Court No. - 53
Case :- APPLICATION U/S 482 No. - 11934 of 2004 Applicant :- Chhotey Lal And Others Opposite Party :- State Of U.P. And Others Counsel for Applicant :- L.M. Singh Counsel for Opposite Party :- Govt. Advocate
Hon'ble J.J. Munir,J.
1. A perusal of the office report dated 3.2.2005 shows that service upon opposite party No.2 has been effected. It is held good. No one has put in appearance on behalf of the opposite party.
2. This is an application seeking to quash proceedings in Case No.2196 of 2002, State Vs. Chhotey Lal & Ors., under Sections 420, 467, 468 and 471 IPC at Police Station Rasoolabad District Kanpur Dehat pending in the Court of IIIrd Additional Chief Judicial Magistrate, Kanpur Dehat and also to quash the order dated 24.08.2004, passed by the IIIrd A.C.J.M. Kanpur Dehat, in the said case. Despite the case being called on in the revised list, no one appears for the applicant. This case was also called on 11.12.2018, 13.12.2018, 18.12.2018 and 19.12.2018. On those dates also, no one responded on behalf of the applicant.
3. The Court has perused the records with the assistance of Sri Indrajeet Singh Yadav, learned AGA along with Sri Avanish Shukla, learned counsel appearing on behalf of the State.
4. The prosecution case in brief is that the applicants filed a declaratory suit under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, in the court of Sub-Divisional Magistrate, Rasulabad, Kanpur Dehat, and during the course of proceedings of the said suit, the applicants are alleged to have filed a forged Khatauni to establish their claim in the suit. It is the further case of the prosecution that on the basis of forged documents, the applicants wanted to grab property of the Gaon Sabha, thus, committing offences punishable under Sections 420, 467, 468, 471 IPC. On the basis of the said allegation, opposite party no.2 filed an FIR against all the applicants on 14.09.2000 giving rise to Case Crime no.174 of 2000, under Sections 420, 467, 468, 471 IPC at Police Station Rasulabad, District Kanpur Dehat.
5. The police investigated the matter, examining witnesses and record, where it was found that the applicants in connivance with officials of the revenue department jointly committed the offences alleged, by their act in illegally expunging the name of Gaon Sabha in the revenue record, and in its place, recording that of the applicants. A certified copy of the tampered and forged revenue record/ Khatauni was issued to the applicants, on the basis of which, they have now sued in the Court of the Sub-Divisional Magistrate, Rasulabad to declare their right and title to the suit property under Section 229-B of the U.P. Z.A. & L.R. Act. The police after investigation finding the case against the applicants well established have filed a charge sheet, giving rise to the impugned proceedings that the applicants ask to be quashed by this Court, through the present application.
6. The applicants, apart from generally saying that the prosecution case on facts is baseless, which is a plea that this Court cannot go into in these proceedings under Section 482 Cr.P.C., appear to rest their challenge to the proceedings on two grounds:
(a) The alleged forgery being one related to judicial proceedings pending before the Sub-Divisional Magistrate, where allegedly false documents have been filed, the prosecution is barred by the provisions of Section 195(1)(b)(ii) Cr.P.C.;
(b) The matter being subjudice in court in a pending suit, it would lead to conflicting judgments in case the documents were to be adjudged valid by the Sub- Divisional Magistrate in the suit while the same are held to be the product of forgery in the criminal proceedings impugned, which would, thus, be an abuse of the process of court.
7. So far as the submission based on the bar to prosecution created under the provisions of Section 195(1)(b)(ii) Cr.P.C. is concerned, it is now no longer res integra that the bar is attracted only when the offences referred to in Section 195(1) (b)(ii) Cr.P.C. have been committed in relation to a document, after it has been received in evidence during the course of a judicial proceeding in any court, that is to say, when the document is in the Court’s custody. It does not apply to a case where forgery in relation to a document is committed outside court, and the product of forgery is filed in Court. In the latter situation, proceedings can be initiated unhindered by the bar created under Section 195(1)(b)(ii) Cr.P.C. In this connection, it is illuminating to refer to the decision of their Lordships of the Supreme Court in Senior Manager (P & D), RIICO Ltd. vs. State of Rajasthan and another, (2018) 1 SCC 79, where recounting the legal position, it has been held thus:
“11. We have considered the submissions of the learned counsel for the parties and have perused the record. Insofar as, submission of the appellant regarding Section 195(1)(b)(ii) CrPC is concerned the law is not well settled by the Constitution Bench judgment that Section 195(1)(b)(ii) CrPC 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. The Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah [Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370: 2005 SCC (Cri) 1101], had held: (SCC pp. 390-91, paras 33-34) “33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh [Sachida Nand Singh v. State of Bihar, (1998) 2 SCC 493 : 1998 SCC (Cri) 660] 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 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) CrPC 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.”
8. In the present case, there is little doubt that the Khatauni that is said to be a product of forgery was filed in Court, with the forgery accomplished outside Court, and before the document was put in evidence. It is not that some forgery in relation to the document was committed while it was in custodia legis. Thus, the first ground on which the applicants seek to quash the impugned proceedings does not hold substance.
9. The second ground that emerges, rather collaterally from the averments in paragraph 14 of the affidavit, also does not hold substance, inasmuch as, it is well settled that where an act distinctly amounts to a criminal offence, and at the same time a civil wrong, both civil and criminal courts have independent jurisdiction untrammeled by the other, to reach their conclusions, may be contrary. It is quite another thing, where the plea is that the cause of action involved is essentially civil in nature, with no criminal trappings to it. That is not the case here. As such, the second ground also does not hold substance, in the opinion of this Court.
10. In the result, this Court does not find any good reason to quash the impugned proceedings before the Magistrate. The application fails and is dismissed. The interim order dated 08.11.2004 stands vacated. The trial court is directed to expedite proceedings and conclude the same positively within a period of six months bearing in mind the fact that the proceedings relate to the year 2002. In case witnesses do not appear, immediate coercive process shall be issued to secure their attendance, and once they appear, they shall not be discharged till their evidence is concluded.
11. Let a copy of this order be certified to the Magistrate concerned through the Chief Judicial Magistrate, Kanpur Dehat forthwith by the office.
Order Date :- 21.12.2018 Anoop/ NSC