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2007 DIGILAW 1651 (RAJ)

Tej Singh and 8 others v. Matoli and State

2007-08-31

AJAY RASTOGI

body2007
JUDGMENT 1. - Instant petition U/s 482 Cr.PC has been filed against order dated 08.08.1994 whereby Judl. Magistrate, Rupvas (Bharatpur) took cognizance of offences U/s 467, 468 & 120-B IPC against 11 accused including petitioners in Cr. Case No. 188/93, which was upheld by Addl. Sess. Judge, Bayana vide order dated 16.10.98 in Cr.Rev. No. 48/94. 2. Respondent no. 1 filed a complaint before the trial Magistrate on 05.11.84 alleging interallia that a forge document particularly will of deceased Ramjilal who died in the year 1983, was prepared by accused petitioners and got it executed in favour of grand sons of his uncle, Kishan and mutation was opened in their names in revenue record on 30.7.84 and that apart, beneficiaries including petitioners and others are signatories of the will who attested documents, as well. It has also been alleged that his grand father Devi Singh had four sons, Angna Singh F/o Matoli (complainant), Ramjilal, Kishan & Gyasi. Ramjilal died without any issue. Since father of complainant also died, therefore, after death of Ramjilal, initially application was jointly filed by two uncles Kishan & Gyasi alongwith complainant for mutation of land belonging to his uncle Ramjilal and mutation No. 412 was opened in their names on 20.03.84 which was attested on 30.04.84 by Girdawar and was placed before Gram Panchayat for approval on 25.06.84 but for some reasons, it was adjourned for 10.08.84 and in the meanwhile, accused petitioners produced forged will dated 19.08.82 and opened mutation in the names of legatee whereof who are grand-sons of one of his uncle Kishan on 30.07.84 and got it finally confirmed before next date i.e. 10.08.84 fixed by Gram Panchayat in regard to earlier mutation entered on 20.03.04 on joint application of complainant, Kishan & Gyasi. 3. On said complaint, statements U/Ss 200 & 202 CrPC were recorded and taking note whereof, learned Magistrate discharged them U/s 203, CrPC vide order dated 27.04.92 against which, revision petition was filed which was allowed by Court of Revision vide order dated 08.04.93 and matter was remanded back to the Magistrate to examine afresh in accordance with law. After remand, learned Magistrate taking note of material on record, took cognizance of offences U/Ss 467, 468 & 120-B, IPC vide order dated 08.08.94 and issued process to the petitioners U/s 204, CrPC - against which Cr.Rev. After remand, learned Magistrate taking note of material on record, took cognizance of offences U/Ss 467, 468 & 120-B, IPC vide order dated 08.08.94 and issued process to the petitioners U/s 204, CrPC - against which Cr.Rev. No. 48/94 was preferred which was dismissed by Court of Revision vide order dated 16.10.98 wherein it has been observed that Magistrate has taken cognizance while considering statements of Matoli and his witnesses Bhajan Singh & Parasram recorded U/s 202, CrPC, apart from complaint, which disclosed offence alleged against petitioners. Hence this petition. 4. Counsel for petitioners submits that there is already a civil dispute pending between the parties and unless a finding is recorded as regards Will being forged - in the absence whereof, Magistrate has committed serious error of law in taking cognizance and issue of process calling upon petitioner in facts & circumstances of instant case is nothing but an abuse of process of law, which deserves to be set aside. 5. Counsel further submits that learned Magistrate while taking cognizance has failed to prima facie disclose of offence being committed and order impugned is a non-speaking and earlier order of taking cognizance was set aside by Court of Revision filed at the behest of complainant and there is no reason come forward while passing order impugned U/s 204, CrPC and that being so, Magistrate was under obligation to disclose prima facie reasons which prevailed upon him for taking cognizance against petitioner particularly when matter had come on remand with the direction to examine on merits afresh and proceed according to law. 6. Public Prosecutor and Counsel for complainant both while supporting the orders impugned, submit that cognizance is taken of offence and not of offender and once the Court on a perusal of complaint & statements recorded U/s 200 & 202 CrPC, feels satisfied of disclosing commission of offence, there is no reason to reject complaint at this stage and that apart, merely because revenue suit is pending and earlier petitioners were discharged U/s 203 CrPC, it has not become imperative upon Magistrate to disclose reason for taking cognizance upon remand by Court of Revision to examine matter afresh on merits. In support of contention, they relied upon the decision in CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., AIR 2005 SC 4284 and Dy.CC of Imports & Exports v. Roshanlal Agarwal, 2003 (1) WLC (SC) Cri. In support of contention, they relied upon the decision in CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., AIR 2005 SC 4284 and Dy.CC of Imports & Exports v. Roshanlal Agarwal, 2003 (1) WLC (SC) Cri. 584 . 7. I have considered contentions of Counsel for the parties and with their assistance, examined material on record. Cognizance is taken of offence and not of offender, once Court, on perusal of complaint, is satisfied that complaint discloses commission of offence, there is no reason to reject complaint at that stage. Cognizance is taken at initial stage when Magistrate peruses complaint with a view to ascertain as to whether commission of any offence is disclosed and thereafter issuance of process comes into play and at this stage, after consideration of material, Court has to decide as to whether offence is made out to proceed against offender. It is true that sufficiency of material of adequacy of evidence is not required to be examined for supporting conviction; which has to be determined at the stage of trial and not at the stage of taking cognizance. 8. In instant case, complaint & statements U/s 200 & 202 CrPC disclose the fact that earlier application was jointly filed by all the three and mutation entry No. 412 was made in revenue record on 20.03.84 but before it could be finally approved by Gram Panchayat, in the meantime, accused petitioners produced alleged will of Ramjilal dated 19.08.82-on the basis whereof, entries of mutation were opened in the name of grand sons of Kishan on 30.07.84 and finally approved before next date 10.08.84 fixed for final approval of earlier entry dated 20.03.84. Narration of facts in which incident has taken place and referred to in their statements recorded U/s 200 & 202 CrPC, learned Magistrate after recording his satisfaction, took cognizance of offence and issued process to the petitioners. Court of revision has also considered all statements made in detail in his order impugned. This Court does not find any error committed by courts below while taking cognizance against petitioners. 9. Consequently, the misc. petition fails and is hereby dismissed alongwith stay petition No. 897/1998. Record be sent back to the court below to proceed in accordance with law expeditiously.Petition Dismissed. *******