th Ed. Pages 207, 209). The fact that the procedure for filing a complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz. which is committed after the document is produced or given in evidence in Court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in Court cannot, strictly speaking, be said to be an offence affecting the administration of justice."

7. Shri. Darda learned counsel for the applicant submitted that the decision in Iqbal's case cannot be applied for the reason that the validity of the will shall be decided by the Civil Court and that has already been decided since the suit has been decided. However it must be mentioned that the appeal is pending. There is no doubt that the validity of the will shall be decided in civil suit in which the wills are in question. The Supreme Court in Iqbal's case further observed as follows:

"24. "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 Constitution Bench in M. S. Sheriff Vs. State of Madras (AIR 1954 SC 397) give a complete answer to the problem posed:

"(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 the innocent should be obsolved as early as is consistent with a fair and impartial trial. An other 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."

Supreme Court has quoted the decision reported in AIR 1954 Supreme Court 397 with approval. In the said decision the Supreme Court specifically observed as follows:

"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."

8. In the instant case civil suit has been decided and Appeal No.98 of 1999 is still pending. While it appears from the papers filed on record that the criminal complaint is sent to the police under Section 156(3) of Criminal Procedure Code and the offence has been registered. In fact, therefore, the Criminal Complaint Case No.180 of 2005 stands terminated. Now that an offence has been registered the police will investigate into the offence and that should end into the filing before the Court a final report, under Section 173 of Criminal Procedure Code. It could either be a charge-sheet if the evidence is sufficient or a summary if no evidence is found.

9. This Court had while issuing notice to respondents stayed the proceedings in Criminal Case No.180 of 2005. Obviously the further investigation in the crime has been stayed. From the observations of the Supreme Court it is clear that it does not matter even if both the proceedings proceed and are decided, since both need to be decided on the basis of the evidence before it and none should take the decision in the other case as binding. In para 16 in M. S. Sheriff's case Supreme Court observed as follows:

"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." (Emphasis added).

Supreme Court therefore says that it would be inexpedient to stay the civil proceedings if they have come near its end and give precedence to the criminal proceedings. We have seen that civil suit has already been decided in 1999 and Appeal No.98 of 1999 is now 8 years old and is in fact over ripe for hearing. In the circumstances it would not be proper to stay the proceedings in civil appeal at all. The criminal proceedings are on the other hand at the stage of investigation only and one does not know what would be the out come of the investigation. Hence I do not think that either of them need to be stayed.

10. This takes me to consider the question if the F.I.R. registered on the basis of criminal complaint lodged with the Magistrate needs to be quashed. The Supreme Court in State of Haryana And Others Vs. Bhajanlal And Others 1992 Supp (1) Supreme Court Cases 335 has laid down the following parameters for quashing F.I.R. or proceedings:

"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay dowm any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kind of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

After having gone through the criminal complaint lodged with the Magistrate it is clear that it primafacie discloses offence of fabrication of will. The case does not fall in any of the criteria as laid down in Bhajanlal's case, hence in fact there is no substance in the application.

11. Learned counsel for the applicants had finally urged that this is basically a civil dispute and not criminal one and therefore criminal proceedings should be quashed. He submitted that the Supreme Court in M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd. & Ors. AIR 2006 Supreme Court 2780 has deprecated the practice of converting a civil dispute into criminal. In the instant case the dispute is of both nature. There is a clear and specific allegation that the will is a forged and fabricated document. In Iqbal Singh's case also the will was in question before civil as well as criminal Court. There is therefore, no question of converting a civil dispute into criminal. If the will is said to be forged, it is certainly an offence. I find myself unable to accept the submission of the learned counsel for the applicants and therefore dismiss the criminal application.

Application dismissed.