Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 288 (ALL)

Shamshad Ahmad v. State of U. P.

2024-01-29

RAM MANOHAR NARAYAN MISHRA

body2024
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Heard Sri S.C. Singh, learned Senior Advocate assisted by Sri Manoj Kumar Singh, learned counsel for the revisionist, Sri M.J. Akhtar, learned counsel for the respondent No. 2 as well as learned A.G.A. for the State. 2. By means of instant criminal revision under Section 397/401 Cr.P.C. the revisionist has assailed the impugned order dated 27.6.2022, passed by learned Additional Chief Judicial Magistrate, Court No. 2, Muzaffar Nagar in Misc. Application No. 4911/09 of 2020, under Section 156(3) Cr.P.C. By the impugned order, learned Magistrate has dismissed the application filed by the applicant, who is revisionist, before this Court. 3. The factual matrix of the case leading to filing of present revision are that the applicant Samshad Ahmad moved an application under Section 156(3) Cr.P.C. before the court of Chief Judicial Magistrate, Muzaffar Nagar on 3.1.2020, stating therein that her father late Hazi Anwarul Haq had purchased two properties situated at Kasba Khatauli, District Muzaffar Nagar on 9.7.1982 and 13.9.1993, jointly with Ansar Khan, the opposite party and both of them occupied their respective shares in said properties. On 11.7.2007, Anwarul Haq, the father of the applicant died. The applicant became owner in possession of the share of his father in the said prosperties together with brothers namely Subhan Ali and others. Applicant and his brothers executed two separate sale deeds in the name of Salma Beg, wife of Azhar Beg and Azhar Beg, son of Asgar Beg with regard to their respective share in said property inherited from their father. The purchaser came into possession of said property after sale deed dated 19.9.2019. The applicant received a summon from trial court, from which he came to know that some civil suit has been filed by Ansar Khan against the applicant. The applicant visited the place of Ansar Khan on 24.9.2019, at 6:00 PM where he was present alongwith his two companions. The applicant tried to gather information regarding suit whereupon Ansar Khan became enraged and he abused them and showed him a photocopy of a forged Will deed and stated that he had got a forged Will deed prepared in the name of his father and on the strength of that, he would forcefully took possession of the property. The applicant tried to gather information regarding suit whereupon Ansar Khan became enraged and he abused them and showed him a photocopy of a forged Will deed and stated that he had got a forged Will deed prepared in the name of his father and on the strength of that, he would forcefully took possession of the property. The photocopy of Will deed dated 20.10.2005, is apparently false, forged and fictitious, which has been prepared by the opposite party Ansar Khan with the help of his unknown accomplishes, in which signature of Hazi Anwarul Haq and witness Salimuddin are completely forged. The Will has been prepared by opposite party only with intent to grab the said property. The applicant has filed a report of private handwriting and finger print expert, which reveals that admitted signature of the executant is not appended thereon. The Notary Public Jamiruddin, who is shown to have notarized the disputed Will has died around 6 years ago, the date of alleged Will deed. The said Will deed is a result of fraud committed by opposite party with assistance of his companions. There is no blood relation between late father of the applicant and opposite party. The applicant prayed for issuing direction to SHO concerned to register a case and investigate the same in his application under Section 156(3) Cr.P.C. 4. Learned ACJM, Court No. 1, Muzaffar Nagar, vide order dated 14.10.2020, directed the registration of the application as a complaint case in the light of pronouncement of a Division Bench of this Court in Sukhwasi vs. State of U.P., 2007 ACC 739 (DB) and fixed the case for recording of statement under Section 200 Cr.P.C. Feeling aggrieved by this order, the applicant filed a Criminal Revision before the court of Session, which was decided by learned Additional Session Judge, Court No. 1, Muzaffar Nagar on 19.1.2021 and impugned order dated 14.10.2020 was set aside and the lower court was directed to decide the application under Section 156(3) Cr.P.C. within one month in the light of legal position stated in the revisional order. Learned revisional court observed that the case law cited on behalf of the respondent No. 2 i.e. Smt. Sadhana Devi vs. State of U.P. 2007 (1) JIC 523 (All), Ram Gopal vs. State of U.P. 2011 (2) JIC 314 (All), Amar Pal Singh vs. State of U.P. 2002 (I) J.Cr.C. (HC) 241, Vinod Natesan vs. State of Kerala, 2019 (1) J.Cr.C. 235, Prof. R.K. Vijyasarthy vs. Sudha Seetharam, 2019 (1) J.Cr.C. 728, Rajesh Bhai Muljibhai Patel vs. State of Gujarat, 2020, (1) U.C., 609 are not applicable to the facts of the present case and observed that the disputed facts in the case could only be cleared and verified during investigation and on the facts of the case, the learned lower court has committed jurisdictional error while passing an impugned order and failed to exercise jurisdiction vested in it with regard to prayer made by the applicant. 5. Learned Magistrate, after receiving the certified copy of the order of Revisional Court, heard the applicant’s counsel afresh on Original Misc. Application under Section 156(3) Cr.P.C. and by order dated 3.3.2021, observed as under: “After going through the application, order of revisional court and the documents placed alongwith the application, I do not find any ground to direct the investigation under Section 156(3) Cr.P.C. Facts and circumstances of the present case although disclose commission of cognizable offence but in this case all the information and details are in the possession of the applicant and his witnesses. The applicant may move an application for the registration of FIR after civil court decision on disputed Will. Furthermore, if at any stage, the court thinks that investigation is required, the same may be referred under Section 202 Cr.P.C. and police assistance may be taken. It seems that the applicant wants to put pressure on the other side by registration of the FIR. This is so on account of the fact that once an FIR is registered, the other side namely, accused persons would be on the run because they will face an imminent threat of arrest and secondly, it becomes convenient for the complainant as well because it becomes a State case where the presence of the complainant is not required on each and every date of hearing. That is the modus operandi, which is invariably adopted and aimed at by the every applicant.” 6. That is the modus operandi, which is invariably adopted and aimed at by the every applicant.” 6. With above observation, the learned magistrate, has re-written the order set aside in criminal revision and directed the office clerk to register the case as complaint and complainant was directed to be present before the court on the date fixed for recording of his statement under Section 200 Cr.P.C. 7. The applicant again, feeling aggrieved by the impugned order dated 3.3.2021, passed by the learned Magistrate, preferred a criminal revision before the Court of Session, which was registered as Criminal Revision No. 84 of 2021, Samshad Ahmad vs. State of UP and Another, which was decided by the revisional court on 8.3.2022 and the revision was allowed and impugned order 3.3.2021 passed by a subordinate court was quashed. The revisional court directed the court below to hear afresh on application under Section 156(3) Cr.P.C. in the light of observations made in previous criminal revision No. 82 of 2020 on 19.1.2021, after giving opportunity of hearing to both parties and pass a lawful order thereon. Learned Revisional Court observed that the impugned order passed by the learned Magistrate dated 3.3.2021 was clear in violation of the observations of Additional Session Judge, in revisional order dated 19.1.2021, passed in Criminal Revision No. 82 of 2020. 8. Present respondent No. 2 filed a criminal revision before this Court against said order dated 8.3.2022 passed in Criminal Revision No. 84 of 2021, which is cited as Criminal Revision No. 1183 of 2022, Ansar Khan and Others vs. State of U.P. and Another. In said criminal revison, an apprehension was raised before this court by the revisionist’s counsel that in view of observations made by the court of Session in Criminal Revision No. 82 of 2020, decided on 19.1.2021, learned magistrate under circumpressure may pass some unjust judicial order to abrogate his misgivings as the reivsional court in second revision, vide order dated 8.3.2022, has directed the Magistrate for revisiting his order denovo in the light of certain guidance/guidelines given in previous criminal Revision No. 82 of 2020, decided on 19.1.2021. 9. 9. This Court decided the Criminal Revision No. 1183 of 2022, vide order dated 31.3.2022 with observation that “Learned Magistrate, concerned is hereby directed to apply his own independent judicial mind unaffected by any of the observations given by revisional court while deciding the Criminal Revision No. 84 of 2021 as well as earlier Revision No. 82 of 2020, and pass a suitable and well reasoned order, strictly adhering to his robust judicial sense and the law laid down in this regard within a period of 8 weeks from the production of certified copy of the order after hearing both the parties. 10. Learned Additional Chief Judicial Magistrate, Court No. 2, Muzaffar Nagar, revisited the issue afresh in the light of observations made by this Court in said Criminal Revision No. 1183 of 2022 and dismissed the application under Section 156(3) Cr.P.C. vide impugned order dated 27.6.2022, with observation that keeping in view the order passed by the Hon’ble High Court and considering the facts and circumstances, he is of conclusion that the matter is not liable to be investigated by the Police and it is essentially of civil nature and Original Suit No. 503 of 2019 is already pending in the Civil Court. The applicant is in possession of the relevant documents on the basis of which, the validity of the disputed Will can be decided by the civil court and in case of civil court comes to the conclusion that the disputed notarized Will deed is not a genuine document, due to the fact that according to the Notary Public, who is purported to have attested the Will deed, died six years prior to its execution, the applicant will have again an opportunity to register a criminal case. According to the opinion of learned ACJM, the matter is of not such nature that requires registration of a case and investigation by police, at this stage. The applicant has not clarified as to how, he is in possession of the said property covered under disputed Will whereas he has himself stated in the application that property in question has been sold to Azhar Beg and Salma Beg and the purchasers have acquired their possession thereof. The applicant has not clarified as to how, he is in possession of the said property covered under disputed Will whereas he has himself stated in the application that property in question has been sold to Azhar Beg and Salma Beg and the purchasers have acquired their possession thereof. The purchasers have not moved any complaint before competent officer in this regard and even the applicant has not moved any application for mutation in his name on property in question as a legal heir of the executant of the Will. Learned Magistrate placed reliance on the judgement of Hon’ble High Court in Prem Das vs. State of U.P. and Others, Matter Under Article 227 No. 1328 of 2021, wherein this Court observed as under: “16. It is therefore seen that upon an application received under Section 156(3) of the Code disclosing a cognizable offence, the Magistrate may direct the police to register the F.I.R. and investigate or alternatively the Magistrate can take cognizance of the complaint, register it as complaint case and follow the procedure under Chapter XV of the Code. While exercising this discretion and taking either of the courses, it would be incumbent upon the Magistrate to apply judicial mind and the exercise of discretion would have to be guided by interest of justice, depending upon the facts of the case. In a situation where the investigation required is of a nature which can only be made by a police officer upon whom the statute has conferred the powers of investigation, the Magistrate may be well within his discretion to direct the registration of an F.I.R. and its investigation by the police officer. In a case where the complainant is in possession of the complete details of the case and also the material evidence, such that ‘investigation’ by the police may not be required, the Magistrate may follow the procedure of a complaint case.” 11. Feeling aggrieved by the impugned order dated 27.6.2022, the applicant had filed present revision before this Court. 12. In a case where the complainant is in possession of the complete details of the case and also the material evidence, such that ‘investigation’ by the police may not be required, the Magistrate may follow the procedure of a complaint case.” 11. Feeling aggrieved by the impugned order dated 27.6.2022, the applicant had filed present revision before this Court. 12. Learned counsel for the revisionist submitted that the approach of learned Magistrate was contrary to the notion of judicial discipline as learned Magistrate has re-written his over ruled order dated 14.10.2020 in Criminal Revision No. 82 of 2020 and ignored the observations made by Court of Session in Criminal Revision No. 82 of 2020, decided on 19.202021 and by order dated 3.3.2021, this fact was addressed by the Court of Session in Criminal Revision No. 84 of 2021, wherein the Court of Session took strong exception to the approach of the court below while deciding the application afresh contrary to the observations made by revisional court. However, this Court in Criminal Revision No. 1183 of 2022, directed the Magistrate to decide the application afresh and pass a suitable, well reasoned order according to his judicial sense applying his own independent judicial mind unaffected by any of the observations given by the revisional court. 13. Learned counsel for the revisionist further submitted that the impugned order passed by learned court below is contrary to law and established judicial authority on the subject as civil and criminal proceeding, both can be maintainable in regard to same set of facts, if cognizable offence is clearly made out on the basis of facts of the case. Respondent No. 2, Ansar Khan, is owner of the property, which was jointly purchased by him and late Anwarul Hasan in the year 2007, till then there was co-ownership and there was no occasion of executing the Will in favour of the respondent No. 2, who is not related to him in any manner. The court below has twice passed the order to register the application under section 156(3) Cr.P.C. as a complaint case and finally dismissed the same after disposal of Criminal Appeal No. 1183 of 2022, by this Court. The Civil Suit No. 503 of 2019 has not been filed by the revisionist. The court below has twice passed the order to register the application under section 156(3) Cr.P.C. as a complaint case and finally dismissed the same after disposal of Criminal Appeal No. 1183 of 2022, by this Court. The Civil Suit No. 503 of 2019 has not been filed by the revisionist. This is filed by the opposite party No. 2 to fortify his illegal claim over disputed property on the basis of disputed notarized Will deed propounded by him, which is essentially fake and forged document with intent to engulf the parental property of the revisionist. The Notary Public Advocate, Jamiruddin, died on 17.1.1998, as per his death certificate filed by the revisionist in the lower court record. Whereas, the disputed Will deed bears its date of execution as 20.10.2005 and said death certificate cold not be rebutted by the respondent No. 2 as yet. Inasmuch as, the signature of Salimuddin as witness of said Will deed is also forged but this aspect has not been considered by the court below in proper perspective. The impugned order is not sustainable and is liable to be set aside by orders of this Court. 14. Per contra, learned AGA as well as learned counsel for the respondent No. 2 submitted that the impugned order is well reasoned order, in which all the attendant facts and circumstances are duly considered in the light of authoritative judicial precedents and even after passing of impugned order, whereby the application under Section 156(3) Cr.P.C. moved by the applicant has been dismissed, the applicant is within his right to file a criminal complaint in the matter. 15. Learned counsel for the respondent No. 2 further submitted that death certificate of Jamiruddin, Notary Public, who has attested the Will dated 20.10.2005 is not a genuine document as the place of death of Jamiruddin mentioned therein is recorded in the name of Smt. Roshan Ara, wife of Amir Ahmad. Present application under Section 156(3) Cr.P.C. was filed by the applicant after filing of said civil suit by respondent No. 2. 16. This is admitted fact that property in question was purchased by father of the revisionist and respondent No. 2 jointly, on 9.7.1982 and 13.9.1993 by two sale-deeds and the purchasers occupied their respective shares in said property. Present application under Section 156(3) Cr.P.C. was filed by the applicant after filing of said civil suit by respondent No. 2. 16. This is admitted fact that property in question was purchased by father of the revisionist and respondent No. 2 jointly, on 9.7.1982 and 13.9.1993 by two sale-deeds and the purchasers occupied their respective shares in said property. This is the case of the respondent No. 2 Ansar Khan that Hazi Anwarul Haq, father of the revisionist and joint purchaser of the said property executed a Will deed in favour of the respondent No. 2 on 20.10.2005, which is unregistered but it was notarized by one Jamiruddin, then Notary Public and the father of the revisionist namely, Hazi Anwarul Haq died on 11.4.2007 and there is no dispute regarding date of death of Hazi Anwarul Haq. According to the revisionist, he accompanied with his brothers became owner in possession of this share of said property. Revisionist and his brothers executed two separate sale deed in the name of Salma Beg, wife of Azhar Beg and Azhar Beg, son of Asgar Beg with regard to their respective share in said property inherited from their father. Respondent No. 2 has filed a civil suit for injunction on the basis of Will deed dated 20.10.2005 executed by Hazi Anwarul Haq in favour of Ansar Khan, the respondent No. 2. The genuineness of will is liable to be adjudicated by the civil court. However, this fact cannot lost sight that the revisionist has filed death certificate of Jamiruddin, the Notary Public, who attested the unregistered Will deed propounded by respondent No. 2 in his favour and according to the said death certificate, the date of death of Jamiruddin is mentioned as 17.1.1998, at House No. 786/1, Khalapar, whereas the date of execution of said Will date is shown as 20.10.2005, thus, according to the death certificate of said Notary Public, the genuineness of Will deed comes under cloud. This fact is also noticeable that no good ground could be shown by respondent No. 2 as to why the father of revisionist namely, Hazi Anwarul Haq, chose to bequeath his share of property in favour of co-sharer of property namely, Ansar Khan, excluding his own sons. There is no legal bar with regard to proceeding of civil and criminal case simultaneously on similar set of facts. There is no legal bar with regard to proceeding of civil and criminal case simultaneously on similar set of facts. The main consideration is that as to whether on facts of the case put forth before the court of first instance by the complainant, a cognizable offence is made out or not. The complaint was initally filed in the year 2020 and after lapse of more than 3 years period, the respondent No. 2 could not produce any document in rebuttal of death certificate of Notary Public namely, Jamiruddin, placed on record by the complainant/revisionist. The intricate facts of the case need to be investigated by the police as this is not of such nature that the complainant will be able to produce necessary documentary evidence in the case on his own. This court is not inclined to subscribe the view of the learned Magistrate that the matter is essentially of civil nature, where the allegations of fraud and forgery are made and some material is shown in support of the same, this should not be termed as a matter essentially of civil nature. In my considered opinion, learned court below has committed a legal error and impropriety by dismissing the application moved by the revisionist under Section 156(3) Cr.P.C. and impugned order is not sustainable under law. On facts of the case, the stand of the revisionist that matter is of such nature that it requires investigation by police under Section 156(3) Cr.P.C. appears to be forceful and reasonable and learned court below should have considered the case for issuing a direction to police to register the case and investigate the same. 17. In view of foregoing discussion, the revision stands allowed and the impugned order passed by learned court below is set aside and the matter is remitted to court below with direction to hear the revisionist/complainant afresh on application under Section 156(3) Cr.P.C. in the light of observation made in this order and decide the same in accordance with law.