IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.5792 of 2009 1. RAVI SHABKAR PANDEY @ MUNNJI, S/O LATE HARIHAR PRASAD PANDEY, R/O VILLAGE DHAWDAR, P.S. SASARAM(M), DISTRICT ROHTAS AT PRESENT R/O MOHAL CIVIL LINES, G.P. ROAD, SASARAM, DISTRICT ROHTAS 2. MOHAN SINGH, S/O LATE RAM ASHISH SINGH 3. MUTUR SINGH, S/O LATE GURU CHARAN SINGH 4. RAM LOCHAN SINGH, S/O LATE GOPICHAND SINGH 5. CHANDRAMA SINGH, S/O LATE RAM ASHISH SINGH 6. RAM TAHL SINGH, S/O LATE TIRA SINGH 7. SARSWATI DEVI, W/O HARINARAIN SINGH 8. LAHASO DEVI, W/O SUKHARI SAH ALL RESIDENTS OF VILLAGE DHAWDWAR, P.S. SASARAM (M), DISTRICT ROHTAS .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. SAROJ PANDEY, S/O LATE ANIRUDH PANDEY, R/O VILLAGE DHAWDWAR, P.S. SASARAM (M), DISTRICT ROHTAS .. OPPOSITE PARTIES **** /3/ 07.12.2010 Heard the counsel for the parties. 2. This criminal miscellaneous petition has been filed against the order, dated 15.01.2009, passed by Shri S.J. Husain, Sessions Judge, Rohtas at Sasaram, whereby and where under the Criminal Revision No. 296 of 2008 has been dismissed confirming the order, dated 15.09.2008, passed by the Chief Judicial Magistrate, Rohtas, by which a cognizance has been taken for offence under Sections 467 and 471 of the Indian Penal Code. 2 3. The prosecution case, as alleged in the complaint case the complainant is the motawalli of the Trust in the name of Thakur Radha Krishnajee, but, the accused persons in conspiracy has sold and purchased the land of the Trust and it is alleged that four registered deed of sale were executed by accused, Ravi Shankar Pandey, in favour of accused, Mohan Singh, Mutur Singh, Ramlochan Singh, Chandrama Singh, Ram Tahal Singh, Smt. Sarswati Devi and Smt. Lahaso Devi and the rest accused persons are the witnesses of said sale deed, thus, stated that Ravi Shanker had no right to sell the land. The complainant has right to sell the land and on the basis of complaint the cognizance has been taken under Sections 467 and 471 of the Indian Penal Code. 4. The learned counsel for the petitioners, however, contended that the offence under Sections 467 and 471 of the Indian Penal Code is not made out even if taking the allegation true on the face value of the complaint petition. However, Section 467 of the Indian Penal Code is regarding the forgery of valuable security of will and Section 471 of the Indian Penal Code is using as genuine a forged document. However, Section 467 of the Indian Penal Code 3 define that whoever forged a document (or a will or an authority to adopt a son or which purports to give authority to any person to make or transfer any valuable security or to receive principal interest) etc. shall be purchased and Section 471 of the Indian Penal Code defined as whoever fraudulently and dishonestly uses as genuine any document he knows or believe to be a forged document, hence, Section 467 and 471 of the Indian Penal Code comes into play when document is forged. Sections 467 and 471 of the Indian Penal Code is quoted here : “ 467 : Forgery of valuable security, will etc :-- Whoever forges a document which purports to be a valuable security or a ill, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”. 4 “471 : Using as genuine a forge [document or electronic record] – Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]”. 5. However, from the perusal of Sections 467 and 471 of the Indian Penal Code it appears that a person who forged a document and uses a forged document as genuine, fraudulently and dishonestly is unable for purchase and the question for consideration whether the document created is a forged document. However, forgery has been defined under Section 463 of the Penal Code that whoever makes any false document or false electronic records or part of document or electronic records with intent to cause damage or undue to public or to any person or to support any claim or file or to cause any person to part with property or enter into any express or implied contract with intent to commit fraud or that fraud my be committed, commits forgery. However, to commit a false document is defined in Section 464 of the Indian Penal Code. 6. In definition of false document, three clauses or 5 conditions have been mentioned to hold a document as false document, the first, if a person sign, seal or execute a document or part of a document with intention causing it to be believed that such document has been executed by a person by whom or by whose authority he knows that it was not made, i.e., after a document has been executed or signed by a person who is not an authority to sign the document. The second clause that if a person makes an alteration in a document then it is called a false document. The third condition is that whoever dishonestly and fraudulently cause any person to sign or alter knowing that such person by deception or reason of unsoundness of mind or intoxication can not know the content of the document. However, the three conditions for making a document as false document defined in Section 464 of the Indian Penal Code does not come within the ambit of whatever alleged. It is not alleged that in the document signed by person who has no authority to sign further there is no allegation that any alteration in the document has been made and there is no allegation that the document was prepared by deceiving the person by administering intoxication or due to unsoundness of mind could not know the nature of content of the deed nor there is 6 allegation that the deed has been executed by impersonating and, hence, that being the position, in fact, the allegation made does not come under the definition of Section 464 of the Indian Penal Code to make a false document. However, when the allegation made does not come under the definition of creating a forged and false document then Section 467 and 471 of the Indian Penal Code does not make out under the fact alleged. More over, the case of the claimant that he executed the sale deed claiming to be the son of Harihar Prasad Pandey and claiming the land belonged to him and there is no allegation about impersonation. However, when the respective claim of the parties with regard to right over the land and the right of the land can not be decided by a criminal Court. More over in paragraph 10 of the statement made in the petition it is stated that a title suit is pending before the Sub Judge, Sasaram, with regard to the fact that petitioner no. 1 was adopted by Harihar Prasad Pandey. The dispute is that whether the land belonged to the Trust or a question of title to be decided by a Civil Court and the criminal Court can not decide the title and, hence, having regard to the fact that if no offence is made out as alleged and more over the cognizance taken under Sections 467 and 7 471 of the Indian Penal Code is not made out then allowing the prosecution would be an abuse of the process of the Court and the Court has no jurisdiction to take cognizance if on the allegation does not make out an offence. However, it is true that second revision is barred, but, under the facts and circumstances the impugned order itself is beyond jurisdiction and when the fact remains that taking the allegation on the face value does not make out then allowing the prosecution to continue would be an abuse of the process of the Court and in the interest of justice the criminal prosecution can not be allowed to be continued when no offence is made out. 7. Hence, Having regard to the facts and circumstances the order of the revisional Court as well as the order of the Magistrate confirmed by the revisional Court is hereby set aside and the application is allowed. S.A. ( Gopal Prasad, J.)