ORDER [ENTITY], J.
1. Through this misce. petition, petitioners seek quashment of the [CASE NUMBER] of [ENTITY], Bikaner and the proceedings of [CASE NUMBER] pending in the Court of Addl. Chief Judicial Magistrate No. 3, Bikaner Under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION], [ACT].
2. The facts of the case may be put in narrow compasections On 27-12-93 [ENTITY] lodged a written report to the Superintendent of Police, Bikaner stating that her husband [ENTITY] had purchased a plot in Soor Sagar, Bikaner on 22-7-88 by a registered sale deed and he was doing his business on the two shops constructed thereon but on 2-5-92 he expired and [ENTITY] (brother of her husband) and [ENTITY] (father of her husband) forcibly took possession of the shops and they have fabricated a false document alleged to have been executed in their favour by her husband late [ENTITY] on 12-8-88. This report was sent to the S.H.O., [ENTITY] where [CASE NUMBER] was registered. During the investigation, the police on coming to know that a civil suit was already pending in respect of the shops, made a request to the Civil Court for handing over the document filed in the case. The learned District Judge directed the delivery of the document to the police which was sent to the Forensic Science Laboratory for examination and report from where it was reported on 31 -10-94 that the disputed signatures 'Ql' to 'Q3' on agreement were not of [ENTITY] and they were forged signatures. Consequent upon the completion of the investigation, the police submitted a challan against the petitioners.
3. There was one development in between the period the document was delivered by the District Judge to the police and the report of the F.S.L. was received. The order of the District Judge dt. 4-3-94 directing the delivery of the document to the police was challenged in this Court by way of [CASE NUMBER] which was allowed by this Court on 5-4-94 without notice to the respondent. It was held that the District Judge had erred in giving the document to the police without the permission of the High Court which was required under [SECTION] of the [ACT]. This Court directed the police to deposit the document in the Court of district Judge. Consequent upon the order of this Court, the District Judge directed the police to deposit back the document within two days but the same could not be deposited as it had already been sent to the F.S.L.
4. Mr. [ENTITY], learned counsel for the petitioners contended that since the alleged forged document had already been filed in the Court of District Judge the cognizance for the offences Under [SECTION], [SECTION], [SECTION] could be taken only on written complaint of the Court as is provided in [SECTION], [ACT] and the cognizance taken on the challan filed by the police is liable to be quashed. In support of his contention he cited the case of [ENTITY] v. [ENTITY], (1983) 4 SCC 240: 1983 Cri LJ 1599. His further contention was that as the document had already been filed in the Civil Court, only that Court could adjudicate whether the document was forged one and the police had no power to investigate the case. In support of this contention, he cited the case of [ENTITY] v. State of Rajasthan, 1998 Cri LR (Raj) 100. Mr. [ENTITY] urged that since this Court had held in the civil revision that the District Judge had erred in handing over the document to the police and the document be re-deposited the investigation on the document was illegal and challan could not be filed on the basis of such investigation.
5. The learned P. P. and Mr. [ENTITY], on the other hand, contended that the forgery is not alleged to have been committed after the document was filed in the Court, and therefore, the bar of [SECTION], [ACT] does not apply to this case. In support of their contention they cited the case of [ENTITY] v. State of Bihar 1998 SC 1121 : 1998 Cri LJ 1565. They canvassed that the ruling of [ENTITY], ([PRECEDENT] (supra) does not hold field in view of the decision in the case of [ENTITY] (supra). Mr. [ENTITY] pointing out that the point at issue in the case of [ENTITY], (1998 Cri LR (Raj) 100) (supra) was very different and contended that the ruling of [ENTITY] (supra) was not brought to the notice of the learned single Judge who decided the case of [ENTITY] (supra). His further contention was that it may be that there was irregularity in giving the document to the police but that would not undo the offence which has been committed by the petitioners and the proceedings of the case wherein the allegation are that the accused who are brother-in-law and father-in-law had forged document to deprive the widow of the property left by her husband should not be quashed.
6. I have given my thoughtful consideration to the submissions. Undisputedly it is not the case where the forgery is alleged to have been done when the document was in the custody of the Court. The Apex Court in the case of [ENTITY] v. State of Bihar, (1998 Cri LJ 1565) (supra) had clearly [ENTITY] down that the bar contained in [SECTION] [ACT] is not applicable to the cases where the forgery of the document was committed before it was produced in a Court. Their lordships observed that for the application of the bar of [SECTION] the offence should have been committed during the time when the document was in custodia legis. It is significantto point out that in this three single Bench ruling the case of [ENTITY] ([PRECEDENT] (supra) which was decided by two Hon'ble Judges was considered. Their lordships noticed that the case of [ENTITY] (supra) was decided on the basis of law [ENTITY] down in the cases of Patel [ENTITY] v. State of Gujarat AIR 1971 SC 1935 : 1971 Cri LJ 1437 and [ENTITY] v. High Court of M.P. AIR 1979 SC 437 : 1979 Cri LJ 193. It was observed as follows:
The forgery alleged in [ENTITY]'s case took place during the period when the document in question was in the custody of the Court and in such a case the bar under [SECTION] would certainly apply. But with great respect, we are unable to agree that the ratio in [ENTITY] would support the conclusion reached in [ENTITY]'s case [PRECEDENT].
7. It is obvious that the view taken in the [ENTITY]. [ENTITY] (supra) relied on by Mr. [ENTITY] was not approved by their Lordships. The legal position thus is that the bar of [SECTION] [ACT] does not apply if the forgery was committed before the document was produced in the Court. There is, therefore, no merit in the contention of Mr. [ENTITY] that cognizance of the offence could not be taken on the basis of the challan filed in the case.
8. In the case of [ENTITY] v. State, (1998 Cri LR (Raj) 100) (supra) the learned single Judge has taken the view that after the civil Court comes to the conclusion that the document was a forged one it could proceed Under [SECTION], [ACT] and file criminal complaint Under [SECTION], [ACT] In my opinion this judgment cannot be said to have [ENTITY] down the law that cognizance cannot be taken on the basis of challan filed in respect of a document if the forgery was committed before the document was filed in the Court.
9. Coming to the third contention, it may be stated that on the basis of the order of this Court dt. 5-4-94 in [CASE NUMBER] the proceedings of the pending case cannot be quashed. It is evident that by the time the S.H.O. got intimation of the order of this Court dt. 5-4-94 he had already sent the document for examination to the FSL. It was, therefore, not possible for the S.H.O. to deposit the document within two days as directed by this Court. It is pertinent to point out that this Court had not restrained the police from holding investigation in the matter. In my opinion, on the basis of the irregularity that the District Judge had handed over the document to the police for investigation without the permission of this Court, the investigation does not get vitiated. In any case once the cognizance of the offence has been taken by the Magistrate the same cannot be quashed on that ground. This Court cannot be justified in quashing the cognizance on such technical ground in a case where the document was forged by none-else but the father-in-law and the brother-in-law of the first informant widow to deprive her of the property left by her husband.
10. On a careful consideration of the entire material on record, I do not find that it is a case where there is abuse of the process of the Court when the petitioners are facing trial.
11. Consequently, the petition being devoid of merit, is dismissed.