Ram Pratap Pandey and Others vs State of U.P. and Another

Naheed Ara Moonis, J.—The instant revision has been filed by the revisionists against the order dated 24.4.2001 passed in Case No. 275 of 2001 (State of U.P. v. Ram Pratap Pandey and Ors.) arising out of case Crime No. 28 of 2000, P.S. Kerakat, district Jaunpur whereby the learned IV Additional Chief Judicial Magistrate, Jaunpur passed an order summoning the revisionists under Sections 467, 468, 471 and 420 I.P.C.

Heard the learned Counsel for the revisionists Sri Manoj Mishra, learned Counsel appearing for opposite party No. 2 Sri T.V. Pandey and the learned A.G.A. appearing on behalf of the State and have perused the record.

A first information report was registered by opposite party No. 2 against the revisionists on 19.1.2000 that she is the bona fide purchaser of the property in dispute by virtue of a registered sale deed dated 7.10.1995, which was executed by the son of the deceased Krishna Narain Pandey. Krishna Narain Pandey died on 15.12.1990 and whose heirs names were substituted in the revenue record on 21.1.1991. The said revisionists in connivance with one Udai Prakash Pandey, Advocate got executed power of attorney on 19.11.1992 as if it is executed by Krishna Narain Pandey the said power of attorney was filed in the court of Tehsildar, Kerakat, Jaunpur with the result Assistant Consolidation Officer had entered the name of Ram Pratap and Govind Narain in the revenue records. In support of her case, the opposite party No. 2 had also filed the death certificate of Krishna Narain Pandey who died on 15.12.1990 whereas the said power of attorney was prepared by him, after two years of his death it was directed that the matter be investigated by the Consolidation Officer, Kerakat, Jaunpur and the first information report be registered against them. It is vehemently contended by the learned Counsel for the revisionists that no forgery or cheating has been done by the revisionists. Krishna Narain Pandey had executed a Will in respect of the property on 12.10.1990 thereafter the applicants/revisionists had applied for mutation of their names on 15.10.1990. The mutation application was registered as Case No. 109/49/220. On the basis of the mutation application an order was passed on 7.6.1993 mutating the names of the applicants in place of Krishna Narain Pandey. The opposite party No. 2 in order to cause harassment to the revisionists lodged a first information report on frivolous allegations that the forged Will was prepared on the basis of power of attorney merely on the basis of an advertisement issued by the court of Naib Tehsildar in the proceeding u/s 34 of the Land Revenue Act, which discloses the date of Will as 19.11.1992. Only on account of the advertisement showing the will as 19.11.1992, the opposite party No. 2 came with a case that the executor of the Will had died on 15.12.1990 and not on 19.11.1992, therefore, the forgery has been committed by the accused/revisionists. Even after the investigation of the case the police had found the allegation made against the revisionists false and as such submitted a final report on 24.3.2000 but the final report was not accepted and further investigation was ordered and on the basis of the further investigation the police collected some materials and submitted a charge-sheet on 28.8.2000 and the Additional Chief Judicial Magistrate IV, Jaunpur took cognizance and issued summons against the applicants on 24.4.2001. The entire evidence collected by the police does not at all disclose the commission of offence. There is no evidence against the applicants that they have committed any offence of forgery in the Will dated 12.10.1990 executed by Krishna Narain Pandey only on account of some cuttings and over writing about the date of execution of Will and the date of birth of the testator (Krishna Narain Pandey), the court below found that the Will has been forged and there is manipulation in the record of the court of Naib Tehsildar.

It is further submitted by the learned Counsel for the revisionists that the cognizance taken by the court below is barred by Section 195 Code of Criminal Procedure until a formal complaint is lodged by the court itself if there is any interpolation in the record of the court but no complaint has been made by the court of the Naib Tehsildar, therefore, the cognizance taken by the court below is barred by Section 195(b)(ii) Code of Criminal Procedure Learned Counsel for the revisionists relied upon a case of the Division Bench of this Court in Ram Pal Singh v. State of U.P. and Ors. reported in 19 (1982) ACC 34 wherein the court had observed that the cognizance of offence in respect of documents which was filed before the court of Tehsildar in mutation proceeding the Magistrate was not competent to take cognizance of such an offence at the instance of a private party. He has also relied upon a case in Smt. Maharaji and Others Vs. Rama Shanker and Another, . This Court also relied upon a decision in the case of Dr. S.L. Goswami Vs. The High Court of Madhya Pradesh at Jabalpur, It has been held that cognizance of offence under Sections 467 and 471 and the offence of criminal conspiracy or abatement could be taken on a written complaint by court concerned and not on the complaint of a private person. On the basis of these two decisions the learned Counsel for the revisionists has urged that the prosecution of the revisionists by passing summoning order to face trial in the aforesaid sections is unsustainable and is liable to be set aside.

On the other hand, leaned counsel appearing on behalf of opposite party No. 2 has strenuously argued that the first information report was registered against the revisionists on account of the fact that on the basis of the forged power of attorney cuttings and interpolation had been done in the revenue record, clinching evidence that the testator had died on 15.12.1990, therefore, there was no occasion to execute any Will dated 19.11.1992 by the testator. It is further contended that the revisionists are not entitled to get any benefit of Section 195 Code of Criminal Procedure as mutation proceedings u/s 34 of the Land Revenue Act is merely a summary proceeding and not a judicial proceeding, therefore, it is not incumbent upon the Naib Tehsildar to file a complaint. The revisionists by virtue of forged will wanted to grab the property of the opposite party No. 2 who is the bona fide purchaser of the disputed property, therefore, the first information report was rightly lodged against all the revisionists. After examining the material on record the police has rightly submitted the charge-sheet and on the basis thereof the court had taken cognizance against the revisionists. Learned Counsel for the opposite party No. 2 in support of his submissions relied upon the decision of this Court reported in 1999 (90) R.D. 416 Narain Singh and Anr. v. Additional Commissioner, Meerut and Ors. wherein it has been held that any order passed in the proceedings u/s 34 of the U.P. Land Revenue Act are summary in nature. The orders passed in the said proceedings are subject to the decision of a competent court on the regular side. He has also relied upon the decision of the Apex Court reported in 2003 ACJ 1118 : AIR 2003 SCW 129 (Mahila Bajarangi (dead) through LRs. and Ors. v. Badribai wife of Jagan and Ors.) wherein it has been held that title of the parties are not decided in the mutation proceedings pending before the revenue authorities as such proceedings are not judicial proceeding in court of law. Any entries made in the land records are not made in the judicial proceedings and does not decide the question of title of immovable property. It is only the civil court who is competent to adjudicate the question of title of immovable property, therefore, there was no occasion for Tehsildar to initiate proceedings u/s 195, Code of Criminal Procedure

Having heard the learned Counsel for the parties at length, I am of the considered opinion that the court below after going through the entire evidence as collected by the Investigating Officer who had submitted the charge-sheet against all the accused/revisionists and on the basis of which reached to the conclusion that prima facie case has been made out against the revisionists and has therefore rightly taken cognizance against them. It is well settled that at the stage of taking cognizance the material collected by the Investigating Officer has to be considered only for coming to the conclusion that prima facie offence is made out or not, therefore, at this stage of summoning the revisionists meticulous analysis of material collected by the Investigating Officer by the Magistrate is not at all required. The only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused bring out a prima facie case or not. Another contention of the learned Counsel for the revisionists that bar u/s 195 Code of Criminal Procedure is attracted under the circumstances of the case is bereft of any merit and there is no good reasoning behind it, unless the document is in the custody of the court is forged the bar u/s 195 Code of Criminal Procedure will not come into play. The allegation against the revisionist is that a forged document i.e. power of attorney and Will was prepared first and then produced before the revenue authorities. It is not the case of prosecution that the document was first tendered in the court and then it was forged. Therefore the prosecution of the revisionist is not barred by Section 195 Code of Criminal Procedure The revisionists have been charge-sheeted they have got statutory alternative remedy claiming of discharge under Sections 239, 227 and 228 Code of Criminal Procedure by moving a proper application at appropriate stage and take all submissions on the discharge application before the trial court. The disputed defence of the accused cannot be considered at this stage as it would be too premature to record finding to show their innocence, it cannot be said that no offence is made out, therefore, I do no find any illegality in the order passed by the learned Magistrate in taking cognizance against the accused/revisionists. Accordingly, the revision is hereby dismissed. The interim order dated 21.5.2001 is hereby vacated. Since the matter is quiet old, therefore, the court below is expected to proceed with the case and conclude the trial as early as possible.