Punjab-Haryana High Court
Atul Kashyap vs Saroj Bala Sharma And Another on 3 March, 2014
C.R.R. No.2140 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.R. No.2140 of 2013 (O&M).
Decided on:-March 03, 2014.
Atul Kashyap. .........Petitioner.
Versus
Saroj Bala Sharma and another .........Respondents.
CORAM: Hon'ble Mr. Justice Dr. Bharat Bhushan Parsoon.
*****
Argued by:- Mr. Gurcharan Dass, Advocate
for the petitioner.
Mr. D.S.Brar, Advocate
for the respondents.
Dr. Bharat Bhushan Parsoon, J.
Pursuant to a complaint (Annexure P-1) filed on 27.4.2007, Atul Kashyap (now revisionist/petitioner) and Amrit Sagar Kashyap (father of the revisionist/petitioner and now no more) were summoned vide order (Annexure P-2) dated 5.5.2010 to face trial under Sections 420, 467, 468 and 120-B IPC. After appearance of the petitioner and his father (non-petitioner), pre-charge evidence against them was led by the complainant. Though aggrieved from the order of summoning (Annexure P-2), the petitioner and his father (non-petitioner) had filed CRM-M No.4017 of 2012 in this Court on 9.2.2012 and notice of motion as also regarding stay had been issued but it remained pending.
Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -2-2. On conclusion of pre-charge evidence by the complainant, on evaluation and appraisal of such evidence and attending circumstances, the trial court found no merit in the case and dismissing the complaint, the petitioner and his father were discharged vide order (Annexure P-3) dated 24.8.2012. Sequelly, CRM-M No.4017 of 2012 which was lying pending in this Court having been rendered infructuous was dismissed on 4.10.2012 (Annexure P-4).
3. Aggrieved with the order of 24.8.2012 (Annexure P-3), the complainant had field a revision petition (Annexure P-5) before Sessions Judge, Panchkula on 6.11.2012. Hearing the parties, the revisional court setting aside order (Annexure P-3) dated 24.8.2012 passed by Chief Judicial Magistrate, Panchkula granted one more opportunity to the complainant (now respondent No.1) to conclude his pre-charge evidence. The parties were directed to appear before the trial court.
4. Aggrieved with this order dated 3.6.2013 of the revisional court, the petitioner has come up in this revision petition claiming that the facts and attending circumstances were neither considered in right perspective nor had engaged the quantum of attention those required for their consideration. It is further claimed that dismissal of complaint after evaluating pre-charge evidence had resulted in discharge of the petitioner and his father (non- petitioner) which amounted to acquittal and sequelly, the said order of 24.8.2012 could only be challenged by the complainant under Section 378(4) of the Code of Criminal Procedure. It is thus averred that the said order could not have been challenged in a revision petition before the Sessions Judge but it was to be challenged by filing an appeal in this Court.
5. It is thus canvassed that instead of availing remedy under Section 378(4) Cr.PC, the complainant (now respondent No.1) intentionally filed a criminal revision petition on 8.11.2012 before Sessions Judge, Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -3- Panchkula which was neither maintainable nor could have been entertained by the Court of Session. In short, it is claimed that the very entertaining of criminal revision petition by the Additional Sessions Judge, Panchkula is without jurisdiction and order dated 3.6.2013 is liable to be set aside on that ground itself.
6. Even on merits, it is claimed that mere production of photocopy of alleged forged Will by the complainant was not sufficient to prove forgery of the Will or that it was not executed by the executor thereof. Claiming that findings of the trial court were just ignored by the revisional court, challenge has been made to order dated 3.6.2013 of the said revisional court. It is explained that civil matter with regard to the validity and legality of the Will is still pending between the parties before the civil courts at Chandigarh. It is further canvassed that initiation of criminal case by the complainant was with a motive to put pressure on the petitioner and his father in order to settle the civil matter pending vide plaint (Annexure P-6). With these averments, acceptance of this revision petition, setting aside order dated 3.6.2013 passed by the Additional Sessions Judge, Panchkula, has been sought.
7. Hearing has been provided to counsel for the parties while going through the paper book.
8. It is contended by counsel for the petitioner that when after closing the evidence of the complainant, no case had been found to frame charge against the accused, which resulted in their discharge, it was taken to be acquittal and instead of the matter having been dealt with in revisional jurisdiction by the Court of Session was to be dealt with by this Court at the instance of the complainant (now respondent) in compliance with the provisions of Section 378(4) Cr.PC. It is, thus, contended that exercise of revisional jurisdiction by the court below was wrong and thus, is of no legal significance. It is also claimed that forgery of the Will was subject matter of Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -4- civil litigation and thus, could not have been raked up in the criminal proceedings.
9. Per contra, stand of the respondent is that it being a warrants case, discharge does not amount to acquittal and thus, revisional jurisdiction of Court of Session as was exercised in passing the impugned order was perfectly legal. It is urged that pendency of civil proceedings ipso facto was no bar to continuance of criminal proceedings.
10. Before rival claims of the parties are taken up for adjudication, undisputed facts are being narrated as below:
Amrit Sagar Kashyap (father of the petitioner) and the respondent are brother and sister interse. Petitioner claims Will dated 15.10.2004 from Jaidev Dhiri in his favour. Testator Jaidev Dhiri was husband of sister of the complainant. Smt. Prem Lata Dhiri, sister of the complainant had died of cancer on 21.2.2004. She was issueless and had died intestate. Real dispute is of the estate of said Jaidev Dhiri, who died on 22.10.2004. The petitioner and his father Amrit Sagar Kashyap in a complaint filed by the respondent had been summoned for commission of the offences under Sections 420, 467, 468 and 120-B IPC vide order of 5.5.2010 of a criminal court of Panchkula. Amrit Sagar Kashap, however, had died on 17.1.2013. Allegations of complainant-respondent Smt. Saroj Bala are that the Will dated 15.10.2004 registered on 2.5.2005 was forged and fabricated document to deprive her of her share in the property. The petitioner, on the other hand, claims it to be a genuine and valid Will.
11. Without going into the dispute of property between the parties, the short question which poses for answer is as to whether the revisional court setting aside the order of closure of evidence of the complainant by the trial court, could grant one more opportunity to the respondent-complainant to conclude her evidence in support of her allegations in the complaint or Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -5- not?
12. Contention of the revisionist is not tenable when it is argued that revision of the complainant before Additional Sessions Judge, Panchkula was not maintainable as order of discharge passed by Chief Judicial Magistrate, Panchkula on 24.8.2012, amounted to acquittal and thus, under Section 378(4) Cr.PC, only appeal before this Court with its previous leave having been granted, was maintainable. This is a misplaced argument having no legal support as accused were discharged under Sections 420, 467, 468 and 120-B IPC vide order dated 24.8.2012 of Chief Judicial Magistrate, Panchkula for having allegedly forged the Will of deceased-testator Jaidev Dhiri. As is apparent, these offences are cognizable and trial was proceeding not as a summons case but as a warrants case in terms of provisions contained in Chapter XIX of the Code of Criminal Procedure. Since the offences were cognizable and order of discharge had been passed under Section 245 of the Code of Criminal Procedure, remedy for challenging the said order was either before the Court of Sessions under Section 397 Cr.PC or before this Court under Section 401 of the Code of Criminal Procedure by invoking revisional jurisdiction of the said court, such jurisdiction being concurrent of the Court of Sessions as well as of the High Court. In this context, reference may be made to M/s Tata Steel Limited Versus M/s Atma Tube Products Limited and others in CRM No.790-MA of 2010 (O&M) decided on 18.3.2013.
13. Contention of the counsel for the respondents, on the other hand, is that the present revision petition under Section 401 of the Code of Criminal Procedure is not maintainable by the accused as it is second revision petition whereas earlier was dismissed on 3.6.2013 by the Court of Additional Sessions Judge, Panchkula. This argument of the respondents is also legally not tenable. Present revision petition under Section 401 Cr.PC is very much maintainable because revisionist is aggrieved of order of the Additional Sessions Judge, Panchkula. This present revision petition is by an Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -6- accused who had earlier been discharged vide order dated 24.8.2012 passed by Chief Judicial Magistrate, Panchkula and it is not a revision petition by the complainant in whose favour the revision petition had been decided on 3.6.2013 by Additional Sessions Judge, Panchkula. The Court of Sessions as also of Judicial Magistrate are criminal courts which are subordinate to this Court and courts of Judicial Magistrates are subordinate to the Court of Sessions. Reliance in this regard may be placed on Ravinder Kaur Versus Gurmit Singh and others 1985 Criminal Law Journal 601 (P&H).
14. Closure of evidence by the trial court when effective opportunities were not provided to the complainant to lead her evidence had rightly been found to be wrong by the revisional court. In fact, non-appearance of the petitioner himself for a very long time after summoning order of 5.5.2010 had resulted in delay of proceedings. The petitioner had made appearance only on 3.1.2012 whereafter the case had been fixed for pre-charge evidence for 1.6.2012. On the first date itself fixed for pre-charge evidence, the trial court had granted last opportunity to the complainant to conclude her evidence. It has sufficiently been brought on record by the respondent that she had to go to Canada in connection with marriage of her daughter and then, she could not make appearance on 6.7.2012 and 24.8.2012 in the Court in India, and thus, could not examine herself as her witness though had examined two witnesses on her behalf on 6.7.2012. Despite the fact that two witnesses more had been served for 24.8.2012 even though the complainant was busy in connection with marriage of her daughter at Canada but remained unexamined, the trial court ignoring these aspects had closed the evidence of the complainant and on the same day, dismissed the complaint on merits as well.
15. Merely because the case had become very old and had been targeted for early disposal having entered the list of old cases of Samadhan of 2012-13, ipso facto was no ground to close the evidence and dismiss the complaint even on merits resulting in discharge of the accused. Neither the Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -7- trial court had noticed the fact that two witnesses were served for 24.8.2012 and having not come present, were to be got produced in the court by coercive process against them nor the trial court noticed the circumstances of absence of the complainant which were completely beyond her control as she was busy in marriage of her daughter at Canada and thus, was not in a position to attend the court on 24.8.2012 when the evidence of the complainant was closed by court order and on merits, the complaint was dismissed.
16. There is absolutely no infirmity or illegality in the impugned order of Additional Sessions Judge, Panchkula. With a view to do substantial justice to the parties, the criminal complaint which was axed in a tearing hurry on the day of closure of pre-charge evidence of the complainant, was rightly put back on the track setting aside the order of the trial court. Since the order of closure of pre-charge evidence of complainant consequently led to passing of the order of discharge of the accused terminating the proceedings finally, order of the trial court could not be dubbed as interlocutory one. Revision against the discharge order was maintainable before the Sessions Court is a proposition supported by decision of Municipal Corporation of Delhi Versus Girdharilal Sapuru and others 1981 AIR (SC) 1169.
17. No doubt, a civil suit pertaining to the Will of the testator between the parties is pending before the civil courts but the same will not foreclose the right of the complainant to give vent to her grievances that his brother-in-law (Jija) had no occasion to execute the Will in favour of petitioner Atul Kashyap who was not closely related to him. Criminal and civil proceedings can proceed simultaneously and findings of criminal court are not binding upon civil court and vica a versa. Reliance in this context is placed on the decision of Hon'ble Supreme Court in Iqbal Singh Marwah and another Versus Meenakshi Marwah and another 2005 (2) R.C.R. Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -8- (Criminal) 178. In that case, another incidental point which came up for consideration before the Hon'ble Apex Court was that an aggrieved party can lodge a criminal complaint against the person who forged the Will. It was further held that bar of Section 195(1)(b)(ii) of the Code was not applicable as the Will was not forged in the court but it was already forged when was produced in the Court.
18. In this light, discharge of the accused by closure of evidence does not foreclose opening of the matter again against the petitioner-accused as it does not constitute double jeopardy against the petitioner-accused. Section 300 of the Code of Criminal Procedure, 1973, doing away with matters of double jeopardy for an accused, provides that a person once convicted or acquitted is not to be tried again for the same offence. There is, however, explanation appended to the said Section 300, which explanation is to the following effect:
Explanation.--The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
19. The impugned order of the revisional court cannot be faltered either on facts or in law. Relevant observations, of the learned revisional court with complete approval, are being reproduced as below:
The accused did not appear for two years, which delayed the matter and the absence of the revisionist-complainant on 24.8.2012 was not intentional and the learned trial court closed the evidence of the revisionist-complainant on 24.8.2012 and on the same date without hearing the counsel for the revisionist-complainant, dismissed the complaint, as is clear from the orders dated 24.8.2012. The learned trial court has passed the order in a haste and should have taken into consideration the fact that the revisionist-complainant was given only three opportunities in pre-charge evidence, whereas the delay occurred in the case due to the non-appearance of the respondents for a long time.
x x x Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document C.R.R. No.2140 of 2013 -9- A bare perusal of the order shows that the learned trial court wanted to get rid of this complaint when he observed that the complaint was pending for the last many years with no progress and dismissal of the complaint, under these circumstances, cannot be, but capricious and arbitrary.
20. Finding nothing vitiating against the impugned order, upholding the same, the revision petition is dismissed.
21. Parties are directed to appear before the learned trial court on 1.4.2014. Since the matter has unduly been delayed in disposal, the trial court would decide the case within three months even by conducting day to day proceedings, if necessary.
(Dr. Bharat Bhushan Parsoon) Judge March 03, 2014 'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes Yag Dutt 2014.03.08 12:23 I attest to the accuracy and integrity of this document