Mohinder Singh vs Man Singh and others

V.S. Aggarwal, J.

Petitioner Mohinder Singh is the son of respondent No. 1 Man Singh. Shankari Devi, mother of respondent No. 1 is alleged to have executed a Will dated 4.6.1993 regarding her property. She expired on 12.10.1993. Petitioner has already filed a civil suit contending that along with Sat Pal, he has become owner in possession of the property left by Shankari Devi to the extent of one half share. The civil suit is pending. Respondent No. 1 filed a criminal complaint alleging that the Will in question is a false and fabricated document and that offences punishable under Sections 420, 419, 467, 468,471, 477, 109 and 120B, Indian Penal Code have been committed. It is not being disputed that an FIR has been recorded on the basis of the said complaint by respondent No. 1.

Petitioner seeks quashing of the said First Information Report and the proceedings thereto by the police, pointing out that as the matter is pending with the civil Court, it will finally adjudicate the genuineness or otherwise of the disputed Will. The police cannot investigate regarding it because of the bar imposed by Section 195 of the Criminal Procedure Code.

Notice had been issued to the respondents and respondent No. 1 has mainly contested the said petition.

Stress is being laid on the provisions of Section 195 of the Code of Criminal procedure. Relevant portion of the same is being produced for the sake of facility :

"(1) No Court shall take cognizance :

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860) namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of any offence specified in subclause (i) or sub clause (ii) except on the complaint in writing of that court, or of some other court to which that Court is subordinate."

On the strength of these provisions reproduced above, it is alleged that even the police should not be allowed to investigate in regard to the FIR recorded. A bare reading of the relevant provisions shows that it vests a bar for the Court to take cognizance. Section 195 of the Code of Criminal Procedure in no way fetters the right of the police to investigate offences which have duly been registered. The investigation by the police as is well known precedes the question of taking cognizance of an offence by Criminal Court.

Reference that the advantage can be made to the decision of this Court in the case of Karnail Singh v. State of Punjab, 1983(1) Recent Criminal Reports 38 : 1983 Criminal Law Journal 713 . The Division Bench referred that approval to the decision of the Privy Council and observed that :

"As was pointed out in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 : (1945 Cri LJ 413), the function of the police to investigate and that of the judiciary to take cognizance are distinct and separate though complementary to each other. The police has a statutory right to investigate into cognizable offences and the same would not be per se barred because the Code prescribes a procedure or a condition before cognizance of an offence disclosed by such investigation can be taken by a Court.

After scanning through various precedents in paragraph 14, the conclusion arrived that were :

"To finally conclude it is held that the statutory power of the police to investigate cognizable offences under Sections 471,475 or 476 IPC is in no way barred by virtue of the provisions of Section 195(1)(b)(ii) of the Cr.P.C. 1973."

Cited decision provides answer and the question thus requires no further probing. To the same effect is the decision of the Allahabad High Court in the case of G.B. Gupta v. State of Uttar Pradesh, 1986 All.L.J. 1535 and in the case of Ramanrath v. State of Rajasthan, 1989 Crl.L.J. 760 from the High Court of Rajasthan. In face of the aforesaid, the arguments of the petitioner''s counsel must be taken to be devoid of any merit.

Faced with this position, the learned counsel pressed into service, his other argument namely that the same question is pending before the civil Court as to if the Will is genuine or forged and, therefore, in his opinion police investigation would be an exercise of futility. Indeed if a civil suit is pending then it would be neither appropriate nor in the fitness of things to stop the investigation. It has to come to its own independent finding and at this stage, it is premature to even consider the request of the petitioner because investigation is not even complete nor the challan put in court.

No other argument was raised. As on off shootreasons given above the present petition being without merit, fails and is dismissed. Nothing said here would be taken as an expression of opinion on the merits of the case.