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2015 DIGILAW 2260 (BOM)

Laxman v. State of Maharashtra

2015-10-01

A.B.CHAUDHARI, INDIRA K.JAIN

body2015
Order 1] Heard learned counsel for the parties. Rule. Rule is made returnable forthwith and the application is taken up for hearing with the consent of learned counsel appearing for the parties. 2] Leave to amend is granted to challenge the order dated 24.11.2011 passed by Judicial Magistrate, First Class, Patoda, in Misc. Criminal Application No.206/2011. Amendment be carried out forthwith. 3] Following are the prayers in this application :- “C] The impugned F.I.R. Bearing No.193/2011 dated 26.11.2011 registered at Police Station, Patoda u/s 405, 406, 415, 465, 466, 468, 471, 420 r/w 34 of Indian Penal Code may kindly be quashed and set aside. C1] The chargesheet filed in R.C.C.No.66/2014 and R.C.C. No.66/2014 pending before J.M.F.C., Patoda may kindly be quashed and set aside. 4] There is a challenge to the F.I.R.No.193/2011 dated 26.11.2011 that was registered pursuant to the order dated 24.11.2011 passed by the Judicial Magistrate, First Class, Patoda, ordering investigation u/s 156(3) of the Code of Criminal Procedure, 1973 and criminal case – R.C.C.No.66/2014 on the file of the Judicial Magistrate, First Class, Patoda, as a consequence. The said order dated 24.11.2011 was put to challenge in Criminal Revision Petition No.111/2011, which was decided on 15.6.2012 by the Sessions Judge, Beed, who had set aside the order dated 24.11.2011 u/s 156(3) of the Code of Criminal Procedure, 1973, on the principal ground that the complaint could be filed in writing by the public servant as contemplated by Section 195 of the Code of Criminal Procedure, 1973 and not otherwise. The said revisional order was put to challenge before this Court in Criminal Writ Petition No.611/2012 and the learned Single Judge of this Court, by judgment and order dated 25.4.2013 held that the order u/s 156(3) of the Code of Criminal Procedure, 1973, was not revisable and, therefore, the revisional order was set aside with liberty to the present applicants to adopt such remedies as are permissible in law. It is in this background, the present application came to be filed before the Division Bench. It is in this background, the present application came to be filed before the Division Bench. 5] The question raised by the learned counsel for the respondent no.3 before us is that the criminal case filed by the respondent no.3 – Govardhan was required to be tried and the alleged bar u/s 195(1)(b)(ii) of the Code of Criminal Procedure, 1973, in the light of the Constitution Bench judgment of the Supreme Court in the case of Iqbal Singh Marwah & another v. Meenakshi Marwah & another reported at 2005 ALL MR (Cri) 1326 (SC) cannot come in the way of the respondent no.3. He, therefore, submitted that the interference need not be made in the present matter. 6] The learned counsel for the applicants per contra vehemently submitted that the civil litigation between the parties is admittedly pending before the Civil Court in relation to the same subject matter, which is the subject matter in the criminal application filed by the respondent no.3 – Govardhan and it is for the Civil Court to consider and record the finding whether the alleged documents were forged or not and unless until the same is done, holding of parallel trial is not contemplated. 7] We have heard the learned counsel for the rival parties. We have perused the Constitution Bench judgment of the Surpeme Court in the case of Iqbal Singh Marwah & another v. Meenakshi Marwah & another reported at 2005 ALL MR (Cri) 1326 (SC). The said Constitution Bench judgment was delivered in view of the conflict of opinion between the two decisions of the Supreme Court as stated by the Apex Court in paragraph no.2 of the judgment. We quote paragraph no.2 of the said judgment as under:- “2. In view of conflict of opinion between two decisions of this Court each rendered by a bench of three learned Judges in Surjit Singh Vs. Balbir Singh, 1996(3) SCC 533 and Sachida Nand Singh Vs. State of Bihar, 1998(2) SCC 493 , regarding interpretation of Section 195(i)(b)(ii) of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.', this appeal has been placed before the present Bench.” The question that arose before the Constitution Bench is stated in paragraph no.5 of the said judgment. We quote relevant portion of paragraph no.5 as under:- “5. State of Bihar, 1998(2) SCC 493 , regarding interpretation of Section 195(i)(b)(ii) of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.', this appeal has been placed before the present Bench.” The question that arose before the Constitution Bench is stated in paragraph no.5 of the said judgment. We quote relevant portion of paragraph no.5 as under:- “5. The principal controversy revolves round the interpretation of the expression 'when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court' occurring in clause (b)(ii) of subsection (1) of Section 195, Cr.P.C. ….. ….... …....” The Constitution Bench finally answered the controversy in paragraph no.25 of the judgment as under:- “25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii), Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document as in custodia legis.” Thus, the said judgment of the Constitution Bench of the Apex Court is on the point as to when the bar would be attracted under Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973. We have no manner of doubt that the said judgment of the Constitution Bench holds the field and must be followed. 8] In the instant case, however, the question is as to whether a criminal case should be allowed to be parallely prosecuted by the respondent no.3 – Govardhan when the civil dispute between the same parties in the form of suits is pending before the civil Court, particularly in respect of the same documents which are alleged to have been forged or in respect of which the criminal case has been filed. It is admitted fact that as yet the civil Court has not recorded any finding either way in respect of the said documents about which the respondent no.3 is making grievance of fraud and forgery namely the documents of partition. It is admitted fact that as yet the civil Court has not recorded any finding either way in respect of the said documents about which the respondent no.3 is making grievance of fraud and forgery namely the documents of partition. It is also not in dispute that the said documents of partition in respect of which forgery or fraud has been alleged are the subject matter falling squarely for consideration in the civil suits before the civil Court. 9] We, therefore, think that allowing the parallel criminal proceedings to continue in absence of any decision of the civil Court on the same issue about the documents of partition whether they are true or forged would tantamount to abuse of process of criminal Court. It would be duplication of the proceedings in respect of the same subject matter and as a matter of fact, it should be the civil Court which should record a finding as to the fraud or forgery or truthfulness about the documents of partition and it is only thereafter the respondent no.3 could be allowed to prosecute parallel criminal case. If the criminal case is allowed to be prosecuted and a civil case remains pending, there is likelihood of conflicting and contradictory findings. Therefore, in our opinion, since the issues regarding the documents of partition etc. are directly and substantially involved in the civil suits, we should not permit the prosecution of the parallel criminal case and it will amount to abuse of process of law. In our opinion, it is premature to have a chargesheet in the same subject matter and we cannot countenance such a move on the part of the respondent no.3 to set the criminal law in motion. We are, therefore, of the opinion that it is only after the civil Court records the finding, the complainant should be given liberty to take such steps as are available in law, but he should not be allowed to use the criminal law justice system as the civil Court is yet to adjudicate. We thus find that the aforesaid Constitution Bench judgment would have no applicability in the facts of the present case and for the reasons given by us above. 10] Resultantly, we make the Rule absolute in terms of prayer clauses [C] and [C1] and dispose of the criminal application. We thus find that the aforesaid Constitution Bench judgment would have no applicability in the facts of the present case and for the reasons given by us above. 10] Resultantly, we make the Rule absolute in terms of prayer clauses [C] and [C1] and dispose of the criminal application. Liberty is reserved in favour of the respondent no.3 – complainant that in case the occasion arises, he would be entitled to take such steps as are available in law after the Civil Court records its findings and decides the civil case. There shall be no order as to costs.