Rajasthan High Court - Jaipur
Satish Badaya S/O Late Shri Radheyshyam ... vs State Of Rajasthan on 24 February, 2021
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 6136/2019
Satish Badaya S/o Late Shri Radheyshyam Badaya, R/o Plot No.9,
Vidhut Nagar A, Ajmer Road, Chitrakoot, Jaipur.
----Accused/Petitioner
Versus
1. State Of Rajasthan, Through PP
----Respondent No.1
2. Rakesh Badaya S/o Late Shri Radheyshyam Badaya, R/o A-
131, Vidhut Nagar A, Ajmer Road, Chitrakoot, Jaipur West.
----Respondent No.2
For Petitioner(s) : Mr. Deepak Chauhan with
Mr. Vishal Pareek
Mr. Abhinav Bakolia
Mr. Shubham Khunteta
For Respondent(s) : Mr. F.R. Meena, PP
Mr. Gaurav Gupta
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
24/02/2021
This criminal miscellaneous petition under Section 482 CrPC
has been filed for quashing the FIR No.0289/2019 dated 29.05.2019
registered at Police Station Chitrakoot, District Jaipur (West) for the
offences under Sections 420, 406, 467, 468, 471 & 120-B of I.P.C.
Learned counsel for the petitioner submitted that the
complainant/respondent No.2 has filed a suit for partition and
permanent injunction against him in the Court of learned District
Judge, Jaipur Metropolitan, Jaipur wherein, in his written statement
filed on 20.08.2018, he has specifically averred that Late Shri
Radheshyam Badya, their father, has executed a Will dated
14.04.2016 of the house in question in his favour. He submitted that
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thereafter, the complainant filed an application under Order 6 Rule
17 CPC seeking amendment in the plaint wherein he has specifically
averred that five documents including the Will in question, were
forged by the petitioner (defendant No.2), his wife and their late
father. He, therefore, submitted that thereby the complainant has
admitted that the Will was executed by their late father. Learned
counsel submitted that thereafter with much delay, the FIR came to
be lodged on 29.05.2019 that too on the basis of opinion of private
handwriting expert which could not be the basis of the allegations
contained therein. Relying on the judgments of Hon'ble Apex Court of
India in cases of Rajeshbhai Muljibhai Patel & Ors. Vs. State of
Gujarat & Anr.: (2020) 3 Supreme Court Cases 794, Mukul
Agarwal & Ors. Vs. State of Uttar Pradesh & Anr.: (2020) 3
Supreme Court Cases 402, Mohini Hemant Jadia Vs. Hemant
Ghanshyamlal Jadia & Ors.: (2002) 9 Supreme Court Cases
767 and Sardool Singh & Anr. Vs. Smt. Nasib Kaur: 1987
(Supp) Supreme Court Cases 146, learned counsel submitted that
since the civil Court is already seized of the matter wherein the
question of genuineness of the Will is to be examined, the FIR in
question is liable to be quashed and set aside.
Per contra, the learned Public Prosecutor assisted by learned
counsel for the complainant submitted that the FIR discloses
commission of cognizable offence and hence, the same cannot be
quashed by this Court under Section 482 CrPC. They submitted that
the allegations therein are based not only on the opinion of the
private handwriting expert; but, travel beyond that also. With regard
to the averments made in the application filed by him under Order 6
Rule 17 CPC, learned counsel for the complainant contended that
there are specific allegations therein as to preparation of forged and
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fabricated Will by the petitioner in collusion with his wife. Learned
counsel for the complainant relied upon the judgments of Hon'ble
Apex Court of India in cases of Iqbal Singh Marwah & Anr. Vs.
Meenakshi Marwah & Anr.: (2005) 4 Supreme Court Cases
370, Syed Askari Hadi Ali Augustine Imam & Anr. Vs. State
(Delhi Administration) & Anr.: (2009) 5 Supreme Court Cases
528, Skoda Auto Volkswagen India Private Limited Vs. The
State of Uttar Pradesh & Ors.: 2021 (1) RCR (Criminal) 171
and K. Jagdish Vs. Udaya Kumar G.S. & Anr. AIR 2020 SC 936
in support of his submissions that civil as well as criminal
proceedings can go on simultaneously and in case of any conflict, the
criminal proceedings will have primacy over the civil proceedings.
` Heard the learned counsels for the parties and perused the
record.
A bare reading of the FIR wherein there are allegations against
the petitioner of forging and fabricating a Will purportedly executed
by their father, discloses commission of cognizable offence. It also
reveals that besides the allegation that the private handwriting
expert has opined signature of their father on the Will in question to
be forged, there is allegation of interpolation in the documents as
well.
The scope of quashing the criminal proceeding at the
threshold, has succinctly been laid down in the following cases:
The Hon'ble Apex Court of India has, in case of Dr. Monica
Kumar & Anr. Vs. State of Uttar Pradesh & Ors., AIR 2008
SCC 2781, held as under:-
"30.We may reiterate and emphasise that the
powers possessed by the High Court under Section 482
Cr.P.C. are very wide and the very plenitude of the power
requires great caution in its exercise. Court must be
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careful to see that its decision in exercise of this power is
based on sound principles. The inherent power should not
be exercised to stifle a legitimate prosecution. The High
Court being the highest court of a State should normally
refrain from giving a prima facie decision in a case where
the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before
the Court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no hard
and fast rule can be laid down in regard to cases in which
the High Court will exercise its jurisdiction of quashing the
proceeding at any stage. [See Janata Dal v. H.S.
Chowdhury (1992) 4 SCC 305; Raghubir Saran Dr. v.
State of Bihar 1964 (2) SCR 336; Kurukshetra University
v. State of Haryana (1977) 4 SCC 451; and Zhandu
Pharmaceuticals Works Limited and Others v. Mohd.
Sharaful Haque and Another 2005 (1) SCC 122]."
The Hon'ble Apex Court of India in case of State of Andhra
Pradesh Vs. Bajjoori Kanthaiah and Ors., AIR 2009 SCC
671, held as under:-
"8. As noted above, the powers possessed by the
High Court under Section 482 of the Code are very wide
and the very plenitude of the power requires great
caution in its exercise. Court must be careful to see that
its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised
to stifle a legitimate prosecution. High Court being the
highest Court of a State should normally refrain from
giving a prima facie decision in a case where the entire
facts are incomplete and hazy, more so when the
evidence has not been collected and produced before
the Court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no
hard and fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage.
(See: The Janata Dal etc. v. H.S. Chowdhary and others,
etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of
Bihar and another (AIR 1964 SC 1)). It would not be
proper for the High Court to analyse the case of the
complainant in the light of all probabilities in order to
determine whether a conviction would be sustainable
and on such premises, arrive at a conclusion that the
proceedings are to be quashed. It would be erroneous
to assess the material before it and conclude that the
complaint cannot be proceeded with. In proceeding
instituted on complaint, exercise of the inherent powers
to quash the proceedings is called for only in a case
where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the allegations set
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out in the complaint do not constitute the offence of
which cognizance has been taken by the Magistrate, it is
open to the High Court to quash the same in exercise of
the inherent powers under Section 482 of the Code. It is
not, however, necessary that there should be meticulous
analysis of the case before the trial to find out whether
the case would end in conviction or acquittal. The
complaint/F.I.R. has to be read as a whole. If it
appears that on consideration of the allegations in
the light of the statement made on oath of the
complainant or disclosed in the F.I.R. that the
ingredients of the offence or offences are
disclosed and there is no material to show that the
complaint/F.I.R. is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High Court.
When an information is lodged at the police station and
an offence is registered, then the mala fides of the
informant would be of secondary importance. It is the
material collected during the investigation and evidence
led in Court which decides the fate of the accused
person. The allegations of mala fides against the
informant are of no consequence and cannot by itself be
the basis for quashing the proceeding. (See : Mrs.
Dhanalakshmi v. R. Prasanna Kumar and others (AIR
1990 SC 494), State of Bihar and another v. P. P.
Sharma, I.A.S. and another (1992 Suppl (1) SCC 222),
Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal
Singh Gill and another (1995 (6) SCC 194), State of
Kerala and others v. O.C. Kuttan and others (1999 (2)
SCC 651), State of U.P. v. O. P. Sharma (1996 (7) SCC
705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada
(1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of
NCT of Delhi) and another (1999 (8) SCC 728), Rajesh
Bajaj v. State NCT of Delhi and others AIR 1999 SC
1216), State of Karnataka v. M. Devendrappa and
another (2002 (3) SCC 89)."
Since, the FIR discloses commission of cognizable offence, the
same cannot be quashed by this Court under Section 482 CrPC.
No doubt, in cases of Rajeshbhai Muljibhai Patel (supra),
Mukul Agarwal (supra), Mohini Hemant Jadia (supra) & Sardool
Singh (supra), the Hon'ble Apex Court of India has held that where
genuineness of any document is subject mater of scrutiny by the civil
Court, the criminal complaint/FIR based on such document should
not be permitted to continue; however, the same cannot be taken as
absolute proposition of law. It is a well settled principle of law that
judgment of a Court has to be read in the light of factual matrix
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involved therein and cannot be treated as Euclid's formula. In case of
Iqbal Singh Marwah (supra), wherein, a criminal complaint was
filed alleging the Will produced in the civil proceeding, to be forged,
the Hon'ble Apex Court was pleased to held as under:
"32. Coming to the last contention that an effort
should be made to avoid conflict of findings
between the civil and criminal Courts, it is
necessary to point out that the standard of proof
required in the two proceedings are entirely
different. Civil cases are decided on the basis of
preponderance of evidence while in a criminal
case the entire burden lies on the prosecution
and proof beyond reasonable doubt has to be
given. There is neither any statutory provision
nor any legal principle that the findings recorded
in one proceeding may be treated as final or
binding in the other, as both the cases have to
be decided on the basis of the evidence adduced
therein. While examining a similar contention in
an appeal against an order directing filing of a
complaint under Section 476 of old Code, the
following observations made by a Constitution
Bench in M.S. Sheriff vs. State of Madras AIR 1954 SC
397 give a complete answer to the problem
posed: (AIR p.399, paras 15-16)
"(15) As between the civil and the criminal
proceedings we are of the opinion that the
criminal matters should be given precedence.
There is some difference of opinion in the High
Courts of India on this point. No hard-and-fast
rule can be laid down but we do not consider
that the possibility of conflicting decisions in the
civil and criminal Courts is a relevant
consideration. The law envisages such an
eventuality when it expressly refrains from
making the decision of one Court binding on the
other, or even relevant, except for certain
limited purposes, such as sentence or damages.
The only relevant consideration here is the
likelihood of embarrassment.
(16) Another factor which weighs with us
is that a civil suit often drags on for years and it
is undesirable that a criminal prosecution should
wait till everybody concerned has forgotten all
about the crime. The public interests demand
that criminal justice should be swift and sure;
that the guilty should be punished while the
events are still fresh in the public mind and that
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the innocent should be absolved as early as is
consistent with a fair and impartial trial. Another
reason is that it is undesirable to let things slide
till memories have grown too dim to trust.
This, however, is not a hard-and-fast rule.
Special considerations obtaining in any
particular case might make some other course
more expedient and just. For example, the civil
case or the other criminal proceeding may be so
near its end as to make it inexpedient to stay it
in order to give precedence to a prosecution
ordered under Section 476. But in this case we
are of the view that the civil suits should be
stayed till the criminal proceedings have
finished."
33. In view of the discussion made above, we
are of the opinion that Sachida Nand Singh has
been correctly decided and the view taken
therein is the correct view. 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 custodia legis.
34. In the present case, the Will has been
produced in the Court subsequently. It is
nobody's case that any offence as enumerated
in Section 195(1)(b)(ii) was committed in
respect to the said Will after it had been
produced or filed in the Court of District Judge.
Therefore, the bar created by Section 195(1)(b)
(ii) Cr.P.C. would not come into play and there is
no embargo on the power of the Court to take
cognizance of the offence on the basis of the
complaint filed by the respondents. The view
taken by the learned Additional Sessions Judge
and the High Court is perfectly correct and calls
for no interference."
A three-Judges Bench of the Hon'ble Apex Court in case of
Skoda Auto Volksawagen India Private Limited (supra),
recording the contentions of the petitioner seeking quashing of the
FIR, in para 16, proceeded to hold as under:-
"16. The main contentions of the petitioner are:-
(i) That the Police cannot investigate an
issue, the substratum of which is sub judice
before this Court in the civil appeals arising out
of the order of the NGT; and
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(ii) That the High Court failed to take note
of the long delay on the part of the 3 rd
Respondent in lodging the complaint and also
the fact that the VAHAN Portal of the
Government shows the purchase of only 3
vehicles as against the claim of the 3 rd
Respondent to have purchased 7 vehicles.
19. The mere delay on the part of the 3 rd
Respondent-complainant in lodging the
complaint, cannot by itself be a ground to quash
the FIR. The law is too well settled on this
aspect to warrant any reference to precedents.
Therefore, the second ground on which the
petitioner seeks to quash the FIR cannot be
countenanced.
40. Therefore, we are unable to agree with the
contention of the learned Senior Counsel for the
petitioner that the substratum of the police
complaint is something that is already the
subject matter of adjudication before this Court
in the appeals arising out of the order of the
NGT. As a matter of fact, the High Court has
been fair to the petitioner, by granting
protection against arrest till the filing of the
report under section 173(2) of the Code. We do
not think that the petitioner can ask for anything
more.
41. It is needless to point out that ever since the
decision of the Privy Council in King Emperor
vs. Khwaja Nazir Ahmed: AIR 1945 PC 18,
the law is well settled that Courts would not
thwart any investigation. It is only in cases
where no cognizable offence or offence of any
kind is disclosed in the first information report
that the Court will not permit an investigation to
go on. As cautioned by this Court in State of
Haryana vs. Bhajan Lal: (1992) Supp. (1) SCC
335, the power of quashing should be exercised
very sparingly and with circumspection and that
too in the rarest of rare cases. While examining
a complaint, the 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 or in the complaint.
In S.M. Datta vs. State of Gujarat: (2001) 7
SCC 659, this Court again cautioned that
criminal proceedings ought not to be scuttled at
the initial stage. Quashing of a complaint should
rather be an exception and a rarity than an
ordinary rule. In S.M. Datta (supra), this Court
held that if a perusal of the first information
report leads to disclosure of an offence even
broadly, law courts are barred from usurping the
jurisdiction of the police, since the two organs of
the State operate in two specific spheres of
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activities and one ought not to tread over the
other sphere."
The Supreme Court has, in case of M. Krishnan Vs. Vijay
Singh and Another: (2001) 8 Supreme Court Cases 645, held
as under:-
"5. Accepting such a general proposition would
be against the provisions of law inasmuch as in
all cases of cheating and fraud, in the whole
transaction, there is generally some element of
civil nature. However, in this case, the
allegations were regarding the forging of the
documents and acquiring gains on the basis of
such forged documents. The proceedings could
not be quashed only because the respondents
had filed a civil suit with respect to the aforesaid
documents. In a criminal court the allegations
made in the complaint have to be established
independently, notwithstanding the adjudication
by a civil court. Had the complainant failed to
prove the allegations made by him in the
complaint, the respondents were entitled to
discharge or acquittal but not otherwise. If mere
pendency of a suit is made a ground for
quashing the criminal proceedings, the
unscrupulous litigants, apprehending criminal
action against them, would be encouraged to
frustrate the course of justice and law by filing
suits with respect to the documents intended to
be used against them after the initiation of
criminal proceedings or in anticipation of such
proceedings. Such a course cannot be the
mandate of law. Civil proceedings, as
distinguished from the criminal action, have to
be adjudicated and concluded by adopting
separate yardsticks. The onus of proving the
allegations beyond reasonable doubt, in criminal
case, is not applicable in the civil proceedings
which can be decided merely on the basis of the
probabilities with respect to the acts complained
of. The High Court was not, in any way, justified
to observe:
"In my view, unless and until the civil
court decides the question whether the
document are genuine or forged, no criminal
action can be initiated against the petitioners
and in view of the same, the present criminal
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proceedings and taking cognizance and issue of
process are clearly erroneous."
In Kamladevi Agarwal Vs. State Of West Bengal and
Others: (2002) 1 Supreme Court Cases 555, the Hon'ble Apex
Court has held as under:-
"7. This Court has consistently held that the
revisional or inherent powers of quashing the
proceedings at the initial stage should be
exercised sparingly and only where the
allegations made in the complaint or the FIR,
even if taken it at the face value and accepted in
entirety, do not prima facie disclose the
commission of an offence. Disputed and
controversial facts cannot be made the basis for
the exercise of the jurisdiction. In R.P. Kapur v.
State of Punjab this Court held: (AIR p.869,
para 6)
"It is well established that the inherent
jurisdiction of the High Court can be exercised to
quash proceedings in a proper case either to
prevent the abuse of the process of any court or
otherwise to secure the ends of justice.
Ordinarily criminal proceedings instituted
against an accused person must be tried under
the provisions of the Code, and the High Court
would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is not
possible, desirable or expedient to lay down any
inflexible rule which would govern the exercise
of this inherent jurisdiction. However, we may
indicate some categories of cases where the
inherent jurisdiction can and should be exercised
for quashing the proceedings. There may be
cases where it may be possible for the High
Court to take the view that the institution or
continuance of criminal proceedings against an
accused person may amount to the abuse of the
process of the court or that the quashing of the
impugned proceedings would secure the ends of
justice. If the criminal proceedings in question is
in respect of an offence alleged to have been
committed by an accused person and it
manifestly appears that there is a legal bar
against the institution or continuance of the said
proceeding the High Court would be justified in
quashing the proceedings on that ground.
Absence of the requisite sanction may, for
instance, furnish cases under this category.
Cases may also arise where the allegations in
the first information report or the complaint,
even if they are taken at their face value and
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accepted in their entirety, do not constitute the
offence alleged; in such cases no question of
appreciating evidence arises; it is a matter of
merely of looking at the complaint or the first
information report to decide whether the offence
alleged is disclosed or not. In such cases it
would be legitimate for the High Court to hold
that it would be manifestly unjust to allow the
process of the criminal court to be issued
against the accused person. A third category of
the cases in which the inherent jurisdiction of
High Court can be successfully invoked may also
arise. In cases falling under this category the
allegations made against the accused person do
constitute an offence alleged but there is either
no legal evidence adduced in support of the case
or evidence adduced clearly or manifestly fails to
prove the charge. In dealing with this class of
cases it is important to bear in mind the
distinction between a case where there is no
legal evidence or where there is evidence which
is manifestly and clearly inconsistent with the
accusation made and cases where there is legal
evidence which on its appreciation may or may
not support the accusation in question. In
exercising its jurisdiction under Section 561-A
the High Court would not embark upon an
inquiry as to whether the evidence in question is
reliable or not. That is the function of the trial
magistrate, and ordinarily it would not be open
to any part to invoke the High Court's inherent
jurisdiction and contended that on a reasonable
appreciation of the evidence the accusation
made against the accused would not be
sustained. Broadly stated that is the nature and
scope of the inherent jurisdiction of the High
Court under Section 561-A in the matter of
quashing criminal proceedings, and that is the
effect of the judicial decisions of the point [Vide:
Shripad G. Chandavarkar In re AIR 1928 Bom
184, Jagar Chandra Mozumdar V. Queen
Empress. ILR (1899) 26 Cal 786, Shanker
Singh (Dr.) v. State of Punjab 56 Punj LR 54:
AIR 1954 Punj 193, Nripendra Bhusan Ray v.
Gobinda Bandhu Majumdar: AIR 1924 Cal 1018
and Ramanathan Chettiyar v. K. Sivarama
Subrahmanya Ayyar ILR (1924) 47 Mad 722]
8. This judgment was reiterated and following in
Hazari Lal Gupta v. Rameshwar Prasad: AIR
1972 SC 484, State of Karnataka v. L.
Muniswamy: AIR 1977 SC 1489, State of
Haryana v. Bhajan Lal: AIR 1992 SC 604 and
various other pronouncements.
9. Criminal prosecution cannot be thwarted at
the initial stage merely because civil
proceedings are also pending. After referring to
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judgments in State of Haryana v. Bhajan Lal:
AIR 1992 SC 604 and Rajesh Bajaj v. State NCT
of Delhi: (1999) 3 SCC 259 this Court in Trisuns
Chemical Industry v. Rajesh Agarwal: (1999) 8
SCC 686 held: (SCC p.690, paras 7-8)
"7.Time and again this Court has been
pointing out that quashing of FIR or a complaint
in exercise of the inherent powers of the High
Court should be limited to very extreme
exceptions [vide State of Haryana v. Bhajan Lal:
AIR 1992 SC 604 and Rajesh Bajaj v. State NCT
of Delhi: (1999) 3 SCC 259]
8. In the last referred case this court also
pointed out that merely because an act has a
civil profile is not sufficient to denude it of its
criminal outfit. We quote the following
observations: (SCC p.263, para 10)
"10. It may be that the facts narrated in
the present complaint would as well reveal a
commercial transaction or money transaction.
But that is hardly a reason for holding that the
offence of cheating were committed in the
course of commercial and also money
transaction."
10. .In Medchl Chemical & Pharma (P) Ltd. v.
Biological E. Ltd.: (2000) 3 SCC 269 this Court
again reiterated the position and held: (SCC
pp.272 & 278, paras 2 & 14)
"2. Exercise of jurisdiction under the
inherent power as envisaged in Section 482 of
the Code to have the complaint or the charge-
sheet quashed is an exception rather than a rule
and the case for quashing at the initial stage
must have to be treated as rarest of rare so as
not to scuttle the prosecution. With the
lodgment of first information report the ball is
set to roll and thenceforth the law takes its own
course and the investigation ensues in
accordance with the provisions of law. The
jurisdiction as such is rather limited and
restricted and its undue expansion is neither
practicable nor warranted. In the event,
however, the court on a perusal of the complaint
comes to a conclusion that the allegations
levelled in the complaint or charge-sheet on the
face of it does not constitute or disclose any
offence as alleged, there ought not to be any
hesitation to rise up to the expectation of the
people and deal with the situation as is required
under the law.
14. Needless to record however and it
being a settled principle of law that to exercise
powers under Section 482 of the Code, the
complaint in its entirety shall have to be
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examined on the basis of the allegation made in
the complaint and the High Court at that stage
has no authority or jurisdiction to go into the
matter or examine its correctness. Whatever
appears on the face of the complaint shall be
taken into consideration without any critical
examination of the same. But the offence ought
to appear ex facie on the complaint. The
observations in Nagawwa v. Veeranna
Shivalingappa Konjalgi: (1976) 3 SCC 736 lend
support to the above statement of law: (SCC
p.741, para 5)
"(1) where the allegations made in the
complaint or the statements of the witnesses
recorded in support of the same taken at their
face value make out absolutely no case against
the accused or the complaint does not disclose
the essential ingredients of an offence which is
alleged against the accused;
(2) where the allegations made in the
complaint are patently absurd and inherently
improbable so that no prudent person can ever
reach a conclusion that there is sufficient ground
for proceeding against the accused;
(3) where the discretion exercised by the
Magistrate in issuing process in capricious and
arbitrary having been based either on no
evidence or on materials which are wholly
irrelevant or inadmissible; and
(4) where the complaint suffers from
fundamental legal defect, such as, want of
sanction, or absence of a complaint by legally
competent authority and the like."
The cases mentioned by us are purely
illustrative and provide sufficient guidelines to
indicate contingencies where the High Court can
quash proceedings."
11. In Lalmuni Devi v. State of Bihar: (2001) 2
SCC 17 this Court held: (SCC p. 19, para 8)
"8. There could be no dispute to the
proposition that if the complaint does not make
out an offence it can be quashed. However, it is
also settled law that facts may give rise to a civil
claim and also amount to an offence. Merely
because a civil claim is maintainable does not
mean that the criminal complaint cannot be
maintained. In this case, on the facts, it cannot
be stated, at this prima facie stage, that this is a
frivolous complaint. The High Court does not
state that on facts no offence is made out. If
that be so, then merely on the ground that it
was a civil wrong the criminal prosecution could
not have been quashed."
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15. We have already noticed that the nature and
scope of civil and criminal proceedings and the
standard of proof required in both matters is
different and distinct. Whereas in civil
proceedings the matter can be decided on the
basis of probabilities, the criminal case has to be
decided by adopting the standard of proof of
"beyond reasonable doubt". A Constitution
Bench of this court. dealing with the similar
circumstances, in M.S. Sheriff v. State of
Madras: AIR 1954 SC 397 held that where civil
and criminal cases are pending, precedence
shall be given to criminal proceedings. Detailing
the reasons for the conclusions, the court held:
(AIR p.399, paras 15-16)
"15. As between the civil and the criminal
proceedings we are of the opinion that the
criminal matters should be given precedence.
There is some difference of opinion in the High
Courts of India on this point. No hard and fast
rule can be laid down but we do not consider
that the possibility of conflicting decisions in the
civil and criminal courts is a relevant
consideration. The law envisages such an
eventuality when it expressly refrains from
making the decision of one court binding on the
other, or even relevant, except for certain
limited purposes, such as sentence of damages.
The only relevant consideration here is the
likelihood of embarrassment.
16.Another factor which weighs with us is
that a civil suit often drags on for years and it is
undesirable that a criminal prosecution should
wait till everybody concerned has forgotten all
about the crime. The public interests demand
that criminal justice should be swift and sure;
that the guilty should be punished while the
events are still fresh in the public mind and that
the innocent should be absolved as early as is
consistent with a fair and impartial trial. Another
reason is that it is undesirable to let things slide
till memories have grown too dim to trust.
This however, is not a hard and fast rule.
Special considerations obtaining in any
particular case might make some other course
more expedient and just. For example, the civil
case or the other criminal proceeding may be so
near its end as to make it expedient to stay it in
order to give precedence to a prosecution
ordered under Section 476. But in this case we
are of the view that the civil suits should be
stayed till the criminal proceedings have
furnished."
17. In view of the preponderance of authorities
to the contrary, we are satisfied that the High
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Court was not justified in quashing the
proceedings initiated by the appellant against
the respondents. We are also not impressed by
the argument that as the civil suit was pending
in the High Court, the Magistrate was not
justified to proceed with the criminal case either
in law or on the basis propriety. Criminal cases
have to be proceeded with in accordance with
the procedure as prescribed under the Code of
Criminal Procedure and the pendency of a civil
action in a different court even though higher in
status and authority, cannot be made a basis for
quashing of the proceedings.
18. In the result the appeal is allowed by setting
aside the impugned order passed by the High
Court and resorting the order of the Magistrate
with direction to proceed with the trial of the
case in accordance with the provisions of law
and decide the same on merits."
This Court has, in S.B. Criminal Miscellaneous Petition
No.1618/2015, Basant Raj Mehta Vs. State of Rajasthan& Ors.
decided on 01.03.2016, held as under:-
8. The question whether criminal proceedings can go
simultaneously where civil proceedings are
pending has been considered by the Hon'ble
Supreme Court in P. Swaroopa Rani vs. M. Hari
Narayana alias Hari Babu, (2008) 5 SCC 765
relevant part of the decision is reproduced
hereunder:
"11. It is, however, well-settled that in a
given case, civil proceedings and criminal
proceedings can proceed simultaneously. Whether
civil proceedings or criminal proceedings shall be
stayed depends upon the fact and circumstances
of each case.(see M.S.Sheriff v. State of Madras,
AIR 1954 SC 397, Iqbal Singh Marwah v.
Meenakshi Marwah, (2005) 4 SCC 370 and
Institute of Chartered Accountants of India v.
Assn. of Chartered Certified Accountants, (2005)
12 SCC 226).
12. It is furthermore trite that Section195(1)(b)
(ii) of the Code of Criminal Procedure would not
be attracted where a forged document has been
filed. It was so held by a Constitution Bench of
this Court in Iqbal Singh Marwah stating: (SCC
pp.387-88, paras 25-26)
"25. An enlarged interpretation to Section
195(1)(b)(ii), whereby the barcreated by the said
provision would also operate where after
commission of an act of forgery the document is
subsequently produced in court, is capable of
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great misuse. As pointed out in Sachida Nand
Singh,(1998) 2SCC 493 after preparing a forged
document or committing an act of forgery, a
person may manage to get a proceeding
instituted in any civil, criminal or revenue court,
either by himself or through someone set up by
him and simply file the document in the said
proceeding. He would thus be protected from
prosecution, either at the instance of a private
party or the police until the court, where the
document has been filed, itself chooses to file a
complaint. The litigation may be a prolonged one
due to which the actual trial of such a person may
be delayed indefinitely. Such an interpretation
would be highly detrimental to the interest of the
society at large.
26. Judicial notice can be taken of the fact
that the courts are normally reluctant to direct
filing of a criminal complaint and such a course is
rarely adopted. It will not be fair and proper to
give an interpretation which leads to a situation
where a person alleged to have committed an
offence of the type enumerated in Clause (b)(ii) is
either not placed for trial on account of non- filing
of a complaint or if a complaint is filed, the same
does not come to its logical end. Judging from
such an angle will be in consonance with the
principle that an unworkable or impracticable
result should be avoided. In Statutory
Interpretation by Francis Bennion (3rd Edn.),
Para313, the principle has been stated in the
following manner:
"The court seeks to avoid a construction of
an enactment that produces an unworkable or
impracticable result, since this is unlikely to have
been intended by Parliament. Sometimes,
however, there are overriding reasons for applying
such a construction, for example, where it appears
that Parliament really intended it or the literal
meaning is too strong."
In regard to the possible conflict of findings
between civil and criminal court, however, it was
opined: (SCC pp.389-90,para 32)
"32. Coming to the last contention that an
effort should be made to avoid conflict of findings
between the civil and criminal courts, it is
necessary to point out that the standard of proof
required in the two proceedings are entirely
different. Civil cases are decided on the basis of
preponderance of evidence while in a criminal case
the entire burden lies on the prosecution and
proof beyond reasonable doubt has to be given.
There is neither any statutory provision nor any
legal principle that the findings recorded in one
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proceeding may be treated as final or binding in
the other, as both the cases have to be decided on
the basis of the evidence adduced therein."
It was concluded: (SCC p.390, para 33)
"33. In view of the discussion made above,
we are of the opinion that Sachida Nand Singh has
been correctly decided and the view taken therein
is the correct view. Section 195(1)(b)(ii) CrPC
would be attracted only when the offences
enumerated in 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 custodia legis.
"13. Filing of an independent criminal
proceeding, although initiated in terms of some
observations made by the civil court, is not barred
under any statute."
9. From the perusal of above quoted paragraphs,
it is clear that civil as well as the criminal
proceedings can go simultaneously if the
allegation of criminality exists in the FIR.
In view of the law laid down by the Constitution Bench of
Hon'ble Apex Court in the case of Iqbal Singh Marwah (supra),
the judgments relied upon by the learned counsel for the petitioner
are of no help to him. In view of preponderance of judgments to the contrary, this Court is not inclined to adopt the view taken by the Hon'ble Apex Court in the judgments relied upon by learned counsel for the petitioner.
Insofar as submission of learned counsel for the petitioner based on the averments contained in the application filed by the complainant under Order 6 Rule 17 CPC, is concerned, perusal of the application in its entirety reveals that the complainant has levelled categorical allegations therein that the Will dated 14.04.2016 was forged and fabricated by the petitioner and his wife putting forged signature and thumb impression of their late father Shri Radheshyam Badya on it. Even otherwise also, the FIR cannot be quashed by marshalling the evidence and entering into intricacies of pleadings in the civil proceedings pending between the parties. (Downloaded on 25/02/2021 at 10:18:27 PM)
(18 of 18) [CRLMP-6136/2019 The upshot of the aforesaid analysis is that this criminal miscellaneous petition is devoid of merit and is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J PRAGATI/260 (Downloaded on 25/02/2021 at 10:18:27 PM) Powered by TCPDF (www.tcpdf.org)