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2017 DIGILAW 1342 (HP)

Saroj Kumari v. Suresh Kumar

2017-12-05

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Through, the instant petition, constituted under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.), the petitioner prays, for quashing of summoning orders, of 28.09.2016, rendered in Case No. 430-1-2014, by, the learned Additional Chief Judicial Magistrate, Court No.1, Amb. 2. In the complaint lodged by one Suresh Kumar, therein penal ascriptions occur, vis-a-vis the accused named therein, qua theirs committing offences punishable under Sections 471, 468 and Section 109 of the IPC, comprised in theirs with inter se collusion, hence, abetting the preparation of the purportedly forged Will, of, the deceased testator concerned. The aforesaid complaint was instituted on 19.08.2014. 3. Be that as it may, prior thereto, the complainant one Suresh Kumar along with one Ashok Kumar, instituted a Civil Suit, before, the learned Civil Judge, Sr. Division, Amb, District Una, claiming therein rendition of a decree, for, declaration of both along with the defendants therein, being jointly entitled to succeed to the estate of deceased, one Gian Chand. An averment is borne in the apposite plaint, appended with the instant petition, as Annexure P-1/T, of, the aforesaid deceased Gian Chand dying ab intestato. In the written statement instituted thereto, copy whereof is appended with the instant petition, as Annexure P-2, a contention was raised, of, deceased Gian Chand, rather executing a testamentary disposition qua his entire estate vis-a-vis the legatee named therein. Since the validity, of, the testamentary disposition executed by deceased testator Gian Chand vis-a-vis the legatee named therein, is the subject matter of a lis in the apposite Civil Suit, thereupon, a contention is reared by the counsel for the petitioner, that, the continuation of the criminal complaint instituted, by co-plaintiff Suresh Kumar, against the accused named therein, would tantamount, (i) to abuse of process of law, (ii) besides upon its being permitted to be continued and a decision being recorded by the Criminal Court concerned, qua the allegations reared therein being valid, (iii) thereupon, it may therefrom beget renditions in conflict vis-a-vis the one as may ultimately emanate from the Civil Court concerned, (iv) besides may hence present the Civil Court concerned with a fait accompli, (v) especially upon the criminal Court, pronouncing a verdict prior, to a rendition being recorded, upon, the apposite civil suit, by the Civil Court concerned. Consequently, the learned counsel for the petitioner, prays, that the Civil Court alone is competent to pronounce, upon, the validity of the testamentary disposition, of, deceased testator Gian Chand AND subsequent thereto instituted complaint warrants its being quashed and set aside, it being an abuse of processes of law. 4. In making the aforesaid submission, the learned counsel, for the petitioner has placed reliance, upon a decision rendered by the Hon'ble Apex Court, in a case titled as Sardool Singh and another versus Smt. Nasib Kaur, 1987 (Supp) SCC 146, relevant paragraph No.2 whereof reads as under:- “2. A civil suit between the parties is pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellants is that a Will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and nearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High court, and quash the criminal proceedings pending in the court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts. He submits that when therein, the Hon'ble Court, was engaged with a factual scenario besides with the pronouncement made therein, specifically appertaining, to, (i) an eventuality, of, the Civil Court concerned, being beset, upon, determining the validity of executions of the testamentary disposition of the testator concerned, (ii) thereupon, in consonance therewith ANY continuation, of criminal proceedings against the accused, for, theirs purportedly fabricating the apposite testamentary disposition, in respect of validity whereof, civil proceedings are yet pending, being both impermissible besides invalid. 5. However, the aforesaid submission addressed before this Court, is, controvered by the learned counsel appearing for the respondent/complainant, by his placing reliance, upon, a decision rendered by the Constitution Bench, of, the Hon'ble Apex Court in a case titled as M.S. Sherif and another versus State of Madras and others, AIR 1954 S.C. 397 , the relevant paragraphs No.14, 15 and 16 whereof stand extracted hereinafter:- “14. We were informed at the hearing that two further sets of proceedings arising out of the same facts are now, pending against the appellants. One is two civil suits for damages for wrongful confinement. The other, is two criminal prosecutions under Section 344, I.PC., for wrongful confinement, one against each Sub-Inspector. It was said that the simultaneous prosecution of these, matters will embarrass the accused. But after the hearing of the appeal we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready, as the High Court records were not available on the application of the accused As these prosecutions are not pending at the moment, the objection regarding them does not arise but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed. 15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. We have therefore to determine which should be stayed. 15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule ban be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. 16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so hear its end as to make it inexpedient to stay it in order to give precedence to a prosecution order of under section 476. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so hear its end as to make it inexpedient to stay it in order to give precedence to a prosecution order of under section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.” (p--399) The visible guiding underscoring existing therein, qua the permissibility of staying of criminal proceedings against the accused, appertaining to causes of action or a subject matter, in respect whereof Civil proceedings, ARE also reared by the aggrieved concerned, ARE (a) likelihood of embarrassment of the accused in criminal proceedings' (b) when civil and criminal proceedings occur in contemporaneity, precedence being given to criminal proceedings; (c) the possibility of conflicting decisions being rendered by Civil and Criminal Courts concerned; (d) demand of public interest, that, criminal justice should be swift and sure; (e) that, the guilty should be punished, while, the events are still fresh in public mind AND it being undesirable, to let things slide till memories have been grown, too dim, to trust. 6. 6. Bearing in mind, the aforesaid principles encapsulated in the afore extracted relevant paragraphs of the verdict rendered by the Hon'ble Constitution Bench, of the Apex Court, in Sheriff's case (supra), (i) obviously with its ensuing, from a Bench strength, holding, a Bench strength of Hon'ble Judges, numerically higher vis-a-vis the Bench strength, of, Hon'ble Judges, which rendered the verdict in Sardool Singh's case supra, relied upon by the learned counsel for the petitioner herein, thereupon, (ii) with the verdict rendered by the Constitution Bench, of, the Hon'ble Apex Court, remaining, visibly not considered by the Bench of the Hon'ble Apex Court, which delivered a verdict in Sardool Singh's case (supra), (iii) whereas, a catena of judicial verdicts rendered by the Hon'ble Apex Court, expostulating, of (iv) judicial propriety desiring, of, previous verdicts rendered by a Bench of the Hon'ble Apex Court, holding, a Bench strength, of, Hon'ble Judges, numerically higher vis-a-vis the Bench strength, of, Hon'ble Judges of the Apex Court, rendering a verdict subsequent thereto, being binding upon the latter bench strength, of, Hon'ble Judges of the Hon'ble Apex Court, holding, a Bench strength, of, Hon'ble Judges of the Hon'ble Apex Court, lesser in numerical strength vis-a-vis the Bench strength, of, Hon'ble Judges, of the Hon'ble Apex Court, which rendered the earlier binding verdict, in Sheriff's case (supra), (v) Thereupon the verdict rendered by the Hon'ble Constitution Bench, of, the Hon'ble Apex Court, hence holds both binding clout AND sway vis-a-vis the extant appertaining therewith conundrum, (vi) even though, the issue engaging the Hon'ble Apex Court, in Sardool's case (supra), directly appertains, to the issue at hand, yet with the earlier binding verdict rendered, by the Constitution Bench of the Hon'ble Apex Court in Sheriff's case (supra), wherein, stand expostulated, the binding principles, enjoined to be borne in mind, by Courts of law, in making determinations, with respect to the validity of continuation of criminal proceedings, holding therein, a subject matter in respect whereof civil proceedings, are in progress in simultaneity, thereof hence, obviously warrants deference, being meted thereto. 7. 7. Be that as it may, with grave allegations being ventilated in the criminal complaint, instituted by co-plaintiff one Suresh Kumar, vis-a-vis the validity, of the testamentary disposition, executed, by one Gian Chand and when amongst the accused named therein, are marginal witnesses thereto, (i) thereupon, the mere fact, of, a civil suit pending before the Civil Court concerned, wherein, the issue appertains vis-a-vis the validity of, an alike, therewith testamentary disposition, besides is alike therewith qua its being or not fabricated, by the accused named in the criminal complaint, arrayed as defendants therein, (ii) does not, preclude this Court, to order for proceedings in the complaint, being permitted to continue in simultaneity therewith. Also continuation, of proceedings in the complaint, in contemporaneity, with, proceedings in the civil suit, would not beget any entailment, of, any embarrassment, of, the accused named therein, (iii) especially, when at this stage, there is no cogent evidence of the allegations reared, in the complaint being untenable or being devoid of any merits or theirs being raised frivolously. Contrarily, the handwriting expert concerned, after, making the apt comparisons, of the admitted signatures of the deceased testator, with, the latter's disputed signatures, occurring, upon, his testamentary disposition, would pronounce, upon, the validity of the allegations, reared by the complainant, (iv) thereupon, rather when renditions, of, opinions by the expert concerned, may also be binding upon the Civil Court concerned, for its making a pronouncement, with respect to the validity of execution, of, the testamentary disposition, of, one Gian Chand, (iv) thereupon, there would, not be, any occasion, of, conflicting decisions being recorded, upon, the relevant factum probandum, by, the Criminal Court AND by the Civil Court, given both subject to just exceptions, being enjoined to revere the opinion, of, the expert concerned, opinion whereof comprises, the best evidence, for resting the controversies, qua validity or invalidity, of the apt testamentary disposition. Reiteratedly, when the handwriting expert concerned, on, making comparisons of the relevant disputed signatures, with, relevant admitted signatures, of the deceased testator, would, opine upon the trite fact, of the relevant testamentary disposition being or not forged, (v) thereupon, hence, the aforesaid endeavour, ought not to be frustrated, merely, on the ground, of, the accused being purportedly embarrassed, rather, any baulking of criminal proceedings, would frustrate, the accused named in the criminal complaint, being punished, upon, the apposite best evidence being purveyed by the handwriting expert, (vi) elicitations whereof from him, are, yet not existing on record, thereupon, also for resting the entire issue, the apt elicitation from him are imperative, dehors simultaneous continuation of both civil and criminal proceedings, significantly when apt terminations whereof would be dependent upon his opinion. 8. Upon an incisive scrutiny, of, the relevant case law, the only exception vis-a-vis there being, no bar against simultaneity, of, occurrence of criminal proceedings AND, of, civil proceedings IS (i) verdicts recorded by the Civil Court concerned, upon, titles AND entitlements, of, the concerned qua properties of any genre being binding upon criminal courts, (ii) AND continuation of criminal proceedings qua alike therewith subject matter or qua titles or entitlements vis-a-vis all properties, of, any genre being impermissible, till, a clinching conclusive verdict, emanates, from the Apex Court. (ii) Conspicuously, when verdicts, of, civil Courts qua titles or entitlements vis-a-vis properties of any genre, emanate, prior to commencement of criminal proceedings AND before their termination. 9. For the foregoing reasons, there is no merit in the instant petition and it is dismissed accordingly. In sequel, the order impugned before this Court is maintained and affirmed. All pending applications are also dismissed. No costs. Records be sent back. 10. The Registry is directed to within one week circulate copies, of, this verdict, to all subordinate Courts and report compliance to this Court.