Madhya Pradesh High Court
Priya vs The State Of Madhya Pradesh on 9 September, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020
Kailashdas, Priya and Dineshdas V/s. State of M.P.
-: 1 :-
Indore, dated : 09.09.2020
(In M.Cr.C. No.32481/20 & M.Cr.C. No.31185/20)
Shri Vivek Singh, learned counsel for the applicant Priya and
Dineshdas.
(In M.Cr.C. No.30257/2020)
Shri Manish Yadav, learned counsel for the applicant
Kailashdas.
Respondent/State by Shri Rakesh Singh Bhadoria, Panel
Lawyer.
Shri Javed Khan, learned counsel for the complainant/objector.
ORDER
These (M.Cr.C. No.30257/2020 & M.Cr.C. No.32481/2020) are the First applications filed under Section 438 of Cr.P.C. by the applicants - Kailashdas S/o Bherudas Beragi and Priya W/o Nitin Bairagi, respectively who are apprehensive about their arrest by Police in connection with Crime No.189/2020 registered at Police Station Kanwan, District Dhar, concerning offence under Sections 420, 467, 468, 471 and 120-B of IPC.
2. This (M.Cr.C. No.31185/2020) is the First application under Section 439 Cr.P.C. by applicant - Dinesh Das S/o Devidas, who has been arrested by Police on 14.08.2020 in Crime No.189/2020, Police Station Kanwan, District Dhar concerning offence under Sections 420, 467, 468, 471 and 120-B of IPC.
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 2 :-
3. Heard the learned counsel for the parties through video conferencing and perused the case diary.
4. Mahendradas S/o Bherudas Bairagi made a written complaint dated 27.01.2020 in the office of Superintendent of Police, Dhar contending that his father Bherudas S/o Banshidas Bairagi has expired on 21.06.2018. He owned an agriculture land bearing survey No.207/2/2/KA area 1.493 hectare and one house measuring 15x30 sq.ft. He got married to Sujata, who gave birth to the applicant , Manisha and Madhu. After the death of Sujata, Bherulal performed second marriage by way of natra to Manoramabai, who gave birth to Mangesh and Priya. After the death of the father Bherulal, smt.Manorama Mangesh and Priya started pressurising him to relinquish their right in the aforesaid property. As they did not agree then Mangesh got prepared a forged will dated 06.02.2018 of Bherulal bequeathing his aforesaid properties in the name of smt.Manorama. In preparation of the forged will Manohardas, Dineshdas, Kailashdas, Dilip Kumar Meetha Stamp Vendor and Mirza Mehmood Baig Notary have helped him.
5. Before making the above written complaint to the Superintendent of Police the complainant Mahendra made a written complaint dated 22.10.2019 in the office of Collector, District Dhar. That Additional Collector, Dhar initiated the proceedings by issuing notice to 8 accused and also obtained the reply from them. After examining the entire matter, Addl. Collecter opined that the complaint made by Mahendra appears THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 3 :- to be correct and for which he can lodge an FIR. Vide letter dated 30.01.2020 he informed Mahendra Bairagi about closer of the proceeding and advised him for lodging an FIR, thereafter Mahendra lodged a written complaint to the Superintendent of Police which has resulted into the registration of the present FIR against 8 accused i.e. (1) Manoramabai W/o Bherudas Bairagi, (2) Mangesh S/o Bherudas Bairagi, (3) Priya D/o Bherudas Bairagi, (4) Manohardas S/o Kamaldas Bairagi, (5) Dineshdas S/o Devidas Bairagi, (6) Kailashdas S/o Bherudas Bairagi, (7) Dilip Kumar Meetha Stamp Vendor and (8) Mirza Mehmood Baig, Notary.
6. After registration of FIR the Police has arrested Mangesh and Dineshdas Bairagi on 14.08.2020 and recorded their Memo statement under Section 27 of the Evidence Act. According to them, they came to Indore District Court to purchase a Stamp Paper where they met an unknown person, who provided them 5 Stamp Papers of 100 - 100 denomination in Rs.5,000/- issued by B.K.Jain a Stamp Vendor. After purchasing the Stamp Papers they went to Civil Court Dhar and got typed a will of Bherulal. Mangesh has forged the signature of Bherulal and got it notarized from Mirza Mehmood Baig, Notary, in which Dineshdas and Manohardas signed as witnesses.
7. The Police have seized the alleged will from the possession of Mangesh. These Stamp Papers bear the signature of B.K.Jain Stamp Vendor, Indore but according to the Police THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 4 :- B.K.Jain did not sell these Stamp Papers but one Dilip Kumar Meetha, Stamp Vendor provided these Stamp Papers to Mangesh.
8. The applicant: Dinesh Das has filed an application (M.Cr.C. No.31185/20) for regular bail under Section 439 of Cr.P.C. and Kailash Das has filed an application (M.Cr.C. No.30257/20) for anticipatory bail under Section 438 of Cr.P.C. and Priya has filed an application (M.Cr.C. No.32481/20) for anticipatory bail under Section 438 of Cr.P.C.
9. Complainant Mahendra filed a written objection in all three applications opposing the bail to the present applicants.
10. Learned counsel Shri Vivek Singh, appearing on behalf of Dineshdas submits that he has been made accused in this case because he has signed the will as witnesses. Late Bherulal had executed the Will during his lifetime and the dispute between the stepbrothers and sister is like a civil dispute which has been wrongly given the colour of a criminal case to pressurise the applicants. Smt.Manorabai, Mangesh and Priya have already filed a civil suit in respect of the disputed Will. The registration of FIR is nothing but a misuse of process of law, hence, the applicants are entitled to bail.
11. Counsel appearing for Priya submits that she has been made accused only because she is the daughter of Smt.Manorama and Late. Bherulal except that there is no allegation against her in the entire complaint as well as in the THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 5 :- FIR. So long the mother is alive she has no right in the property left by Bherulal, hence, she is entitled to anticipatory bail.
12. Learned counsel Shri Manish Yadav appearing for Kailashdas submits that the only allegation against the applicant is that being a relative he helped Mangesh and others in preparation of a forged will. There is no specific act attributable to him in the complaint. He came to know about the registration of FIR from the news paper. He has neither purchased the Stamp Papers nor signed the will as a witness, therefore, he is entitled to anticipatory bail.
13. Shri Javed Khan, learned counsel appearing for the complainant/objector vehemently opposes the bail applications by submitting that all the accused with a common intention has prepared the forged will of Late. Bherulal in order to take the legal right of the complainant and his sisters in the property of their father. Accused purchased the stamp from Indore and used for preparation of the forged will at Dhar and got it notarized with the help of two witnesses. They have copied the signature of Bherulal from saledeed in he signed as witness. All the accused have not been arrested so far. Investigation is going on. Hence, they are not entitled for bail.
14. Learned Panel Lawyer appearing on behalf of the State submits that the Additional Collector has also conducted an enquiry and found that the will is forged and thereafter directed the complainant to lodge an FIR. Investigation is going THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 6 :- on and arrest of all the accused is necessary. Hence, the bail applications be rejected.
I have perused the case diary
15. That the proceedings initiated by the Additional Collector and the letter dated 30.01.2020 written by him to the complainant is available in the case diary. The Additional Collector did not disclose any provision of law under which he got conducted an enquiry in respect of the genuineness of the will and thereafter relegated the complainant to lodge an FIR.. However, if any commission of cognizable offence is brought to the knowledge of the Police, it is mandatory for SHO to register an FIR. Accordingly, the Police have registered an FIR. So far as the individual role of the applicants is concerned, applicant Priya has been made accused as she is the daughter of Lt. Bherulal and Smt.Manoramabai. No specific act is attributable to her in the entire FIR . Hence, she is entitled to anticipatory bail.
16. So far as Kailash is concerned he has been made accused because he is a relative of Mangesh and alleged to have helped Mangesh in the preparation of the forged will. There is no specific role has been alleged against him. Hence, he is also entitled for anticipatory bail.
17. So far as Dinesh is concerned, he allegedly signed the as witness in the Will but he has been arrested and his Memo. statement has been recorded by the Police and there is no recovery from him., hence he is also entitilled for the bail.
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 7 :-
18. The Civil Suit is already pending between the parties. Prima facie the dispute is of civil nature in which the complainant is disputing the will of his father . Only the Civil Court is competent to decide this issue. The Apex Court in the case of The Commissioner of Police and Others V/s.
Devender Anand and Others reported in MANU/SC/1058/2019 has held as under :-, 4.1.Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence Under Section 420/34 Indian Penal Code. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law.
4.2.......
4.3. In view of the above and for the reasons stated above and as observed hereinabove, the initiation of the criminal proceedings by the original complainant is nothing but an abuse of the process of law, we not only quash and set aside the impugned judgment and order, but also quash the criminal proceedings pending before the learned Magistrate in respect of the transaction in question. Consequently, the present appeal is allowed, the impugned judgment and order dated 13.01.2017 passed by the High Court is hereby quashed and set aside. Even the criminal proceedings initiated by the original complainant pending before the THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 8 :- learned Magistrate in respect of the transaction in question are hereby quashed and set aside.
As the Apex Court has held that when the dispute is purely of the civil nature then the registration of FIR is nothing but a pressure tactic. Hence, all the objections taken by the complainant are turned off.
19. Considering the aforesaid facts and circumstances of the case, without commenting on the merits of the case, the bail applications (M.Cr.C. No.30257/2020 and M.Cr.C. No.32481/2020) are hereby allowed. Applicants Kailashdas S/o Bherudas Beragi and Priya W/o Nitin Bairagi be released on bail upon their furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) each with one surety each in the like amount to the satisfaction of the arresting officer with the condition that they will cooperate with the investigation and the applicants shall make themselves available for interrogation by the Police Officer as and when required and shall also abide by the conditions No.1 to 3 of subsection (2) of Section 438 of Cr.P.C.
20. With the aforesaid, M.Cr.C. No.30257/2020 and M.Cr.C. No.32481/2020 stand disposed of.
21. Considering the aforesaid facts, without further commenting on the merits of the case, it would be appropriate to enlarge the applicant Dineshdas on bail.
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30257/2020, M.Cr.C. No.32481/2020 & M.Cr.C. No.31185/2020 Kailashdas, Priya and Dineshdas V/s. State of M.P. -: 9 :-
22. Accordingly, the application is hereby allowed. It is directed that on furnishing a personal bond by the applicant Dineshdas in the sum of Rs.1,00,000/- (Rupees One Lakh Only), with one solvent surety in the like amount to the satisfaction of concerned trial Court, he shall be released on bail, subject to the condition that he shall make himself available to the Police, as and when required during the investigation and will also remain present before the trial Court as and when directed in that behalf. It is also directed that the applicants shall abide by all the conditions enumerated under Section 437 (3) of the Cr.P.C.
23. Before releasing the applicant Dineshdas from the custody the jail authorities are directed to medically examine him in order to rule out the possibility of COVID -19 infections and shall comply with the direction given by the Hon'ble Apex Court in Writ Petition No. 1/2020.
C.c. as per rules.
( VIVEK RUSIA ) JUDGE ns NEERAJ NEERAJ SARVATE 2020.09.11 SARVATE 11:13:40 +05'30'