Rajasthan High Court - Jaipur
Bhagwan Sahai &Anr; vs Manoj Kumar &Ors; on 5 May, 2016
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B.CIVIL WRIT PETITION NO.4014/2015 (Bhagwan Sahai & Anr. Vs. Manoj Kumar & Ors.) Date of Order ::::: 05.05.2016 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.Ram Rakh Sharma, for the petitioners. Mr.Ritesh Jain, for the respondents.
REPORTABLE The plaintiff-petitioners have filed this Civil Writ Petition under Article 226 read with Article 227 of the Constitution of India against the order dated 12.02.2015 passed by the Additional District Judge, Dausa in Civil Suit No.57/2013 whereby the learned trial Court disposed of the application filed by the IO/SHO Police Station Sadar, Dausa with an observation that permission may be sought from Hon'ble Rajasthan High Court whether the original Will dated 12.09.2013 is to be handed over or not to IO/SHO for its examination by FSL.
Brief relevant facts for the disposal of this petition are that Civil Suit No.57/2013 was filed by the plaintiff-petitioners before District Judge, Dausa on 17.10.2013 for declaration and permanent injunction with averments amongst others that late Shri Damodar Das executed a will dated 12.09.2013 in favour of plaintiff-petitioners and some of the defendants. The original will was filed by them in the Court. Some of the respondent-defendants filed written statement and counter claim and alleged interalia that will dated 12.09.2013 is forged and fabricated and it does not bear signature of late Shri Damodar Das. FIR No.144/2014 for offences under Sections 420, 467, 468, 471 read with Section 120-B IPC came to be registered on 26.3.2014 at Police Station Sadar, Dausa against petitioners at the instance of respondent-defendant-Shri Manoj Kumar with the allegation that will dated 12.09.2013 filed by the petitioners in the aforesaid suit is a forged and fabricated document and on the basis of this FIR investigation commenced. During the course of investigation IO/SHO of the case filed application before the Court below in which the aforesaid suit is presently pending with a prayer to hand over the disputed will to him so that it can be examined by FSL to ascertain whether it is forged and fabricated or not. The petitioners filed reply to the application and prayer made by the IO was opposed by saying that police has no right to investigate the genuineness of the will as it is now subject matter of a civil suit and issue of its genuineness can be decided by the Civil Court in which the suit is pending. It was also averred that police has no right to seek possession of the disputed document even for the purpose of examination by FSL. Learned trial Court after hearing both the parties disposed of the aforesaid application with the observation that permission may be sought from High Court whether the will is to be handed over to IO for examination by FSL or not. Learned trial Court for its observation relied upon Rule 181 of General Rules (Civil), 1986.
Assailing the impugned order, learned counsel for the petitioners submitted that infact the IO/SHO filed the aforesaid application under Section 91 Cr.P.C. which empowers him to issue a written order a person to produce a document before him for the purpose of investigation etc. but no such direction under Section 91 Cr.P.C. can be given by IO/SHO to a Court to hand over a document in its possession by the simple reason that the term "person" used in this provision does not include a Court and otherwise also IO/SHO has no power/jurisdiction to direct a Court to produce such a document before him even for the purpose of investigation including examination of it by FSL but learned trial Court without considering the provisions of Section 91 Cr.P.C. has ordered that permission may be sought from High Court for handing over the will in dispute to IO for its examination by FSL. It was further submitted that when the will in dispute is subject matter of aforesaid civil suit, the issue of its genuineness can be determined by the Civil Court in which the suit is pending and for that reason also the will cannot be handed over to investigating agency for FSL examination. It was also submitted that when the will in dispute is now part of Court's record, as per Section 195 Cr.P.C., cognizance can be taken for offence of forgery only on the basis of a complaint made by the Court and, therefore, police has no jurisdiction to investigate about its genuineness. It was also submitted that even if it is admitted that the will in dispute can be handed over to IO for its examination by FSL even then the correct procedure is that application is to be made to the Criminal Court and if the Criminal Court is satisfied that it is necessary to examine its genuineness then a requisition is to be sent by that Court to the Court in which the document is lying and only on such requisition the document can be handed over to investigating officer for investigation purpose, but in the present case the aforesaid procedure has also not been followed by the learned Court below.
In support of his submissions, learned counsel for the petitioners relied upon the cases of Mahant Deepak Swami Vs. Additional District & Sessions Judge (Fast Track) No.5, Jaipur City, Jaipur reported in 2005 (6) RDD 1924 (Raj.) (DB), Nathu Lal & Anr. Vs. Roormal & Ors. (DB Civil Writ Petition No.1228/85), M/s S.N.Kapoor Exports & Ors. Vs. M/s Saraswat Exports & Ors. reported in 2008 (5) WLC (Raj.) 480 and Malaram Vs. State of Rajasthan & Anr. reported in 2013 (1) WLC (Raj.) 225. On the other hand, it was submitted by the learned counsel for the respondents that on requisition being made by the trial Court, Hon'ble High Court permitted it to hand over the will in dispute to investigating officer and it has already been examined by FSL and original will has been returned to the trial Court and, therefore, this writ petition has become infructuous and is liable to be dismissed on this ground only.
In rejoinder, learned counsel for the petitioners submitted that if this Court comes to a conclusion that the will in dispute has wrongly been handed over for examination by FSL, the report will carry no evidentiary value and it cannot be used for any purpose and, therefore, issue raised in this petition is required to be decided on merit by this Court.
I have considered the submissions made on behalf of the respective parties and perused the material made available on record and the relevant legal provisions and the case law. I feel that the petition raises an important question of law which the subordinate Courts face each day and therefore, it requires serious consideration by this Court and the petition is to be decided on merit despite the fact that genuineness of document in dispute has already been examined by FSL.
First of all, it is to be seen if a forged and fabricated document has been filed in a Court of law, cognizance cannot be taken by any Court unless a complaint is filed by the Court where the document has been produced in view of Section 195 and 340 of Cr.P.C. and police has no jurisdiction to investigate about its genuineness as no useful purpose will be served by continuing with the investigation.
The issue so raised has now been finally settled by a Constitution Bench of Five Judges of Hon'ble Supreme Court in the case of Iqbal Singh Marwah and another V. Meenaksi Marwah and another reported in 2005 Cr.L.J.2161. It has been held by the Hon'ble Court that 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 was in a custodia legis. It was held that the broad view that even if a document already forged is subsequently produced in Court, a complaint of Court would be necessary would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded.
It means that if a document was forged or fabricated before it was produced in a Court, complaint by that Court is not necessary and cognizance can be taken for such an offence under Section 190 Cr.P.C. and police is entitled to undertake investigation about the genuineness of such document and, therefore, Court cannot refuse to hand over such document to police merely on the ground that no useful purpose would be served to undertake investigation as cognizance cannot be taken by any Court unless complaint is filed by that Court.
In view of the above, contention raised on behalf of the petitioners is legally not tenable and the view expressed by Division Bench of the Rajasthan High Court in the case of Nathulal and another Vs. Rudmal & others (D.B.Civil Writ Petition No.1228/19852, date of order 6.11.1987) stands overruled by Hon'ble Supreme Court.
Now, it is to be seen whether Section 91 Cr.P.C. bars handing over of a document in possession of a Court to a police officer for investigation including examination of its genuineness by FSL. Section 91 of Cr.P.C. is quoted hereinbelow for ready reference:
91. Summons to produce document or other thing.
(1)Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
A Division Bench of our High Court in the case of Mahant Deepak Swami Vs. Addl.Distt. & Sessions Judge, (Fast Track) No.5, Jaipur City, Jaipur reported in 2005 (6) RRD 1924 (Raj.) (DB) has held that:
"A reading of Section 91, Cr.P.C, shows that an officer of the police is to give a written order to the person in whose possession or power a document or a thing is believed to be, requiring him to produce it. Admittedly, the document in question presently is in possession of the Court trying the civil suit. If the literal meaning is given to the language of Section 91, Cr.P.C, then the police officer investigating a case will have to make an order for production of the document. If the literal meaning is given to the make an order for production of the document. If this aspect is considered to be imperative, then it would mean that this section authorises the police officer to issue an order to a Court. In our considered opinion, such powers cannot be conceived to be vested in a police officer under Section 91, Cr.P.C. It cannot be said that an officer of the police station has been vested with powers to issue orders to a Court. Reliance has placed by the learned counsel for the appellant on the provision of Section 91 , CrPC, appears to be misplaced.
Summons/orders under Section 91, Cr.P.C., is meant to be issued to a person. The Court cannot be construed to be a person. Police officer issuing orders cannot be construed to be an officer competent to issue any such orders to a Court, for production of any document. The argument of the learned counsel for the appellant is not an argument in consonance with the language used in Section 91 Cr.P.C. If police can be seen to be empowered to issue orders to a Court, it will lead to a situation which cannot be appreciated. The powers under Section 91 Cr.P.C. has to be exercised in the manner prescribed only and not otherwise. That means police is empowered to issue orders for production. No orders ca be issued to a Court by a police official. Summons can only be issued by Court. Thus, in this case, recourse to Section 91 Cr.P.C. is not available."
Even if it is admitted that in the light of the view expressed by the Division Bench of this Court provisions of Section 91 Cr.P.C. cannot be invoked for handing over a document in possession of a Court as police officer cannot give a written order to the Court, even then I am of the considered view that the investigating officer during investigation of a case can make a request to the Court to hand over the document in its possession for investigation purposes. Under Chapter XII of Cr.P.C., police has wide power of investigation and I am of the view that in exercise of that power, an investigating officer can request the Court also to hand over him a document alleged to be forged for getting it examined by FSL. If the investigating officer does not have such power, then it would be very easy and convenient for a person to file frivoulous case in a Court and also file the forged document in the Court and prevent the investigating agency to undertake investigation regarding such forged document. Although under Section 91 Cr.P.C., police cannot aske an accused to produce a document in his possession but police having wide power of investigation, during investigation can request Court to hand over the document which is in its possession. The process of criminal law cannot be scuttled and the document alleged to be forged is required to be given to the investigating agency for investigation.
Now, it is to be considered whether demand of a document by a police officer from a Court which was produced in it by accused and which is presently in the possession of the Court contravenes the fundamental right conferred upon the accused under clause (3) of Article 20 of the Constitution of India. This provision provides that no person accused of any offence shall be compelled to be a witness against himself.
In the written statement filed in the present case it is alleged that the will dated 12.9.2013 is forged and fabricated and it does not bear signature of late Shri Damodar Das. Similarly, in the FIR the allegation is that the aforesaid will dated 12.9.2013 filed by the petitioners in the civil suit is a forged and fabricated document.
For the applicability of Article 20 (3), one of the essential ingredient is compulsion to the accused but when the accused himself voluntarily parted with the possession of the document and tendered it in the Court in support of his claim made in the case, no question of compulsion to the accused arises within the meaning of this provision if the investigating officer request the Court to hand over the document to him for investigation purposes. After document has been produced in the Court, accused has lost his possession and control over it and it is now in the custody of the Court and the accused cannot cannot claim that it is still in his possession.
In the present case, as the petitioners themselves have already filed the will in dispute in the civil suit filed by them in the Court below, they cannot say that if the same is handed over to investigating officer for investigation it will contravene their right as conferred by Article 20 (3) of the Constitution of India.
The majority view in the case of State of Bombay Vs Kathi Kalu reported in AIR 1961 SC 1808 (1) is that "to be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an inquiry or investigation. It was further held that the prohibition in Clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document, which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the' Court to produce that document in accordance. with the provisions of Section 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he his given his statements in Court otherwise than by reference to the contents of the documents. It was also held that Clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge.
In the present case the allegation is that the will dated 12.9.2013 said to be executed by late Shri Damodar Das is a forged and fabricated document. It is nobody's case that it contains any statement of petitioners which is based on their personal knowledge and therefore, in view of the principle of law laid down by the Hon'ble Supreme Court in the aforesaid case, it cannot be said that if the Court hands over possession of will in dispute to police, the same would contravene their right as conferred under clause (3) of Article 20 of the Constitution.
In the case of V.S.Kuttain Pillai Vs. Ramakrishnan & another reported in (1980) 1 SCC 264, Hon'ble Supreme Court has held that if a general search warrant is issued by the Court under Clause (c) of Section 93 Cr.P.C., in execution thereof even the premises in possession of an accused may be searched and documents found therein may be seized, even though they might contain statements of the accused which might incriminate him. It was held that such search or seizure of the document executed by the accused or containing self incriminating statements does not contravene Article 20 (3) for the reason that by the issue of a general search warrant the accused or any person is not compelled to produce incriminating evidence. In the same way request for a document in the possession of a Court even if incriminating to the accused, it cannot be said that he was compelled to produce it.
In this case the learned trial Court relying upon Rule 181 of General Rules (Civil) 1986 sought permission of the High Court to hand over the will in dispute to the Investigating Officer and, therefore, it is to be seen whether such permission may be sought under the aforesaid rule. This rule provides that:
Prohibition against issue of records.- Ordinarily no record shall be issued execept on the requisition of a Civil, Criminal or Revenue Court, of a Tribunal of the Government, of the Board of Revenue, of Commissioner of Excise and of the Inspector General of Registration and Stamps, and then only on an order of the presiding officer. In all other cases, before a record is issued the orders of the High Court shall be taken on the subject.
In the case of Borilal @ Bodilal Vs. State of Rajasthan reported in 2006 (1) Cr.L.J.(Raj.) 549, learned Single Bench of this High Court taking in view the provisions of Rule 181 of the General Rule (Civil) 1986 directed the Court below to hand over the original copy of the agreement which was submitted in the Civil Suit to the police after keeping a certified copy of the said document. It was further directed that the police would keep the said document in safe custody and to produce it before the Civil or Criminal Court as and when asked for. Learned Single Bench has opined that when the agreement in dispute has been alleged to be a forged document it is imperative that FSL report be sought about its genuineness as in the absence of the FSL report the prosecution case would be weekened.
Similarly, in the case of Sushila Vyas Vs. State of Rajasthan reported in 2013 (1) Cr.L.R. (Raj.) 262, Chindar Singh Vs. State of Rajasthan reported in 2013 (1) Cr.L.R. (Raj.) 265 and State of Rajasthan Vs. Jagdish Suthar & Ors. reported in 2013 (1) Cr.L.R. (Raj.) 519, relying on the aforesaid rule it was directed that the Civil Court to keep a certified copy of the document in dispute and hand over the original document to the investigating agency for FSL examination. It was observed that when there is a specific allegation that the accused has forged the document in question and has filed it in the Civil Court the original document has to be analyzed by the hand writing expert and the comparison of the signatures and thumb impression has to be done by the expert in order to secure the ends of justice and in order to ensure a fair and proper investigation.
Similar view has also been taken in the case of Vina Devi Vs. State of Rajasthan reported in 2012 (4) WLN 529 and Hulas Chand Vs. State of Rajasthan (S.B.Criminal Misc.Petition No.2962/2012 date of decision 3.1.2013).
It is thus clear that consistent view of our High Court is that a document which has been alleged to be forged and fabricated and which has already been filed in a Civil or Criminal Court and is in the custody of the Court, it can be handed over to investigating agency for the purpose of examination by FSL.
The net result of the aforesaid discussion is that if the request is made by investigating officer to a Court for handing over of a document alleged to be forged and fabricated and which is in the possession of the Court for the purpose of its examination by FSL, the Court having possession of the document can hand over it to the investigating agency for the aforesaid purpose. Apart from it, permission may be sought by the Court under Rule 181 from the High Court and if such permission is granted the document can be handed over in compliance of the permission so granted by the High Court.
In the present case as the permission has been sought by the learned Court below for handing over of the will in dispute to investigating officer and according to the learned counsel for the respondent after getting permission the document has already been examined by FSL, no illegality or impropriety can be said to have been committed by the Court below requiring interference by this Court.
Consequently, the writ petition is, hereby, dismissed. The stay application also stands dismissed.
(PRASHANT KUMAR AGARWAL), J teekam (Reserved order) All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary