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2013 DIGILAW 894 (MP)

Laxminarayan @ Billa v. Rajkumar

2013-08-01

D.K.PALIWAL

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JUDGMENT D.K. Paliwal, J. 1. This petition has been filed under Section 482 of Cr.P.C. against the order passed by the First ASJ, Jaura, Distt. Morena, in Criminal Revision No. 11 (Laxminarayan @ Billa Vs. Rajkumar & Ors.) whereby the revision filed against the order passed by the ACJM, Jaura, in case No. 10 (Rajkumar Vs. Laxminarayan & Ors.) has been dismissed. The brief facts giving rise to this petition are that respondent No. 1 filed an application under Section156(3) of Cr.P.C. against the petitioner and respondents No. 2 to 6 stating that his grand-mother Late Smt. Kausa @ Kaushalya during her life time had executed a registered will in favour of him, his brother Sant Kumar and Neetraj on 8.6.2010. Thereafter, she died on 20.6.2010. Smt. Kausa had also executed two sale-deeds dated 18.4.1996 and 23.7.1999 in favour of Ramcharan Chaukhariya, Laxmidevi and Smt. Bhagwati by affixing her thumb impression on the sale-deeds. After the death of Smt. Kausa, the petitioner in connivance with respondents No. 2 to 6 forged a will in favour of Laxminarayan, Ramlakhan and Bhanuprakash stated to be executed by Late Smt. Kausa. The learned ACJM on the application of respondent No. 1 directed the complainant to produce his entire evidence in support of his complaint and fixed the case for 27.12.2010, however, later on, the learned Magistrate directed the SHO, Police Jaura to investigate the matter, get the documents examined by a handwriting expert and thereafter submit the report. The petitioner aggrieved with the said order preferred a revision but the same has been dismissed. Being aggrieved this petition has been preferred. 2. It is submitted by learned counsel for the petitioner that order passed by the learned Courts below is against the principles of law. The learned Court below has failed to appreciate the provisions of Sections 156, 200 and 202 of Cr.P.C. in its right perspective. The learned Magistrate has passed the order rejecting the prayer under Section 156(3) of Cr.P.C. of respondent No. 1, but thereafter directed the police to investigate the facts mentioned in the application and report. This amounts to review of the same order which is not permissible under the criminal law. It is prayed that the order passed by the learned Magistrate on 7.12.10 be set aside. 3. The learned counsel for respondent No. 1 has supported the order. 4. This amounts to review of the same order which is not permissible under the criminal law. It is prayed that the order passed by the learned Magistrate on 7.12.10 be set aside. 3. The learned counsel for respondent No. 1 has supported the order. 4. In view of the submissions of the learned counsel for the parties, I have perused the record. 5. Annexure A/2, which is the copy of the application filed under Section 156(3) of Cr.P.C. by respondent No. 1-Rajkumar, reveals that it is alleged that his grand-mother Late Smt. Kausha @ Kaushalya had executed a will in favour of respondent No. 1, his brother Sant Kumar and Neetraj on 8.6.10. Prior to it, Late Smt. Kausa had executed two sale-deeds dated 18.4.96 and 23.7.99 in favour of Ramcharan, Laxmidevi and Smt. Bhagwati by affixing her thumb impression on the sale-deeds. After the death of Smt. Kausa, Laxminarayan, Ramlakhan and Bhanuprakash with the connivance of their relatives Bhagwan Singh, Ghanshyam and Ravindra Singh got executed a sale-deed in favour of Laxminarayan @ Billa, Ramlakhan and Bhanuprakash stated to be executed by Late Smt. Kausa. The complaint was filed by respondent No. 1 to SHO, Jaura, and S.P., Morena, but no action has been taken, therefore, this application has been filed praying that SHO, Jaura, be directed to register the FIR and investigate the matter. 6. The learned Magistrate vide order dated 7.12.10 rejected the prayer of respondent No. 1 holding that the case has been filed under Sections 467, 468, 471, 120-B of IPC and Section 467 of IPC is exclusively triable by the Court of Sessions, therefore, in view of proviso to Section 202(1) of Cr.P.C., it cannot be sent to police for investigation. It was directed that respondent No. 1 shall produce his entire evidence on the next date in support of the application and the case has been fixed for recording the evidence under Sections 200 and 202 of Cr.P.C., but later on, mentioning that learned counsel for respondent No. 1 has prayed that though his prayer for investigation has been turned down, however, report be called with regard to the allegations of forged will, SHO police Jaura has been directed to inquire the facts, get the documents examined by handwriting expert and file his report. 7. 7. The submission of learned counsel for the petitioner is that after the prayer for sending the application for investigation was rejected, subsequently allowing the same would amount to review of earlier order which is not permissible. 8. As noticed earlier, the learned Magistrate had rejected the prayer for investigating the matter by SHO, police Jaura, but later on allowed the prayer for investigation by the SHO, police Jaura. It certainly amounts to review of own order because once the learned Magistrate has rejected the prayer and fixed the case for recording the evidence under Sections 200 and 202 of Cr.P.C., the learned Magistrate cannot backtrack his order. The Hon'ble Apex Court in the case of Sunita Jain vs. Pawan Kumar Jain and others, (2008)1 SCC (Cri) 537 has held that no power of review has been conferred by the Criminal Procedure Code, 1973 on a criminal Court, therefore, it cannot review an order passed or judgment pronounced. In State of Punjab v. Davinder Pal Singh, 2012 Cri. L.J. 1001 similar view has been taken by the Hon'ble Apex Court. 9. The learned counsel for the petitioner placing reliance on the decision Balwant Singh Tomar Vs. Tigmanshu Dhulia, 2013(II) MPJR 205 , submitted that under Section 156 of Cr.P.C. the Magistrate must satisfy himself that the allegations contained in the complaint prima facie show some offence. From a bare reading of the order passed by the learned Magistrate, nowhere it reflects that he has gone through the allegations made in the application. It is surprising that the learned Magistrate after rejecting the prayer for sending the application for investigation, subsequently allowed the same. The learned Magistrate did not even bother to examine the allegations made in the application. Only on the prayer of the learned counsel for respondent No. 1, SHO, police Jaura has been directed to investigate the matter. It is well settled that every judicial/quasi judicial authority is required to pass a reasoned order. No reason has been given by the learned Magistrate why the prayer of learned counsel for respondent No. 1 has been allowed. The learned Magistrate ought to have assigned reasons, specially when he had already disallowed the prayer for investigation. The direction of the learned Magistrate without assigning any reasons shows that he mechanically passed the order. 10. Section 156(3) of Cr.P.C. empowers the Magistrate to order for investigation. The learned Magistrate ought to have assigned reasons, specially when he had already disallowed the prayer for investigation. The direction of the learned Magistrate without assigning any reasons shows that he mechanically passed the order. 10. Section 156(3) of Cr.P.C. empowers the Magistrate to order for investigation. This power has been conferred on the Magistrate to check the arbitrary action of the police in matters of registration of FIR of cognizable offence. However, under Section 156(3) of Cr.P.C. the Magistrate should not mechanically pass the order directing the police to investigate the case. The Magistrate is required to satisfy himself prima facie that the allegations contained in the complaint point to commission of cognizable offence. For ordering investigation by police under Section 156(3) of Cr.P.C., the Magistrate cannot act merely as post office. He is bound to apply his mind before doing so. In the instant case, admittedly no complaint was filed. The petitioner chose to file only an application under Section 156(3) of Cr.P.C. before the learned Magistrate. On a bare perusal of the application, it appears that two wills are alleged to have been executed by Late Smt. Kausa; first will is said to have been executed in favour of Rajkumar, Sant Kumar and Neetraj on 8.6.10, while the second will is alleged to have been executed in favour of Laxminarayan, Ramlakhan and Bhanuprakash. Which will is forged one, it has to be decided by the Civil Court. Unless the genuineness of a will is established, no party can agitate that a particular will is forged to initiate criminal proceeding. The Hon'ble Apex Court in the case of Thermax Limited and others v. K.M. Johny and others, (2011) 3 SCC 412 held that for proceeding under Section 156(3) of Cr.P.C., the complaint must disclose relevant material ingredients of cognizable offence. If there is flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. As noticed above, not only the learned Magistrate has reviewed its own order, which is not permissible under the criminal law, but has also passed the order mechanically directing the police to investigate the case. Hence, the order dated 7.12.10 passed by the learned ACJM, Jaura, deserves to be set aside. Consequently, the petition is allowed and the order dated 7.12.10 passed by the learned Magistrate is set aside.