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2001 DIGILAW 1219 (RAJ)

Govind Prasad v. State

2001-08-08

N.P.GUPTA

body2001
JUDGMENT 1. - Heard learned counsel for the parties. 2. This petition has been filed by the accused-petitioners seeking quashing of FIR No. 10/2001 registered at P.S. Rashmi for the offence under Section 420 IPC. According to First Information Report, the father of the parties being Roop Shankar purchased two stamps on 22.3.91 and handed over one stamp each to the two brothers, with a word that he will effect partition. Thereafter, Sh. Roop Shankar expired on 21.1.98, without effecting any partition, even without signing the stamp. It was then alleged that after death of Roop Shankar, the petitioner Govind Prasad, his father-in-law Badri Prasad, and Ram Lal, by joining hands dishonestly forged a false will, and for establishing that will, a case No. 105/99.has been instituted. It is thereupon only that the informant learnt about the forgery and after making further consequential averments, the first information report was lodged. 3. It is contended by the learned counsel for the petitioner that since the application under Section 372 and 276 of the Indian Succession Act filed by the petitioner is already pending before the Court of learned Addl. District and Sessions Judge No. 1 Chhitorgarh wherein the question of existence or genuineness of the will is to be gone into the investigation of the present F.I.R. is required to be quashed or at least in the alternative to be stayed till disposal of the suit. Learned counsel has placed reliance on the judgments of this Court reported in Dharam Chand v. The State of Rajasthan reported in 1985 RLW 239, . and Bhagirath v. Hardayal & Ors. reported in 1993 Cr. L.R. (Raj.) 427, . and a judgment of Hon'ble the Supreme Court in Tukaram Annanda Chavan & Anr. v. Machindra Yeshwant Patil reported in 2001 SCW 660, . 4. The argument raised is two fold. The first limb of the argument is that since this precise controversy is to be gone into in the civil Court, it would not be proper to allow the investigation to continue on the same question as a parallel proceeding. The next limb of the argument is that since the documents is produced in the civil court, by virtue of Section 195(1)(b) in absence of any complaint on behalf of the Court concerned, on the complaint of the private party, even taking of cognizance is barred, as such the investigation would be futile. 5. The next limb of the argument is that since the documents is produced in the civil court, by virtue of Section 195(1)(b) in absence of any complaint on behalf of the Court concerned, on the complaint of the private party, even taking of cognizance is barred, as such the investigation would be futile. 5. Learned counsel for the non-petitioner on the other hand opposes the petition. 6. As regards continuance of parallel proceeding is concerned, in my view, in view of the judgment of Hon'ble the Supreme "Court in Usha Ahuja v. State of Haryana and Ors. reported in AIR 1999 SC 3232, , the investigation is not required to be stayed till disposal of the suit. Regarding the other objection raised on the anvil of Section 195(1)(b) by relying upon the aforesaid three judgments, so far as the judgments in Dharam Chand and Bhagirath are concerned, the matter stands sufficiently answered by subsequent judgments of Hon'ble the Supreme Court in Sachinda Nand Singh & Anr. v. State of Bihar & Anr. reported in 1998(1) JT (SC) 370, , and State of Punjab v. Raj Singh & Anr. reported, in 1998(1) JT (SC) 145, , So far as the judgment in Tukararn is concerned, true it is that the judgment is of the year 2001, where the complaint was filed before the criminal court for the offences under Sections 177, 181, 193, 406, 465 and 474 IPC r/w Section 34 alleging that the accused persons have got affixed bogus/fake signatures/thumb impressions of the members of the educational institution by themselves or through other persons for the purpose of showing that there was necessary quorum in the General Body Meeting held on 27.9,1984. On that complaint, the process was issued for the offence under Section 463 r/w 34 IPC. It was also noticed that a complaint of the nature could be lodged only by the Charity Commissioner as provided under Section I95(1)(a) Cr.P.C. and private complaint filed by the complainant could not be entertained. The High Court in that case declined to accept the contention about the bar of Section 195(1)(a) Cr.P.C. on the ground that the allegations in the complaint were concerning the events prior to the filing of the proceeding before the Assistant Charity Commissioner and that part of the complaint was not concerning anything happening before the Assistant Charity Commissioner. The High Court in that case declined to accept the contention about the bar of Section 195(1)(a) Cr.P.C. on the ground that the allegations in the complaint were concerning the events prior to the filing of the proceeding before the Assistant Charity Commissioner and that part of the complaint was not concerning anything happening before the Assistant Charity Commissioner. It was also held by the High Court that as far as the happening before the Assistant Charity Commissioner is concerned, that is recorded in para 6 of the complaint which would invite the application of Sections 177 and 181 of IPC and in which case the complaint will have to be lodged by the Charity Commissioner. Before Hon'ble the Supreme Court, the contention was raised to the effect that the complaint related to the allegations of interpolations/fabrications of the documents before initiation of proceedings which is "pending with the Assistant Charity Commissioner and also allegation regarding use of the said documents in the said proceedings and thus, provision of Section 195(1)(a) is attracted. And Hon'ble The Supreme Court held that "a contention that in the proceedings relating to the confirmation or otherwise of the change report of contention has been raised that the documents on the basis of which the report has been submitted have been forged and fabricated by the appellants. In all probability that question will also arise for consideration by the authority." And thus, it was thought proper to suspend the proceedings in the criminal case. 7. However, a perusal of the earlier judgment of Hon'ble the Supreme Court reported in 1998(1) JT (SC) 370 would show that, that judgment was precisely concerning with the applicability of bar of Section 195(l)(b) wherein the allegation precisely made was that the appellants had forged the documents, certified copy of Jamabandi Rent Roll and produced it in a court of Executive Magistrate which was then dealing with proceedings under Section 145 Cr. P.C. and in that case after investigation a charge sheet was submitted whereupon cognizance was taken. Hon'ble the Supreme Court dealing with the provisions of Section 195(1)(b) held that since the offence of forgery was committed far out side the Court before its production in the court, the bar of Section 195(1)(a) would not be attracted. P.C. and in that case after investigation a charge sheet was submitted whereupon cognizance was taken. Hon'ble the Supreme Court dealing with the provisions of Section 195(1)(b) held that since the offence of forgery was committed far out side the Court before its production in the court, the bar of Section 195(1)(a) would not be attracted. A reference was also made to the earlier judgment of Hon'ble the Supreme Court in Patel Laljibhai, Somabhai, wherein it was held that the legislature could not have intended to extend the prohibition in the sub section to offences committed by a party to the proceedings prior to his becoming such a party, and that any construction to the contrary would unreasonably restrict the right of a person which was recognised in Section 190 Cr.P.C. Since this judgment is a judgment by three Hon'ble Judges, while the judgment in Tukaram's case is by two Hon'ble Judges only. I am better bound by the earlier judgment. 8. I may here also refer to yet another judgment of Hon'ble the Supreme Court in State of Punjab v. Raj Singh and Anr, reported in JT 1998(1) SC 145, wherein also considering the bar of Section 195(1) and considering the provisions of Section 190 Cr.P.C., the order of the High Court quashing the FIR qua against the accused persons alleging the offence under Sections 419, 420, 467 and 468 IPC was quashed and it was felt that "it is of course true that upon the charge sheet (Challan), if any. filed on completion of the investigation....the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) Cr.P.C. but nothing therein deters the Court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340, Cr.P.C." 9. In this view of the matter, l am not inclined to interfere with the investigation by quashing the First Information Report. The misc. petition is, therefore, dismissed. *******