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2013 DIGILAW 567 (UTT)

Babli v. State of Uttarakhand

2013-08-31

U.C.DHYANI

body2013
Judgment : 1. The applicants, by means of present application moved under Section 482 Cr.P.C., seek to quash the summoning order dated 17.09.2012, passed by Chief Judicial Magistrate, Haridwar, charge-sheet and the entire proceedings of Criminal Case No. 6565 of 2012, State vs. Babli and others, under Sections 420, 467, 468, 469, 471 and 506 IPC, pending in the Court of Chief Judicial Magistrate, Haridwar. 2. Taking recourse to Section 156 (3) Cr.P.C., complainant/respondent no. 2 lodged a first information report against three accused persons (applicants), on 11.01.2011, in PS Jwalapur, Haridwar, which was registered as case crime no. 07 of 2011, under Sections 420, 467, 468,469, 471 and 506 IPC. After the investigation, a charge-sheet against the accused persons for the selfsame offences was filed, which was registered as Criminal Case No. 6565 of 2012, captioned as State vs. Babli and others. Aggrieved against the charge-sheet and summoning order, present application under Section 482 Cr.P.C. was moved by the applicants for quashing the charge-sheet and the entire proceedings of the aforesaid criminal case. 3. According to the first information report, informant-respondent no. 2 was a widow, whose husband died on 31.10.2003 in suspicious circumstances. Late Mahendra Singh (respondent no. 2’s husband) had movable and immovable property along with bank account and locker. Accused-applicant no. 1, who proclaimed herself to be the niece of late Mahendra Singh, lived with him. When Mahendra Singh was killed, first information report was lodged by accused-applicant no. 1. During the course of evidence, she did not support the prosecution story, which resulted into the acquittal of the assailant. Accused-applicant no. 1 prepared a forged Will dated 13.10.2003, allegedly executed by Mahendra Singh. Smt. Babli (accused-applicant no. 1) instituted a civil suit in the Court of Civil Judge (S.D.), Haridwar, which was registered as O.S. No. 1 of 2004, whereby she made an attempt to claim ownership over the property of late Mahendra Singh. The said O.S. was dismissed on 23.11.2010. Applicant no. 1, in connivance with applicants no. 2 & 3, prepared a forged Will dated 13.10.2003, allegedly executed by Mahendra Singh to grab property of the respondent no. 2. They also threatened her with dire consequences. The incident was allegedly witnessed by Vishal Saini, Sundar Singh, Deshraj and Sudesh Chandra. 4. The said O.S. was dismissed on 23.11.2010. Applicant no. 1, in connivance with applicants no. 2 & 3, prepared a forged Will dated 13.10.2003, allegedly executed by Mahendra Singh to grab property of the respondent no. 2. They also threatened her with dire consequences. The incident was allegedly witnessed by Vishal Saini, Sundar Singh, Deshraj and Sudesh Chandra. 4. A bare reading of the first information report suggested allegations of cognizable offences against the applicants, which allegations were substantiated during the course of investigation, and that is why, the I.O. submitted the charge-sheet against them. Copy of the questioned document (Will) is brought on record. 5. The judgment rendered by learned Civil Judge (S.D.), Haridwar on 23.11.2010 is also brought on record. Issues were framed by learned Civil Judge to the effect whether Will dated 13.10.2003 was a forged document ? Whether Mahendra Singh Saini executed a Will in favour of the plaintiff on 13.10.2003? Learned Civil Judge, after considering the evidence on record including the opinion of handwriting expert, came to the conclusion that the Will dated 13.10.2003 was a forged document. Learned Civil Judge also held that the Will dated 27.10.2003 was a genuine one. The suit was decreed accordingly on 23.11.2010. Indicating the facts, respondent no. 2, taking recourse to Section 156 (3) Cr.P.C., lodged a first information report against the accused-applicants in terms of the same. Although the judgment rendered by Civil Judge (S.D.), Haridwar is challenged by way of filing of appeal, but nevertheless, the finding of a court of competent jurisdiction exists as on today. It cannot be said, as on the date, that the Will dated 13.10.2003, was not a forged document. In other words, it was declared as a forged document by a Court of competent jurisdiction. Only time can tell as to what will happen in the appeal, which is preferred by the defendants of the aforesaid O.S. 6. The narrow inspection hole through which this Court is required to go through the material on record is, whether, prima facie, offences were made out against the accused-applicants or not? The obvious reply to the said question is in the affirmative. A bare perusal of first information report suggested the same. Investigating officer substantiated the same and above all, there is categorical finding of Civil Court to this effect, although under challenge. The verdict in the appeal is yet to come. The obvious reply to the said question is in the affirmative. A bare perusal of first information report suggested the same. Investigating officer substantiated the same and above all, there is categorical finding of Civil Court to this effect, although under challenge. The verdict in the appeal is yet to come. But as on today, a prima facie case exists against the accused-applicants. 7. The Hon’ble Supreme Court, in Rajiv Thapar and others vs. Madan Lal Kapoor, (2013) 3 SCC 330 , has held that the High Court should Consider the following steps while deciding a petition under Section 482 Cr.P.C.: Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? Step four: Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to al the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. 8. A perusal of the record of the instant case will suggest that the reply to the majority of the aforesaid question is in the negative. It is not in the affirmative. As a consequence thereof, there is no occasion to quash the charge-sheet and the criminal proceedings pending against the accused-applicants in exercise of jurisdiction vested under Section 482 Cr.P.C. 9. Before parting with , this Court would like to refer to para 28 of the judgment rendered by Hon’ble Apex Court in Rajiv Thapar’s case (supra) : “The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. Before parting with , this Court would like to refer to para 28 of the judgment rendered by Hon’ble Apex Court in Rajiv Thapar’s case (supra) : “The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defence raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.” 10. Application under Section 482 Cr.P.C. is, therefore, dismissed.