Allahabad High Court
Jaini Singh & Anr. vs State Of U.P.Thru. Prin. Secy. Home & ... on 7 January, 2019
Bench: Ajai Lamba, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 9 Case :- MISC. BENCH No. - 36396 of 2018 Petitioner :- Jaini Singh & Anr. Respondent :- State Of U.P.Thru. Prin. Secy. Home & Ors. Counsel for Petitioner :- Vivek Raj Singh Counsel for Respondent :- Govt. Advocate,Ishan Baghel Hon'ble Ajai Lamba,J.
Hon'ble Karunesh Singh Pawar,J.
(Delivered by Hon'ble Karunesh Singh Pawar, J.)
1. Jaini Singh and Udayveer Singh accused of committing offence under Sections 471, 468, 467, 420 Indian Penal Code, Police Station Hazratganj, District Lucknow registered vide First Information Report No.681 dated 16.11.2018 have filed this petition for issuance of a writ in the nature of certiorari quashing the said criminal proceedings.
The impugned criminal proceeding has been initiated at the instance of Kunwar Mohit Singh s/o Kunwar Brijendra Singh.
2. We have heard Shri Vivek Raj Singh learned counsel for the petitioners, Shri S.P. Singh, learned counsel for the State and Shri I.B. Singh, learned Senior Advocate assisted by Shri Ishan Baghel, learned counsel for the Complainant.
We have carefully gone through the contents of the impugned first information report and the documents appended with the writ petition towards which our attention has been drawn.
3. Gist of the allegation in the impugned first information report is that so as to usurp ancestral property belonging to the complainant located at 9, Butler Road, Lucknow, Jaini Singh, Brijendra Singh @ Jamuni sons of Ratan Singh and Udayveer Singh son of Ram Charan have prepared forged documents. Mother and father of the complainant died a number of years back. So as to take advantage of their death, the above named accused through forged documents are making an attempt to usurp the property.
It has been alleged that the property 9, Butler Road, Lucknow was owned by Late Sardar Samsher Singh. Sardar Samsher Singh executed Will dated 26.06.1991 bequeathing the property in favour of the complainant, brother Kunvar Mohit Singh, and sister Ruchi Singh @ Rinki. Jaini Singh, however forged document dated 30.04.1996 bearing Succession Certificate No.348(8) Ra. No.02/96 purportedly issued by office of District Magistrate, Lucknow while relying on forged unregistered Will dated 25.11.1994.
It has been alleged that on the basis of these forged documents, the accused got the ancestral property defined as 9, Butler Road, Lucknow transferred in their names. When inquires were made through Right to Information Act in regard to Succession Certificate dated 30.04.1996 (supra), office of District Magistrate informed that it had never issued the said succession certificate.
4. In a nutshell, the allegation is in regard to forgery of will dated 25.11.1994 and Succession Certificate dated 30.04.1996, details of which have been given hereinabove.
5. Contention of learned counsel for the petitioners is that the Will is genuine and is the last Will and testament of Sardar Samesher Singh. It has further been argued that the succession certificate was never relied on by the petitioners before any authority and therefore, the basis of the impugned first information report is wrong. It has also been argued that in fact document dated 30.04.1996 is not a succession certificate and had not been forged by the accused. The impugned proceedings be quashed.
6. Shri I.B. Singh, learned Senior Advocate assisted by Shri Ishan Baghel, learned counsel, has vehemently argued that the Will is forged. Sardar Samsher Singh executed last Will and testament vide document dated 26.09.1991, which is a registered document. Sardar Samsher Singh was a Taluqadar and in accordance with Oudh Estates Act, 1869 the Will was duly registered and kept in the custody of District Magistrate, Lucknow.
Shri I. B. Singh has also argued that apparently Sardar Samsher Singh executed a number of Wills in the past. Being the Taluqadar and subject to Provisions of Oudh Estates Act, 1869 each of the Wills (prepared in English) was registered and kept with the District Magistrate. The Will in question of 25.11.1994 is not only inscribed in Hindi, but is also not a registered document. The testator died just three days after executing the purported will dated 25.11.1994. The circumstances themselves indicate suspicious nature surrounding the document.
It has been argued that in fact the petitioners have used Succession Certificate Dated 30.04.1996. In this regard, learned counsel has referred to document placed on record as Annexure - 3 appended with counter affidavit sworn by Kunwar Shobhit Singh dated 17.12.2018.
We have considered the nature of document Annexure - 3 filed with the counter affidavit. The document is an order passed by Civil Judge, Senior Division, Lucknow in Civil Suit No.928 of 2005 titled ''Kunwar Jaini Singh Vs. M/s Viraj Constructions Pvt. Ltd. & Ors.'
7. Shri I.B. Singh, has also referred to document Annexure-6 of C.A. which is a document issued by District Magistrate, Lucknow vide which the Executive Engineer, Anusandhan evam Niyojan Khand, Yojna Nagar, Lucknow informed the said authority that document dated 30.04.1996 had been verified. The concerned department has informed that the said certificate had never been issued, and it appears to be fabricated.
Copy of the said document (Annexure - 6) was also forwarded to the office of Chief Officer, Nagar Palika, Lucknow.
Consequently, it has been pleaded on behalf of the complainant that the document purported to be succession certificate of the property of Sardar Samsher Singh was used as valuable security.
8. On the second count Shri I.B. Singh has drawn attention of the Court towards two judicial verdicts. It has been pointed out that in regard to property of Sardar Samsher Singh, Civil Suit No.928 of 2005 was filed by petitioner Kunwar Jaini Singh against M/s Viraj Constructions and Others (including the Complainant). Application under Order 39, Rule 1 & 2 of C.P.C. was filed for interim injunction. The subject matter before the Court was not only the Will in question dated 25.11.1994 but also the earlier registered Will executed by Sardar Samsher Singh dated 26.06.1991.
It has been pointed out that the interim injunction application was dismissed vide detailed and reasoned order dated 18.01.2006. Apparently, FAFO No.105 of 2006 titled ''Kunwar Jaini Singh Vs. M/s. Viraj Constructions Pvt. Ltd was filed in challenge to order dated 18.01.2006. Even the FAFO was dismissed vide a reasoned order dated 31.01.2007 by a Division Bench.
It has been pointed out by Shri I.B. Singh, learned Senior Advocate, that all the facts and circumstances surrounding registered Will dated 26.06.1991 and unregistered Will dated 25.11.1994 were considered. The application for interim injunction was dismissed by the trial Court and the order was upheld by the appellate Court in the FAFO referred to above. Shri Singh has pointed out that the Courts below inter-alia have taken into account the following suspicious circumstances surrounding Will in question dated 25.11.1994 viz.
(a) The plaintiff relied on Will dated 25.11.1994. Only photocopy thereof, however has been produced. The original was not produced in the Court.
(b) The Will is not registered.
(c) Will dated 25.11.1994 is said to be executed only 3 days prior to his death and in this he has not disclosed his entire properties clearly, whereas will of 1991 is a registered will has been written in detail and further clear statement has been made to give or not to give the rights to all the heirs and full description of the property has been given.
(d) By way of Will dated 26.06.1991 Sardar Samsher Singh gave no right to the petitioner in the disputed property.
(e) The plaint has been filed by the petitioner on the basis of will dated 25.11.1994 which appears to be prima facie doubtdul for the reason that in this Will Sardar Samsher Singh has not referred to any of the earlier wills made by him, neither has cancelled his earlier wills.
(f) In the Will dated 25.11.1994 Sardar Samsher Singh has not discussed the sons of Kunwar Brijendra Singh whereas in the Will dated 26.06.1991 he has given the rights to the sons of Kunwar Brijendra Singh in the disputed property.
(g) No reason was assigned for not mentioning the name of sons of Kunwar Brijendra Singh in the will dated 25.11.1994 although Kunwar Brijendra Singh was the only son of Sardar Samsher Singh. On the other hand he has referred the names of children of his two daughters.
9. We have taken into account that a number of criminal cases have been filed. Will dated 26.06.1991 and Will dated 25.11.1994 are at issue in the said litigations.
Case Crime No.188 of 2017, under Sections 419, 420, 467, 468 and 471 Indian Penal Code, Police Station Kotwali Nagar, District Rae Bareli came to be challenged before this Court by way of filing Writ Petition No.7907 (MB) of 2017 titled ''Surendra Singh & Ors. Vs. State of U.P. & Ors.'. Genuineness of Will dated 25.11.1994 was at issue in the said first information report. The petition was disposed of vide order dated 24.07.2017 with a direction that S.S.P./S.P. concerned shall look into the matter and ensure that the investigation is completed, preferably within six weeks from the date of production of certified copy of the order.
This Court has been informed by Shri I.B. Singh, learned Senior Advocate that the investigation could not be concluded because the petitioner, who apparently was in possession of Will dated 25.11.1994, did not hand over the original Will to the investigating officer for its verification. Rather, the investigating officer was misled by saying that the Will is attached with some litigation.
10. It is in this backdrop of facts that we directed the petitioners to produce the original document. The original document has been produced before this Court which has been kept in a sealed cover under our directions.
11. The law of quashing first information report at this stage (without investigation) has been best summarized by the Hon'ble Supreme Court of India in State of Haryana and others vs. Ch. Bhajan Lal and others reported in AIR 1992 SC 604. The following (relevant portion) has been held :-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to and personal grudge."
12. Considering the totality of facts and circumstances emanating from the impugned first information report in context of the contention of learned counsel for the petitioners, learned counsel for the State and learned counsel for the complainant, we find that the case of the petitioners does not fall within any of the categories detailed by the Hon'ble Supreme Court of India in above extracted portion of the judgment.
Although ordinarily the Court would not refer to or rely on findings recorded by the Civil Court, while considering an issue on the criminal side, particularly findings recorded by Courts of law in interim applications, however since both the sides were party to the lis on the civil side and Will dated 25.11.1994 was in question, we have referred to, in a nutshell, the observations of the Courts in respect of the Will.
Surely, while accepting affidavits and counter affidavits Will dated 25.11.1994 cannot be held to be genuine, and not forged, in these proceedings. It is only through effective and scientific investigation and on consideration of related facts and circumstances, the investigating agency would be in a position to cull out the truth and file a police report in accordance with law.
Likewise, the purported Succession Certificate dated 30.04.1996 cannot be held to be genuine, particularly when the Court is faced with documents available on record and referred to in this order vide which office of District Magistrate, Lucknow has stated that the document had not been issued by District Magistrate, Lucknow. Under the circumstances, even the said document is required to be investigated in the course of investigation threadbare, including from the office of District Magistrate, Lucknow. The contention of Shri Vivek Raj Singh, Advocate to the effect that it is not a valuable security and had never been used cannot be accepted at this juncture, in view of nature of these proceedings and in view of the documents that have come on record of this case.
13. In view of the above, in the facts and circumstances of the case, this petition is hereby dismissed.
We hereby direct that the investigation be conducted by Superintendent of Police, (East) Lucknow, in view of the nature of the proceedings and because a number of cases have been filed in regard to the questioned document(s).
We direct the investigating officer to ensure that document dated 25.11.1994 is examined scientifically. Admitted signatures of Sardar Samsher Singh be obtained from independent sources and the signatures on the document dated 25.11.1994/questioned document be compared.
Likewise, it be investigated whether the Will was in fact executed by Sardar Samsher Singh, as per the pleaded case of the petitioners, or the typed material was inscribed on a paper, pre-signed by Sardar Samsher Singh.
14. The other first information reports/case crime numbers in which documents dated 26.06.1991, 25.11.1994 and 30.04.1996 are in question, be also investigated by the same investigating officer viz. Superintendent of Police, (East) Lucknow, in the interest of effective and practical investigation. The investigation be conducted at the earliest because considerable delay has already been caused.
15. We have handed over the original of the questioned document dated 25.11.1994 to learned counsel for the State Shri S.P. Singh in Court for onward transmission to the investigating officer.
16. Before parting with the order we make it clear that anything said in this order be not construed as finding of fact recorded by this Court. The documents, facts and circumstances have been considered only for the limited purpose of judging whether the impugned first information report is required to be quashed at this inceptive stage of investigation, or detailed investigation in the matter is required.
Order Date :- January, 7th 2019 R.C./Nishant