Allahabad High Court
Mahboob Ali And 2 Others vs State Of U.P. And Another on 5 March, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Order reserved on 10.02.2020 Order Delivered on 5.03.2020 Court No. - 69 Case :- APPLICATION U/S 482 No. - 32324 of 2015 Applicant :- Mahboob Ali And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Siddharth,Raj Kumar Dhama Counsel for Opposite Party :- G.A.,Deepti,Shelendra Kumar,Sudhir Dixit,Utkarsh Dixit Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Raj Kumar Dhama, learned counsel for the applicants, Sri Sudhir Dixit, learned counsel for the O.P. No. 2 and Sri G.P. Singh, learned A.G.A. for the State.
2. The present application u/s 482 Cr.P.C. has been filed with the prayer to quash the summoning order dated 28.9.2015 passed by Judicial Magistrate, Jewar district Gautam Budh Nagar in complaint case no. 589 of 2014 under Sections 420, 467, 468, 471 IPC, Police Station Jewar, district Gautam Budh Nagar.
3. As per complaint, the prosecution case is that Fazle Kareem's father had married Bismillah and out of the wedlock, Mehboob Ali, applicant no. 1, Fazle Haq, applicant no. 2, Habib, applicant no. 3 were born. These applicants had filed a case in the Court of Tehsildar in order to grab the property of O.P. No. 2 and his brothers, Ahsan, Imran and their mother, Ahmadi. Accused applicants had forged a death-certificate of deceased, Jan Mohammad showing his death to have taken place on 19.06.2008 although, Jan Mohammad died in Safdarjang hospital in Delhi on 19.05.2008 when he was residing with the informant.
4. O.P. No. 2/complainant had got him admitted in the said hospital for treatment. When O.P. No. 2 came across the said forged death-certificate of his father, he got the death-certificate issued from Nagar Palika Parishad, New Delhi of his father on 8.07.2008 and came to know about this fraud and also made a complaint on Tehsil Diwas on which Zila Panchayat Adhikari, Gautam Buddh Nagar submitted a report stating that the said false death-certificate of Jan Mohammad was issued by Village Panchayat Secretary on 21.05.2011 on the basis of an Affidavit which was not in accordance with rules and accordingly, the said Gram Panchayat Sachiv, Sukhvir Singh had been suspended. Another complaint in this matter was made by O.P. No. 2 on 20.08.2014 to the Sub Divisional Magistrate, Jewar on which the Block Development Officer had been directed to take action, pursuant to which an enquiry was conducted and the death-certificate was found to have been forged in enquiry report dated 29.08.2014 and accordingly the said forged death-certificate had been cancelled vide order dated 15.09.2014. Simultaneously direction was also given to P.S, Jewar for proceeding against the culprits but no action was taken, hence O.P. No. 2 sent a registered complaint to S.S.P., Gautam Buddh Nagar on 26.09.2014 but even then no action was taken.
5. On the said complaint which was registered as a Complaint Case No. 589 of 2014, statement of O.P. No. 2 was recorded under Section 200 Cr.P.C. in which he has stated that his father had died in Safdarjang Hospital, New Delhi on 09.05.2008 and that a false death-certificate had been fabricated of his father's death by his step brothers, Mehboob Ali, Fazle Haq and Habib (applicants). From where the same was got prepared, he does not know but in the court of Tehsil, Jewar, the same was submitted, then only he came to know that the same was got prepared in order to grab his land regarding which he had made a complaint at Tehsil Diwas on which enquiry was held by the Block Development Officer and it came to light that the same was a forged certificate. S.D.M. had directed for action to be taken but nothing was done. In the land in question, O.P. No. 2 has half share and their names have also been entered in Khatauni.
6. Thereafter a report was obtained under Section 202 Cr.P.C. from the P.S. which contains the facts that on the basis of certified copies obtained from the S.B.I., it was prima-facie proved that Jan Mohammad S/o Dalsher @ Dilsher had purchased an Eicher Tractor No. U.P. 1384683 after taking loan from S.B.I., Jewar in which deceased Jan Mohammad had mentioned his legal heir no.1, Smt. Ahmadi, No.2, Mehmood, No.3, Habib, No. 4, Fazle Kareem, No. 5, Fazle Haq, No.6 Abraham, No. 7, Ahsan, No.8, Umrao and against all these legal heirs, realisation warrant had been issued by the bank. Electricity bill of Smt. Ahmadi and Habib of Delhi proves that earlier Jan Mohammad was living in Delhi and address of Jan Mohammad was mentioned in Voter-Card I.D. as Mandawali, Delhi. A slip of M.T.N.L. phone bill of Delhi was also annexed and ration-card of Jan Mohammad was also had the said address of Delhi on which Jan Mohammad, Ahmadi, Rahmati, Amaruddin, Sitara and Fazle have been shown to be residing along with their age. Jan Mohammad and his five legal heirs, which include his wife and children have been shown as residents of Gram Panchayat, Kuraib, P.S. Jewar. Enquiry report of Village Development Officer, Devendra Dev Sharma of Jewar Block, District, Gautam Budh Nagar proves that Jan Mohammad had expired on 19.05.2008 in Safdarjang Hospital, New Delhi and the said date of death was got registered on 2.06.2008. The said enquiry report is dated 29.08.2014. The cousin brothers of Fazle Karim i.e. Mahboob Ali and Fazle, after giving false affidavit before Panchayat Sachiv, had got death-certificate issued on 21.08.2018 showing date of death of Jan Mohammad to be 19.06.2008. The said conspiracy was hatched by them in order to grab the land of O.P. No. 2 and after detailed enquiry, it was submitted by police that Jan Mohammad had died in Safdarjang Hospital on 19.05.2008 and thereafter Mahboob Ali and others, after giving false affidavit, had shown the date of death as 19.06.2008, in order to take undue benefit of the property of the deceased, so that their cousin brothers may not have to be given any right in the said land/property of the deceased.
7. On the basis of above statement of O.P. No. 2 as well as police enquiry report dated 21.08.2015, the court below has passed summoning order dated 28.09.2015 against accused applicant to face trial under Sections 420, 467, 468 and 471 I.P.C.
8. The submission made by learned counsel for the applicant is that basic dispute between the parties is whether Jan Mohammad had two wives i.e. Mst. (Musammat) Bismillah (dead) and Mst. Ahmadi (alive) or had he only one wife i.e. Mst. Bismillah who was mother of the applicant. O.P. No. 2 claims himself to be son of deceased, Jan Mohammad born out of wedlock of his (Jan Mohammad's) second wife, Mst. Ahmadi along with his two brothers i.e. Ahsan and Imran. On the contrary, applicants claim that after the death of their mother, Bismillah in 1994, their father, Jan Mohammad never married Mst. Ahmadi and that O.P. No. 2 and his two brothers were not Jan Mohammad's children. It is further mentioned that the dispute regarding mutation of legal heirs on the property of late Jan Mohammad is pending before Tehsildar, Jewar in the form of Case No. 229 of 2012 under Section 34 of U.P. Land Revenue Act and Original Suit No. 104 of 2012 is also pending between the parties before Civil Judge, Junior Division, Jewar regarding injunction and cancellation of agreement to sell. The parties have led their respective evidences before the Mutation Court as well as the Civil Court and the dispute regarding title of O.P. No. 2 and his mother, Ahmadi and his brothers regarding property of late, Jan Mohammad is yet to be settled. Mother of O.P. No. 2, Mst. Ahmadi had sold the land (four plots) recorded in the name of her late husband, Jan Mohammad to Smt. Seema Sharma W/o Mukul Sharma for a sale consideration of Rs. 28,00,000/- vide sale-deed dated 29.04.2013. She along with her sons i.e. O.P. No. 2, Ahsan and Imran had also entered into a registered agreement to sell, dated 8.08.2012, in favour of one Ram Kumar Sharma for selling another plot belonging to late Jan Mohammad for an amount of Rs. 7,00,000/-. On 21.08.2011, Panchayat Secretary had issued death-certificate of Jan Mohammad certifying that he died in village on 19.06.2008. O.P. No. 2 filed objection against the same before Sub Divisional Officer on 5.08.2014 on Tehsil Diwas stating that the applicants had got the death-certificate issued on 21.08.2011 on the basis of false affidavit, since Jan Mohammad had died on 19.05.2008 at Safdarjang Hospital, New Delhi and the same should be cancelled. The Sub Divisional Magistrate directed the Block Development Officer to conduct an enquiry and on the basis of the enquiry report, it transpired that death-certificate dated 21.08.2011 showing death of the deceased as 19.06.2008, was cancelled without any information or opportunity of hearing to the applicants. Thereafter O.P. No. 2 made another application dated 15.09.2004 to S.D.M., Jewar stating that since the death-certificate dated 21.08.2011 issued to the applicants, Mohammad Ali and others had been found to be false by the Additional Development Officer, Panchayat, Jewar in his report and on its basis, the same had been cancelled, therefore, a criminal case should be directed to be registered against the applicants by the police. On the next day i.e. on 6.09.2014, S.D.M., Jewar directed the police to register a case and proceeded against the applicants. When applicants came to know about the entire proceedings conducted by S.D.M. on the complaint of O.P. No. 2 about cancellation of the death-certificate of Jan Mohammad, they moved an application dated 19.09.2014 before S.D.M. stating that their father had died in village and death-certificate was issued by Panchayat Secretary which has been cancelled ex-parte, therefore, the order passed was illegal and should be cancelled because complaint of O.P. No. 2 is aimed at grabbing the property of late Jan Mohammad. S.D.M. directed the police not to proceed against the applicants till conclusion of enquiry and Nayab Tehsildar submitted his report dated 15.04.2015 to S.D.M., Jewar which is under consideration. A perusal of the report dated 15.04.2015 submitted by Nayab Tehsildar proves that it was not clear as to whether Jan Mohammad who died in Delhi on 19.05.2008 and is alleged to be father of O.P. No. 2, was the same man who died on 19.06.2008 in village, Nagla Handa Mirza Kuraiv, District Gautam Budh Nagar. The dispute regarding death certificate of late Jan Mohammad is still pending before S.D.M. Further it is mentioned that it is a serious civil dispute between the parties pending consideration and in the meantime, O.P. No. 2 has filed the present complaint alleging applicants to have obtained a fictitious death-certificate showing date of death of the deceased as 19.06.2008 issued by Gram Panchayat on the basis of false affidavit, although the S.D.M. is still considering the validity of the same. Further the cancellation of the said death-certificate has been done by the B.D.O. without opportunity of hearing given to the applicants, the said order being ex-parte, therefore, the complaint amounts to nothing but an abuse of process of court since in it, it has been presumed that the allegations made therein, were correct and the trial court has proceeded against the applicants only on the basis of ex-parte police report which has not taken into consideration the proceedings pending before Civil and Revenue Courts and the Court of Sub Divisional Officer regarding validity of death certificate dated 21.08.2011. Further it is mentioned that O.P. No. 2, his mother and brothers have already disposed of property worth Rs. 35,00,000/- belonging to the applicants claiming themselves to be legal heirs of the deceased, which conduct proves that they were trying to sell the property of the deceased without waiting for the decision to be given by Civil and Revenue Courts. Against the cancellation of the said death-certificate dated 29.06.2008, the applicants have the remedy of appeal under U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970 which they will pursue, in case final order is passed by the Sub Divisional Magistrate against them.
9. In Counter-Affidavit filed from the side of O.P. No. 2, it is submitted in rebuttal that Jan Mohammad was father of O.P. No. 2 who was resident of village, Nagla Handa, Majra Kuraiv, P.S. Jewar, District Gautam Budh Nagar who had married Smt. Bismillah and three sons were born out of the wedlock. After the death of Bismillah, Jan Mohammad again married Smt. Ahmadi and out of the wedlock, three sons were born i.e. Fazle Kareem (O.P. No. 2), Ahsan and Imran. After marriage with Ahmadi, some dispute arose between family members and Jan Mohammad started living separate in Delhi at the address 79/106 Sabji Mandi, Shiv Shakti Mandir, J.H.S., Mandavali Delhi. The other proofs of his living there were telephone bills issued by M.T.N.L. which have been annexed on 19.05.2008. Jan Mohammad died at Safdarjang hospital, death-certificate of which is annexed, thereafter, other three sons of late Jan Mohammad (step brothers of O.P. No.2) concocted and fabricated a document indicating Jan Mohammad to have died on 19.6.2008 at village, Handa and produced the same before the revenue authority got their names mutated in place of Jan Mohammad. Then, O.P. No. 2 made a complaint at Tehsil Diwas and after due enquiry, death-certificate issued by the competent authority in 2011 was cancelled. The sole motive to obtain the said forged death-certificate was to grab the share of O.P. No. 2 and his two brothers in the property of the deceased. The applicants had filed a Suit No. 104 of 2001 in which they have denied the fact that O.P. No. 2 and his two brothers and mother had any relation with late, Jan Mohammad which is absolutely wrong. Jan Mohammad had taken loan for a tractor from S.B.I. in the year, 2007 in which he has disclosed names of the applicants as well as O.P. No. 2 and his brothers and mother as legal heirs. When the said loan was not repaid by late, Jan Mohammad, the bank issued a recovery certificate against the legal successors on 1.05.2013. It makes crystal clear that O.P. No. 2 is son of Jan Mohammad and no one can say that O.P. No. 2 and his two brothers were not sons of late Jan Mohammad. Further it is mentioned that the suit pending before the Civil Judge, Jewar was dismissed on 30.10.2015 much prior to filing of the present application which fact has been deliberately concealed by the applicants. Further it is mentioned that bare reading of order dated 30.10.2015 of Civil Judge, Junior Division, Jewar in O.S. No. 104 of 2012 would make it crystal clear that disputed agreement dated 8.8.2012 had already been cancelled. Death-certificate issued by Panchayat Secretary was cancelled and as such now there was no dispute regarding death of Jan Mohammad. It is specifically stated that the death of Jan Mohammad took place on 19.05.2008 at Safdarjang hospital and the present applicants have filed a false affidavit before Village Development Officer to acquire forged death-certificates. Full opportunity was given to the applicants and a detailed enquiry was conducted by the authority and thereafter only, death-certificates dated 21.08.2011 was cancelled showing the date of death of Jan Mohammad to be 19.06.2008. Civil Suit has already been dismissed by Civil Judge, Junior Division and death-certificate dated 21.08.2011 has already been cancelled and there is no civil dispute pending before any competent court. After detailed enquiry made by the authority concerned, the certificate issued by Panchayat Secretary dated 21.08.2011 was cancelled. The applicants have submitted before Revenue Authority a forged and fictitious document to get their names mutated while the said certificate of death has already been declared forged.
10. From the side of applicants, version of the affidavit has been reiterated and in addition to that, it has been submitted that Original Suit No. 104 of 2012 had not been dismissed on merits rather it had been dismissed under Order 7 Rule 11 because the relief sought in suit had been frustrated because defendant no. 5 himself had got the agreement to sell dated 8.8.2012 and 29.04.2013 executed, which was sought to be cancelled by way of aforesaid suit, during pendency of the suit. Cancellation of agreement to sell dated 8.8.2012 by O.P. No. 2, his brothers and mother in favour of third party, Raj Kumar Sharma, after filing of suit by the applicants, clearly proves that they had illegally executed the agreement to sell on account of their inability to prove their case before the Civil Court. Further, it is mentioned that even after the dismissal of suit, the dispute regarding validity of death-certificate of Jan Mohammad is still under enquiry. It is not clear as yet whether Jan Mohammad had died in Delhi on 19.05.2008 as is alleged by O.P. No. 2 or he died on 19.06.2008 in village, Nagla Handa. O.P. No. 2 should have instituted a suit before competent civil court to get a declaration, since proceedings of mutation and grant of death-certificate were summary proceedings and, hence have no binding effect on the title of the party. The Up Zila Adhikari himself, on 16.06.2014 directed the police not to proceed against the applicants till further orders/conclusion of enquiry but O.P. No. 2 had filed the present complaint in order to put pressure upon the applicants to enter into compromise for fear of criminal proceedings.
11. After having heard both the sides and after having gone through the entire evidence on record, I find that the crux involved in this case is that the applicants are stated to have forged a death-certificate of deceased, Jan Mohammad who is said to be father of the applicants in order to grab the property of O.P. No. 2 and his brothers and mother who too are claiming to be the legal heirs of the deceased being sons of other wife of deceased. The question is as to whether the applicants have got the death certificate of the deceased, Jan Mohammad fabricated/ forged showing his date of death to be 19.06.2008 or whether Jan Mohammad died on 19.05.2008 in Safdarjang hospital as is being said by O.P. No. 2. It has also come on record that after enquiry, alleged forgedly obtained death certificate of Jan Mohammad showing his date of death to be 19.06.2008 has already been cancelled having been found to be a forged one but it is being disputed from the side of applicants as is evident from the pleadings above and it is being pleaded from the side of applicants/accused that for this, O.P. No. 2 ought to have filed a suit before Civil Court in order to get themselves declared legal heirs of deceased, Jan Mohammad because the mutation proceedings which were held before Tehsildar and other Revenue Authorities were of summary nature which would not have any bearing upon title of the parties.
12. I am of the view that since after enquiry it has been held that the said death-certificate showing date of death of the deceased to be 19.06.2008 has been found to be forged which is being claimed to be correct, this is a subject matter of evidence and it cannot be determined in proceeding under Section 482 Cr.P.C. as to whether any forgery/fabrication has been done by accused applicants or not and therefore I find that the proceedings need to be continued before the trial court to arrive on conclusion after full trial giving opportunity to both sides after adducing evidence.
13. In view of the above, I do not find any substance in the arguments made by learned counsel for the applicants, hence this Application under Section 482 Cr.P.C. need to be rejected and is accordingly, rejected.
Order Date:- 05.03.2020 A. Mandhani