Smt. Abha vs State of Uttaranchal and Others

Servesh Kumar Gupta, J.—This application has been moved to invoke the powers of this Court u/s 482 of Code of Criminal Procedure with the prayer to set aside the summoning order dated 14.2.2003 passed in criminal complaint case No. 2853 of 2002, Ganga Prasad v. Smt. Abha Agarwal and further to quash the order dated 26.7.2005 passed in criminal revision No. 41 of 2003 by the Additional District & Sessions Judge/IV FTC, Dehradun.

Backdrop of the criminal complaint is that there is some dispute of ownership over a residential house between Ganga Prasad and Smt. Abha Agarwal. Ganga Prasad, the complainant (opposite party No. 3) claims the ownership over the residential house situated in Dehradun city on the basis of succession being the grandson of one Sri Dinanath, who expired on 10.9.1970 while Smt. Abha Agarwal claims the ownership of the house on the basis of a will, allegedly executed by Sri Dinanath on 7.7.1970, which is almost two months before he expired. Smt. Abha Agarwal claims herself to be the tenant in one portion of the house ever since in the life of Sri Dinanath and she states that due to the service extended by her in the old age of Sri Dinanath, the bond of love strengthened between the two and since Sri Dinanath had no legal heir to succeed, executed the alleged will on dated 7.7.1970 in favour of Smt. Abha Agarwal, who was living in the house as a tenant along with her husband.

When Sri Dinanath breathed his last, Sri Ganga Prasad Sharma claimed the ownership of the house as a sole owner of the sole daughter of Sri Dinanath.

A civil suit No. 738 of 1999 was filed by Smt. Abha Agarwal against Sri Ganga Prasad Sharma for declaration and permanent injunction and that suit was decreed in favour of Smt. Abha Agarwal. Sri Ganga Prasad Sharma was restrained not to interfere in the peaceful possession of Smt. Abha Agarwal and the latter was declared the owner of the property in dispute by Civil Judge (Senior Division) Dehradun on the basis of the will in question.

Sri Ganga Prasad Sharma, finding no other recourse, filed a criminal complaint case No. 2853 of 2002 in the court of Chief Judicial Magistrate, Dehradun against Smt. Abha Agarwal for the offence of Sections 467 and 420 IPC with the allegation that Smt. Abha Agarwal has fabricated a forged will in her favour to grab the house in question. In that criminal complaint case, after recording the evidence u/s 200 and 202 Code of Criminal Procedure, the cognizance was taken by the Magistrate and Smt. Abha Agarwal was ordered to be summoned for the offence u/s 420 IPC.

Smt. Abha Agarwal filed a criminal case in the court of Sessions Judge, Dehradun which was dismissed mainly on the ground that on the basis of law laid down by the Hon''ble Apex Court in the case of "Adalat Prasad v. Roop Lal Jindal 2004 (2) U.C. 1236", no revision lies against the order of cognizance being it an interim order and the only remedy lies by filing petition u/s 482 Code of Criminal Procedure

Smt. Abha Agarwal has filed this criminal miscellaneous application u/s 482 Code of Criminal Procedure, wherein further proceedings in the criminal complaint case were stayed.

I have heard learned Counsel for the parties and perused the entire material available in the file.

As far as the law laid down in the Adalat Prasad''s case (Supra), it has been discussed by this Court in the case of Dinakar Khosla v. A.K. Mehta and Ors. reported in 2010 (2) N.C.C. 140, in criminal revision No. 770 of 2001, wherein the judgment was delivered on 8.4.2010. In the said case, it was held that the order passed u/s 203 Code of Criminal Procedure and the order passed u/s 204 Code of Criminal Procedure are two facets of the same coin. By adopting the course of Section 203 of the Code, the case gets decided finally. While adopting the course u/s 204 of the Code, the case proceeds further. In such a situation, if the aggrieved party challenges the summoning order and succeeds in his case, the criminal complaint would get dismissed and the case would stand finally decided. Therefore, revision is maintainable against the order passed u/s 204 of Code of Criminal Procedure by the Magistrate. It was also held that having gone through the precedent in Roop Lal Jindal''s case (Supra), there is not a single word in the above case which says that the revision is not maintainable before the Sessions Judge u/s 397 of the Code. What has been said by the Hon''ble Apex Court is that an order of summoning the accused can be quashed by the High Court in its power u/s 482 of Code of Criminal Procedure There is no ratio decidendi that where petition u/s 482 Code of Criminal Procedure is maintainable before the High Court, revisional power cannot be exercised by the Sessions Judge.

Thus, it is clear that the learned Sessions Judge has restrained to exercise his power u/s 397 Code of Criminal Procedure under some misconception, however since the petition u/s 482 Code of Criminal Procedure is also maintainable in this Court, hence there is no bar for this Court to adjudicate the matter.

Sri Piyush Garg, learned Counsel for the Petitioner has relied upon a judgment of the Hon''ble Apex Court in the case of "Sardool Singh and Anr. v. Smt. Nasib Kaur reported in 1987 (Supp) SCC 0146 SC". This case is very much identical with the facts in case, wherein the position was as follows: -

A civil suit between the parties is pending wherein the contention of the Respondent is that no Will was executed whereas the contention of the Appellants is that a Will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The Civil Court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture, the Respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. The question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the Respondent to prosecute the Appellants on this allegation when the validity of the Will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur V. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts.

In another identical position, Uttarakhand High Court also in the case of "Sri Anup Kumar Khatri and Ors. v. Smt. Hirdi Devi in C-482 Application No. 691 of 2010 decided on 8.9.2010" has also opined that if the question between the two parties is to decide the genuineness or the forged ness of the will, then it is always in the interest of justice that the question, if pending in front of a civil court, then criminal proceedings should be stayed. Normally, there is no bar. The civil and criminal proceedings can run concurrently in different courts and civil and criminal liabilities can be determined on side by side. Merely for the reason that the dispute is under lis in a civil court, the criminal court cannot be restrained to determine the penal liability of the delinquent. But here, in the present case in hand, when the sole question for adjudication between the parties is regarding the forged ness or genuineness of the concerned will, then criminal proceedings should wait till the matter is finally adjudicated by the civil court. It is all the more in a situation when the matter has been adjudicated by the Civil Judge (Senior Division) Dehradun in O.S. No. 738 of 1999 and it has gone in favour of Smt. Abha Agarwal.

The arguments advanced by the learned Counsel for opposite party No. 3-Ganga Prasad Sharma is that at the time of alleged execution of will, Smt. Abha cannot be said to be the wedded wife of her husband Shri Ram Singh and at the same time, tenant also of late Sri Dinanath because if her date of birth, as per her own document is believed, then it is 15.3.1960, which adverts that at the lifetime of Sri Deenanath (Testator), she was only 10 years old women and being so, she can neither be a wedded wife of Shri Ram Singh in this minor and tender age nor she can be a tenant of Sri Dinanath, while she states to have been serving Sri Dinanath for a couple of years back. Even she might have served for an year or two, before the execution of will on 7.7.1970, the facts are not believable because 8 or 9 years'' child cannot render so devouted services to late Sri Dinanath as to make him please and strengthen the bond of love and affection to the extent of execution of will in her favour. However, these facts and arguments are not to be looked into under this petition filed u/s 482 of Code of Criminal Procedure and the same are left for adjudication by the civil court.

The fact remains that the matter has been decided by the Civil Judge (Senior Division) Dehradun on dated 17.2.2007 in favour of Smt. Abha Agarwal. Although the appeal is pending, that is a continuation of the civil proceedings and still this matter is to be adjudicated upon by some higher court. So in these circumstances, this Court is of the view that presently, criminal proceedings cannot be allowed to run against Smt. Abha Agarwal. It is made clear that if the findings of the civil court comes against Smt. Abha Agarwal, then the opposite party No. 3 will be at liberty to launch a criminal prosecution against Smt. Abha for the offence of forging the will in question, either through filing a complaint case or lodging a first information report under appropriate penal sections. It is also further made clear that any observation of this Court will not affect the findings of either the civil court or the criminal court below.

For the reasons aforementioned, this petition has got force. Hence, the criminal miscellaneous application No. 939 of 2005 is allowed. The proceedings of criminal complaint case No. 2853 of 2002, Ganga Prasad v. Smt. Abha Agarwal, pending in the court of Chief Judicial Magistrate, Dehradun or any Magistrate court in Dehradun are quashed.