Allahabad High Court
Manoj Singh And Another vs State Of U.P. And 2 Others on 7 September, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On:01.07.2022 Delivered On:07.09.2022 Court No. - 48 Case :- CRIMINAL MISC. WRIT PETITION No. - 7051 of 2022 Petitioner :- Manoj Singh And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pramod Kumar Panday,Durgesh Kumar Singh,Shyam Singh Counsel for Respondent :- G.A.,Rajendra Singh Hon'ble Suneet Kumar, J.
Hon'ble Syed Waiz Mian, J.
(Per Hon'ble Syed Waiz Mian, J.)
1. At the very outset, learned counsel for the respondent no. 3 submits to decide the instant writ petition, at the admission stage itself, to which learned counsel for the petitioners also expresses his agreement, thus this writ petition is being taken up for its final disposal at the stage of admission.
2. Heard Shri Pramod Kumar Pandey, learned counsel for the petitioners, learned A.G.A. for the State and Shri Rajendra Singh, learned counsel for the respondent no. 3.
3. This Criminal Misc. Writ petition, under Article 226 of the Constitution of India, has been preferred by the petitioners, Manoj Singh and his wife Sunita Singh, for quashing the impugned First Information Report, stay their arrest, and for restraining the respondents from taking any coercive steps against them, in consequence of impugned First Information Report, having been scribed on 18.04.2022, by the respondent no. 3, Vinod Kumar Singh, at Case Crime No. 69 of 2022, under Sections 419, 420, 467, 468 and 471 I.P.C., Police Station-Chandauli, District-Chandauli.
4. This Criminal Misc. Writ Petition arising out of aforementioned First Information Report. It is alleged in the said First Information 2 that petitioner no. 1 is real brother of the informant and after death of their father in the year 2003 the petitioners, by hatching a conspiracy, executed a forged and fabricated, alleged will, in their name and in Suit No. 1197 of 2021, Rekha Singh vs. Harihar Singh, got mutated their names by the Court of Tehsildar concerned, vide order dated 29.07.2021 and when it came to the knowledge of the respondent no. 3 he lodged the impugned First Information Report. It is also averred in the First Information Report that the attesting witness Shiv Poojan Singh had died on 14.07.2021, whereas, his statement is said to have been recorded on 29.07.2021. The other attesting witness, Prem Prakash, having been shown to have filed his affidavit, affirming therein that he neither filed his affidavit nor has put his signature nor has any knowledge about the alleged will. In view of the objection and affidavits having been filed in the Court of concerned Tehsildar, the exparte mutation order dated 29.07.2021 has been set-aside.
5. Learned counsel for the petitioners mentioned that the alleged will, executed by Shri Harihar Singh, before his death, was in the consideration for their rendered services, care and out of love and affection and the same is valid, genuine and true.
6. Learned counsel for the petitioners states that the impugned First Information Report is being challenged chiefly on the ground that the allegations made therein are false, frivolous and arbitrary and also on the premise that a civil dispute being given a criminal colour by way of registration of First Information Report. It is argued that the validity and authenticity of the will is predominantly and overwhelmingly of a civil nature which needs 3 to be contested before an appropriate forum having jurisdiction.
7. On behalf of the petitioners, certified copy of the First Information Report, presented by the respondent no. 3, against the petitioners, under Section 156 (3) Cr.P.C. in the Court of Chief Judicial Magistrate, Chandauli, affidavits of deponent, Sandeep Kumar Singh, statement of Shiv Poojan Singh, recorded before the Court of Tehsildar, alleged will, judgment and order of Tehsildar, concerned, in connection with Suit No. RST/00799/2020, Rekha Singh vs. Harihar Singh, under Section 34 of Revenue Code, 2006, statement of Prem Prakash Singh, recorded in the said suit have been annexed with the writ petition.
8. Learned counsel for the petitioners in support of his arguments, refers to the judgment of Hon'ble Apex Court, passed in Mitesh Kumar J. Sha v. State of Karnataka, 2021 SCC Online SC 976, wherein which in para no. 47 reads as under;
" Moreover, this Court at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety."
9. He further relies upon judgments of Hon'ble Apex Court, in Case of Prof. RK Vijayasarathy vs. Sudha Seetharam 2019 (16) SCC 739, Para 23, State of Haryana v. Bhajanlal (1992 Supp (1) SCC 335, para 102, Indian Oil Corps. V. NEPC India Ltd. & Ors (2006) 6 SCC 736, para 12, Kapil Agarwal vs. Sanjay Sharma (2021 5 SCC
524), Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC Online SC 315, and A.P. Mahesh Coop. Urban Bank Shareholders Welfare Assn. v. Ramesh Kumar Bung, (2021) 9 SCC 4
152.
10. Next it is contended that Harihar Singh (since deceased) had bequeathed all his property by way of a registered will dated 23.08.2017, in favour of the petitioners. Further, the will has not been challenged by anyone before any competent authority till date. It is also submitted that respondent no. 3, who is admittedly real brother of petitioner no. 1, was conformably settled as he was running a well established business, hence his father did not transfer any share of his property to him, due to which the petitioners have been falsely implicated in the present criminal proceedings.
11. Learned counsel for the petitioners claims that the will is valid, true and its genuineness, validity and its execution cannot be set aside in instant criminal proceedings because the nature of dispute, with regard to will, is of civil nature. Instead of launching civil proceedings, the respondent no. 3 has preferred to take recourse to criminal proceedings just to harass them or to obtain quick relief as compared to the relief provided in the civil suit.
12. Lastly, the learned counsel for the petitioners advances the argument that in view of the facts and circumstances narrated in the petition, the impugned First Information Report dated 18.04.2022 be quashed, along with further proceedings to ensure fair and proper delivery of justice.
13. Learned A.G.A., who has received notices on behalf of the respondent nos. 1 and 2 but he did not seek time to file his reply or counter affidavit etc. For respondent no. 3 learned counsel argued at length and but has filed written submissions. He denied 5 to file counter affidavit.
14. In the written arguments, on behalf of the respondent no. 3, it is averred that the petitioners are husband and wife and out of the duo, petitioner no. 1 is real brother of the respondent no. 3, whereas, the petitioner no. 2 is his sister in law (Bhabhi). One brother, out of three, had died in the year 2003 survived by his wife namely Rekha Singh, whereas, Harihar Singh, passed away on 11.12.2019. It is further averred that their father lived all his life in Chandauli. Petitioners got an antedated forged Will prepared on 23.08.2017 with the name of the deceased and got executed at Varanasi, introducing marginal witnesses from Mirzapur and thereafter got their names mutated. When this fact came to his knowledge, the mutation order in pursuance of his restoration application was set aside and in that proceeding marginal witnesses appeared but denied the execution of Will, hence, the need of lodging the FIR arose.
15. In the instant petition, the question that arises is as to whether the allegations in the First Information Report taken on face value give rise to disputes of pure civil nature ?
16. Learned counsel for the answering respondent no. 3 refers the said controversy has been settled by the Hon'ble Supreme Court in case of Jagmohan Singh vs. Vimlesh Kumar & Ors. ................ Arising out of challenge judgment of this Court. In the written objection relevant para of the same has been quoted as under:
" In this case, it appears that the High Court fell in error in taking an adverse view only because the complainant had not challenged the genuineness of the will by bringing any action in a court of law and 6 further, the respondents had brought a suit for injunction against the complainant.
There can be no doubt that in the civil suit, the burden would be on the plaintiff relying on a will to establish the genuineness of the will on the basis of which relief/ permanent injunction is claimed. However, that does not prevent the accused, who can be defendants in such a civil suit from initiating criminal proceedings on the contention that the will is forged/ fabricated."
Thus the Hon'ble Apex Court was pleased to set aside the order passed by this Court.
17. Learned counsel for the respondent no. 3 has also cited the case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC online SC 315. The relevant part of the said judgment is as follows:
"While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint."
18. Learned counsel for the answering respondent concludes his submissions by stating that since the allegations in the First Information Report disclose prima facie commission of cognizable offences, therefore, present writ petition is not sustainable in law and consequently deserves to be dismissed.
19. We have heard the rival submission of learned for the parties and also perused the record.
20. In Prof. R.K. Vijayasarthy vs. Sudha Seetharam, 2019 (16) SCC 739 the appellants has instituted a civil suit for the recovery of Rs. 20 Lakhs from the respondents, thereafter the first respondent filed complaint against her ex son in law (son of 7 appellant). The first respondent filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years after the filing of the suit, interim injunction was granted by the Court, without quashing the criminal proceedings till civil suit was decided. In the said case impugned judgement and order of High Court was set aside and the criminal complaint case was quashed.
21. In the instant petition no civil suit has been instituted.
22. In State of Haryana vs. Bhajan Lal (1992) Supp (1) SCC
335), in the political rivalry between the respondent no. 1 Bhajan Lal and Devi Lal, both belonged to two rival political parties and on account of political rivalry resulted initiation of number of criminal cases and counter cases. On the presentation of complaint, by the respondent no. 2, the then Station House Officer, registered a case on the basis of the allegations in the Complaint under Sections 161 and 165 I.P.C. and Section 5 (2) of Prevention of Corruption Act No. 21 of 1987. Against the said First Information Report, respondent no. 1 filed a writ petition under Articles 226 and 227 of the Constitution of India, seeking issuance of writ of certiorari for quashing the First Information Report and also a writ of prohibition restrain the authorities from further proceedings with the investigation. High Court concluded that the allegations did not constitute cognizable offence hence granted the relief as prayed for.
23. Hon'ble Apex Court held that the order of the High Court quashing the First Information Report in question viewed from any angle cannot be sustained both on the question of law and facts. Consequently, that part of the judgment of High Court quashing 8 the First Information Report was set aside.
24. Hon'ble Supreme Court has categorized the cases, wherein, the extraordinary powers under Article 226 can be exercised. The power under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice. Out of seven categories of cases, second category is to the fact that where the allegations in the First Information Report and other material do not disclose the cognizable offence justifying the investigation by a police officer. The First Information Report could be quashed to secure the ends of justice.
25. In Indian Oil Corps vs. NEPC India Ltd. & Ors. (2006) 6 Scc 736, the petition on behalf of the appellant, Indian Oil Corporation was preferred under Section 482 Cr.P.C. for quashing the criminal complaint. In that petition disputes were pertaining to breach of contract besides criminal complaint. The respondent Indian Oil Corporation had already sought injunction reliefs and money degrees.
26. The High Court by a common judgment had allowed both the petitions and quashed two complaints. The said order of the High Court was challenged in the above stated citations before the Hon'ble Apex Court.
27. Present petition preferred along with the aforesaid judgments. Because the petition before the Hon'ble Apex Court was preferred under Section 482 Cr.P.C., whereas, the present petition, in this Court, has been preferred under Article 226 of the Constitution of India.
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28. Hon'ble Supreme Court also held that power to quashment of process and exercise of inherent jurisdiction under Section 482 Cr.P.C. and/ under Article 226 of the Constitution of India is for the purpose that Criminal proceeding ought not to be permitted to be used as weapon of harassment. Hence, the Court is satisfied that Criminal Proceedings amounting to an abuse of process of law or that it amounts to bring pressure upon the accused in exercise of inherent powers, such proceedings can be quashed.
29. In A.P. Mahesh Coop. Urban Bank Shareholders Welfare Assn. v. Ramesh Kumar Bung (2021) 9 SCC 152, the Hon'ble Apex Court has held that High Court is permitted to pass an interim order under Section 482 Cr.P.C., in the nature impugned herein, in only exception of cases with caution and circumspection, giving atleast brief reasons and further held that the grant of such relief by High Court was granted in proper amendment with detail reasons therein. In the matter before the Hon'ble Apex Court, there was a dispute of civil which was sought to be converted into criminal case. The Hon'ble Supreme Court stayed the further proceeding including the arrest. It was observed that more than the allegations in dispute are different turfs, such as sometime persons, who raise such dispute manage to camouflage their real motive.
30. In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021, SCC online SC 315, the Apex Court held that by giving brief reasons, the High Court would be justified in even staying the further investigation, by way of an interim order. It is also laid down that misuse of criminal proceedings is not unknown and the criminal law cannot be set into motion as a matter of 10 course and therefore to take away the inherent powers of the High Court would not be in the larger public interest also.
31. Hon'ble Apex Court in Kapil Agrawal and others vs. Sanjay Sharma (221) 5 SCC 524 and Indian Oil Corporation vs M/S Nepc India Ltd., & Ors. reported in (2006) 6 SCC 736, laid down that inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve solitary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. It was also opined when the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.
32. In the given facts, it is pleaded by the petitioner the informant (Vinod Kumar Singh) alleged that his brother Manoj Singh accused/petitioner had fraudulently obtained a will from their father Harihar Singh on the basis of forged documents. It is further alleged in the FIR that the petitioner was driven by greed to inherit the property, consequently, mischievously got the entire property transferred in the name of his wife Sunita Singh and their Bhabhi Rekha Singh wife of their deceased brother. It is further alleged that pursuant to the registered sale-deed the court of Tehsildar Sadar Chandauli had directed mutation of the name of the petitioner and the other beneficiary under the will. It appears that on an application moved by the complainant the order mutating the name of the petitioner has been withdrawn and the matter is pending. It is under the afore-noted facts the present FIR came to be lodged through an application filed under Section 11 156(3) Cr.P.C. alleging fraud and misrepresentation in obtaining the will, as well as, the mutation order.
33. On specific query, learned counsel for the respondent/complainant submits that the will bequeathing the property upon the petitioner is a duly registered document. The validity of the will is yet to be challenged before the competent court. The mutation proceedings are summary proceedings and does not create any title upon any person, rather, acknowledges the possession of the property and for the purposes of revenue collection.
34. In the circumstances learned counsel for the petitioner is justified in submitting that unless the will is challenged before the competent court, the criminal proceedings has been initiated maliciously to coerce the petitioner to enter into a compromise out side the court. It is a case of pure civil nature given criminal colour with ulterior motive.
35. Having regard to the facts and circumstances of the case, the FIR dated 18 April 2022 lodged by the third respondent registered as Case Crime No. 69 of 2022 under Section 419, 420, 467, 468, 471 IPC, P.S. Chandauli, District Chandauli is hereby quashed with liberty to the aggrieved party to take recourse before the competent court with regard to the validity of the will.
36. The writ petition is, accordingly, allowed.
37. No order as to cost.
Order Date :- 07.09.2022 Deepak/