Ramashankar and Others vs Rajbahadur Dwivedi

N.K. Gupta, J.—The applicant has preferred the present revision against the order dated 6.2.2012 passed by the learned 4th Additional Sessions Judge, Rewa in criminal revision No. 404/2008, whereby the order dated 27.8.2008 passed by the learned JMFC, Teonthar, District Rewa (Shri Arun Kumar Singh) was set aside and the trial Court was directed to get the ''Will'' examined by the hand-writing expert and to pass a fresh order, according to law. The prosecution''s case, in short, is that, the complainant/respondent has filed a criminal complaint against the applicants for offence punishable under sections 420, 467, 468, 472 of IPC. The Magisterial Court after considering the evidence adduced under sections 200 and 202 of the Cr.P.C. registered the case for offence punishable under sections 467 and 471 of IPC and the applicants were summoned in the complaint. The matter was registered for a ''Will'', which was challenged by the complainant to be a forged ''Will''. Thereafter, the respondent adduced the before charge evidence in the case. Rajbahadur Dwivedi (P.W.1), Shambhu Prasad (P.W.2) and Vishwanath Patel (P.W.3) were examined. After considering the evidence adduced by the complainant, the learned JMFC found that the evidence adduced by the complainant is not sufficient and therefore, the applicants were discharged from the charges of offence punishable under sections 467 and 471 of IPC. In criminal revision filed by the complainant, the learned 4th Additional Sessions Judge, Rewa vide order dated 6.2.2012 set aside the order passed by the learned JMFC and remanded the case with the aforesaid directions.

I have heard the learned counsel for the parties at length.

The learned Additional Sessions Judge has committed an error of law while passing the impugned order. He could not distinguish between the stage of registration of complaint and framing of charges after considering the before charge evidence. For framing of charges, a golden yardstick is to be followed that if the evidence adduced by the prosecution is considered as it is then, if the accused can be convicted for any offence then, the charge of that offence shall be framed. There is a slight difference between the police case and the complaint case that in a police case, framing of charges is to be done on the basis of the prosecution''s evidence collected by the police, whereas in a complaint case, an opportunity of cross-examination upon the witnesses is to be given to the accused persons and thereafter, the testimony of such witnesses should have been used at the time of framing of charges. The learned Additional Sessions Judge has directed that the ''Will'' be sent for its examination from the hand-writing expert and thereafter, the matter may be decided afresh. No Court can be directed to work as a prosecution agency. It was the duty of the complainant to lead the appropriate evidence before the Court, so that evidence before charge be sufficient for framing of the charges. There was no revision against the order that the complainant had applied for examination of the document from the hand-writing expert and the trial Court has refused the same and therefore, the revisionary Court could not direct the trial Court to collect the evidence for the complainant. If the complainant was not interested to get the ''Will'' examined by any hand-writing expert then, the trial Court was not bound to do so. The trial Court was expected to proceed with the case on the basis of the evidence adduced before it, before framing of the charges.

If the entire evidence is perused then, neither the witnesses of the ''Will'' were examined, nor the signature of the deceased was compared with his standard signature. All the three witnesses have stated on oath on the basis of the suspicion. If the ''Will'' is executed in favour of someone and some legal representatives of the deceased is ousted from the property then, certainly he will not accept the ''Will'' and he will challenge that it was a forged one and therefore, by the oral evidence of such witnesses, the trial Court could not form any view in the matter. No cognate evidence was advanced that the ''Will'' was forged one.

It is true that a civil matter relating to the ''Will'' may proceed and there is no any bar of criminal proceeding if a party challenges a ''Will'' to be a forged one but, in a criminal proceeding, which was the complaint it was to be proved independently that prima facie the ''Will'' was forged. The complainant could not lead any evidence to show that the ''Will'' was forged. Mere allegations done by a person, who was ousted from the property in a ''Will'', cannot be taken as evidence against the ''Will''. It was for the complainant to examine the witnesses of ''Will'' to show that the ''Will'' was never executed before them or the signature of the deceased would have compared with the standard signature of the deceased, so that it could be established that the ''Will'' was never signed by the deceased. The complainant did not adduce such type of evidence and therefore, when the evidence was closed for the framing of the charges then, it was the duty of the trial Court to draw conclusions on the basis of the evidence adduced before it. There was no illegality or perversity visible in the order of discharge passed by the trial Court and therefore, there was no reason by which the revisionary Court could interfere in the order passed by the learned JMFC. Under such circumstances, the impugned order passed by the learned Additional Sessions Judge, by which he reversed the order of the JMFC, without any basis then, the impugned order was not according to the provisions of law. On the contrary, it was a perverse order, which cannot be maintained. There was no reason shown as to why the learned Additional Sessions Judge was making a favour of the complainant and he was directing the trial Court to work as a prosecution''s agency, whereas the trial Court was not a prosecution agency, it was an independent Court. Under such circumstances, the order passed by the learned Additional Sessions Judge cannot be maintained.

On the basis of the aforesaid discussion, the revision filed by the complainant is hereby allowed. The impugned order dated 6.2.2012 passed by the learned 4th Additional Sessions Judge, Rewa is hereby set aside by confirming the order of discharge passed by the learned JMFC, Teonthar. A copy of the order be sent to both the Courts below alongwith their records for information and compliance.