Allahabad High Court
Daya Ram Bhaskar vs The State Of U.P Thru Principal Secy., ... on 18 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 4 Case :- U/S 482/378/407 No. - 2493 of 2012 Applicant :- Daya Ram Bhaskar Opposite Party :- The State Of U.P Thru Principal Secy., Home Lucknow And Anr. Counsel for Applicant :- Mohd. Babar Khan Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Mohd. Babar Khan, learned counsel for applicant and learned A.G.A. for State.
2. This application under Section 482 Cr.P.C. has been filed praying for quashing of summoning order dated 21.10.2020, non bailable warrant dated 10.10.2011 and entire proceedings in Criminal Complaint Case No. 514 of 2009, under Sections 467, 471 I.P.C., Police Station Shahabad, District Hardoi pending in the Court of Additional Chief Judicial Magistrate, Court No. 5, Hardoi.
3. It is contended that no offence is made out from the material on record. Copy of the application filed under Section 156(3) Cr.P.C., which has been treated as complaint, is on record as Annexure-2 and it reads as under:
^^Jheku th fuosnu gS fd izkFkhZ ds ckck uUgw iq= jetw fuoklh eks0 ukxj dLck figkuh ftyk gjnksbZ dh e`R;q lu 1964 esa gks pqdh Fkh vkSj mudh [ksrh xkVk la[;k 442 nkSjku pdcUnh muds okfjl g;hnqYyk ld:Yyk vYkheqYyk o lSQqYyk o yybZ ,oe uUgsa ds uke pdcUnh ckgj dh [ksrh o edku crkSj okfjl izkFkhZ ds firk equhj] ds uke lu 1966 esa pdcUnh vf/kdkjh ds vkns'k ls fnukad 30-12-64 dks vk pqdh FkhA foi{khx.k tky lkt fdLe ds O;fDr gSa ftUgksaus ,d vu jftLVMZ olh;r uUgw iq= jetw ds uke ls xkVk la[;k 316 fLFkfrxzke figkuh uxj ikfydk vUnj dh Qjth olh;r fnukad 20-2-1990 dks uUgw dks thfor fn[kkrs gq;s rS;kj dj yh vkSj mDr olh;r esa Qjth gLrk{kj izkFkhZ ds firk equhj vgen o mlds gkfl;k ds xokg izkFkhZ ds ppsjs HkkbZ 'keheqnnhu iq= vuoj dks n'kkZ;k x;k vkSj muds tkyh gLrk{kj cuk;s x;sA foi{kh la0 4 bl Qjth olh;r ukek dk ys[kd gS foi{khx.k us lksph le>h lkft'k ds rgr bl Qjth olh;r ds vk/kkj ij rglhy 'kgkckn esa Qjth xokg is'kdj xkVk la[;k 316 TkSlk fd uUgw iq= jetw dh Fkh dks vius uke fcuk tkudkjh ds fnukad 15-3-1996 dks mDr Qjth olh;r ukek ds vk/kkj ij nkf[ky [kkfjt vius uke djok fy;k ftldh tkudkjh feyus ij izkFkhZ us rglhy 'kkgkckn esa lHkh izi= izLrqr fd;s vkSj mDr izi=ksa ds vk/kkj ij fnukad 30-6-08 dks rglhynkj 'kkgkckn }kjk olh;r Qjth ekurs gq;s 15-3-1996 dk vkns'k fujLr dj fn;k e`rd uUgw ds okfjl ds crkSj iqu% izkFkhZ o izkFkhZ ds firk vkfn dk uke crkSj okfjl ntZ djok fn;kA bl izdkj foi{khx.k us feydj rglhy 'kkgkckn essa tkyh olh;r rS;kj djkbZ vkSj /kks[kk/kM+h o tky lkth djus dh fu;r ls mDr izi= izLrqr fd;s ewy Qjth olh;rukek 'kkfey i=koyh vPNu [kka cuke uUgw okn la0 13@540 U;k;ky; rglhynkj 'kkgkckn esa ekStwn gSA izkFkhZ us fnukad 12-8-08 dks foi{khx.k ds fo:) /kks[kk/kM+h o tkylkth ds ekeyk ntZ djk;s tkus ds ckcr Jheku iqfyl v/kh{kd egksn; gjnksbZ ds tfj;s Mkd }kjk o Jheku ftykf/kdkjh egksn; gjnksbZ dks tfj;s yksdok.kh izkFkZuki= fn;sA ekeyk /kks[kk/kM+h tkylkth o tkyh vkfn dk xEHkhj vijk/k gksus ds ckotwn u rks izkFkhZ dh fjiksVZ ntZ dh x;h vkSj u dksbZ foospuk dh tk jgh gSA Nk;kizfr izkFkZuki= iqfyl v/kh{kd gjnksbZ e; jft0 jlhn o yksdok.kh izkFkZuki= vkns'k fnukad 30-6-08 Qjth olh;r ukes dh udy Nk;kizfr [krkSuh ftlesa foi{khx.k ds uke fujLr djus dk vkns'k vafdr gS ,oe pdcUnh esaa o"kZ 1964 esaa uUgw iq= jetw dh e`R;q dk bUnjkt gksuk vafdr gS dh Nk;kizfr o tkyh olh;r ds vk/kkj ij iwoZ esa ikfjr vkns'k fnukafdr 15-3-83 dh Nk;kizfr o bUr[kkc [krkSuh o"kZ 1996 dh Nk;kizfr layXu gSA vr% Jheku th ls fuosnu gS fd FkkukizHkkjh Fkkuk 'kkgkckn dks izkFkhZ dh fjiksVZ ntZ djokdj foospuk vkns'k ikfjr djus dh d`ik dh tk;sA^^ "Sir, It is submitted that the grandfather of the applicant namely Nanhu son of Ramju, resident of Mo.- Nagar, Kasba- Pihani, District- Hardoi had died in the year 1964 and his agricultural land Gata Number 442 was succeeded to his heirs Hayeedulla Sakrulla Alimulla & Saifulla & Lalai & Nanhe during consolidation and the land and house beyond consolidation was registered in the name of applicant's father namely Muneer as heir in the year 1966 by the order of Consolidation Officer vide his order dated 30.12.64. The opposite parties are forge type persons who had prepared a fake registered will dated 20.2.1990 of Nanhu son of Ramju, showing him alive, for Gata Number- 316 situated at village- Pihani under Nagar Palika (Municipality) and shown fake signature of applicant's father Muneer Ahmad and signature of applicant's cousin Shameemuddin son of Anwar as witness of margin, in that will and their forged signatures have been made. The opposite party number-4 is the writer of this fake will. The opposite parties, under a planned conspiracy, presented fake witnesses in Tahsil Shahabad on the basis of this fake will and got mutated the Gata Number 316 in their names on 15.3.1996 which was in the name of Nanhu son of Ramju, without information. On getting the information whereof the applicant presented all the documents in Tahsil Shahabad and on the basis of aforesaid papers the Tahsildar Shahabad found the will fake on 30.6.08 and in consequence cancelled the order dated 15.3.1996 and got entered again the names of applicant and applicant's father as the heirs of deceased Nanhu. Thus the opposite parties got prepared forged will at Tahsil Shahabad and having intention of forgery and cheating, presented aforesaid papers. The original fake will is available in the record of Case No.- 13/540, Achchan Khan versus Nanhu, in the court of Tahsildar Shahabad. On 12.8.08, the applicant had given application against the opposite parties to Superintendent of Police, Hardoi by post and to District Magistrate, Hardoi through Lokwani for registering case for committing forgery and cheating. Despite being a serious case of forgery and cheating, neither the report of the applicant has been registered nor any investigation is being made. The application sent to Superintendent of Police Hardoi alongwith Reg. Receipt, Lokwani application order dated 30.6.08, photocopy of fake will, photocopy of the khatauni in which the entries of the order for deletion of names of opposite parties and occurrence of death of Nanhu son of Ramju in the year 1964 in consolidation- are entered, photocopy of the earlier order dated 15.3.83 passed on the basis of fake will and photocopy of Intekhab Khatauni year 1996, are enclosed.
Therefore your goodself is requested to kindly direct the Station Officer, Police Station- Shahabad to register/lodge the report of the applicant and investigate."
(English Translation by Court)
4. Magistrate after recording statements under Sections 200 and 202 Cr.P.C. has summoned the applicant. Counsel for applicant submitted that he is not beneficiary and only a Deed-Writer therefore he has not committed any offence but the allegations made in the complaint prima facie implicate the applicant in commission of offence and after going through the complaint and others documents, I am of the view that at this stage it cannot be said that commission of cognizable offence is not made out or there is any error legal or otherwise in the order passed by Court below against applicants. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Recently in Md. Allauddin Khan Vs. The State of Bihar and others (2019) 6 SCC 107, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (emphasis added)
5. Recently, above view has been reiterated by Apex Court in Criminal Appeal No. 175 of 2020 (State of Madhya Pradesh Vs. Yogendra Singh Jadaun and another) decided on 31.01.2020.
6. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
Order Date :- 18.02.2020 PS