Court No. - 44
Case :- CRIMINAL MISC. WRIT PETITION No. - 8065 of 2021 Petitioner :- Shamim Ahmad And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashok Kumar Mishra,Akhilesh Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the petitioners, learned A.G.A. for the State, Sri R.S.Yadav for the respondent no. 4 and perused the record.
The allegations in the first information report regarding the execution of forged sale deed dated 13.5.2013 on the basis of another forged sale deed dated 16.3.1999 by the petitioners herein with regard to the disputed property, are clear and categorical.
It is submitted by the learned counsel for the petitioners that the dispute between the parties is purely civil in nature, inasmuch as, in Original Civil Suit No. 74 of 1998, the claim of the father of the petitioners for injunction had been rejected by the competent Court. It is then, submitted that though the First Appeal against the order of dismissal of the suit had been allowed by the competent Court but in the Second Appeal, ad- interim injunction had been granted in favour of the petitioners herein. The sale deed dated 13.5.2013 had been executed after the interim injunction order was passed by the Second Appellate Court.
In rebuttal, it is contended by the learned counsel for the respondents that Second Appeal filed by the petitioners herein has been dismissed for non prosecution by the judgement and order dated 26.4.2018. It is further stated that the restoration application filed by the petitioners herein had also been dismissed vide order dated 24.8.2021.
Suffice to note that the order passed by the Second Appellate Court has not been brought on record. The assertion of the petitioners that the sale deed of the year 2013 cannot be said the forged document, therefore, cannot be examined. As regard the contention of the learned counsel for the petitioners that in an application under Section 156(3) Cr.P.C., the petitioners have been summoned and the said case has now been treated as complaint case and in view of the Section 210 Cr.P.C. the investigation in case crime no.0149 of 2021, under sections 420, 467, 468, 471, 120-B I.P.C. cannot be proceeded.
It is relevant to quote the provision of Section 210 Cr.P.C. which reads as under;
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence-(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation."
A perusal of the said provision indicates that in a complaint case, when it comes before the Magistrate that an investigation by the police is in progress in relation to the offence, which is the subject matter of inquiry before him, he can stay the proceeding of such inquiry and call for report from the police officer conducting the investigation in the Court. In view of language employed in Section 210 (1) of the Code of Criminal Procedure, the contention of the learned counsel for the petitioners that the proceedings of investigation are to be stayed, is found misconceived.
The writ petition is, thus, dismissed being devoid of merits.
Order Date :- 24.9.2021 Gss