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2000 DIGILAW 1158 (PAT)

Hira Lal v. State Of Bihar

2000-09-26

S.N.PATHAK

body2000
Judgment S.N.Pathak, J. 1. This quashing application has been filed against the order of cognizance dated 23.12.1995. 2. Petitioners lawyer submitted that as alleged one Pramod Vyas, the informant, had filed a written report to the police alleging therein that he was the adopted son of one Kamla Devi, who had created a Will in his favour. Although the said Kamla Devi had a sister named Mani Kunwar, she had created a Will in his favour and so he was the sole proprietor of the property of Kamla Devi the deceased. He had also got his name mutated over the property in question. However, some fake person executed a sale-deed in favour of the petitioners of this miscellaneous case and thus committed forgery regarding the alleged sale-deed. On the basis of the aforesaid com- plaint, the police investigated the case after its institution. During the course of investigation, the Superintendent of Police and some Dy. Superintendent of Police after supervising the case directed the Investigating Officer to submit final report, but still the Investigating Officer submitted charge-sheet on the basis of which the Court concerned took cognizance under Sections 420, 467, 468 and 471, IPC. 3. On perusal of the impugned order, it transpires that the order, by which the Court took cognizance of the case on perusal of the case diary, charge-sheet etc. is not a detailed one, rather a cryptic one. So the question simply is whether the offence at all was committed on the basis of the investigation and evidence recorded during the course of investigation. As alleged, the informant claimed concerned property on the basis of the Will created in his favour by the deceased. Admittedly the Will was not probated. Now the question is whether the persons who created the sale-deed in favour of the petitioners of this miscellaneous case were the title holders or not. Admittedly, the concerned executants of the sale-deed have not been made party to the case in question. So the case regarding forgery shall be directed against the executants of the sale-deed and not against the petitioners. Petitioners shall be prosecuted only under Section 120-B, IPC, so far as colluding with the executants to create the alleged sale-deed, if at all it was forged. The cognizance order does not mentioned Section 120-B, IPC nor the charge-sheet submitted before the lower Court has mentioned the Section. Petitioners shall be prosecuted only under Section 120-B, IPC, so far as colluding with the executants to create the alleged sale-deed, if at all it was forged. The cognizance order does not mentioned Section 120-B, IPC nor the charge-sheet submitted before the lower Court has mentioned the Section. Moreover, unless the executants of the sale-deed are prosecuted, application of Section 120-B. IPC shall not be complete because it is with the executants with whom the petitioners shall be colluding to obtain the alleged forged sale- deed. It is, therefore, not understandable as to why the executants of the sale-deed were not prosecuted by the informant. So application of Sections 467, 468 etc. would not be directed against the petitioners who are the beneficiaries of the sale- deed. Section 120-B, IPC shall not be complete without prosecuting the alleged executants of the alleged forged sale- deed. The written report which gave rise to the FIR (Annexure 1) does not indicate that any body had impersonated the executants of the sale- deed. Moreover, the person allegedly impersonating the executants of the sale-deed should also have been named and prosecuted. Unless that is done, the question of any fake person appearing as the executant in place of the rightful owner does not arise. I have already stated above that the executant of the deed should have been prosecuted in order to fix the guilt of forgery on the ground that the executant of the sale-deed did not have any title to sell the land in question. It was only on this basis that the forgery could be proved on the basis of the finding that the executant of the sale- deed had no title at all and hence the sale-deed executed was a fake one and on this basis it could have been termed as forged. The supervision notes (Annexure 5 and 6) which have been tagged with the record of this case indicate that the higher police officers had directed the Investigating Officer to submit final report on the ground that it was purely a case of civil nature. Title Suit is pending as per the order- sheet of the Court of sub-Judge filed before this Court by the petitioners as Annexure 4. Title Suit is pending as per the order- sheet of the Court of sub-Judge filed before this Court by the petitioners as Annexure 4. So the question of genuineness or otherwise of the alleged sale-deed shall be decided in the title suit concerned and the informant of this case shall have a proper remedy. If he succeeds in the suit, he would get back the suit property and he will have all the incidental remedies in the suit itself. 4. It is also mysterious and surprising as to why the alleged executants of the sale-deed were not prosecuted in this case. So, I am of the opinion that without prosecution of the alleged executant, the criminal case in question was misdirected and the real culprits and offenders shall not be punished. On the basis of the aforesaid discussions and findings, I am of the opinion that there was no case at all on the basis of which, the petitioners could be prosecuted for the offences as mentioned in the cognizance order. Hence, I think it is a fit case in which this Court must interfere. 5. In the result, this miscellaneous case is allowed and the impugned order of cognizance is set aside.