CR.MA/442319/1997 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4423 of 1997 With CRIMINAL MISC.APPLICATION No. 1507 of 1998 with CRIMINAL MISC.APPLICATION No. 2281 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SUMITRABEN WIDOW OF RAMUJILAL VYAS & 5 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR BHARAT K DAVE for Applicant(s) : 1 – 6. MR BB NAIK for Applicant(s) : 4 - 6. MS FALGUNI PATEL, APP for Respondent(s) : 1, MR BM GUPTA for Respondent(s) : 2, MR TS NANAVATI FOR MR UNMESH D SHUKLA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA Date : 25/11/2008 COMMON ORAL JUDGMENT 1.One Gargiben, widow of Rajankumar Vyas, CR.MA/442319/1997 2/7 JUDGMENT had filed a complaint before DCB Crime Police Station, Ahmedabad, for the offences punishable under Secs.465, 467, 498-A and 114 of IPC which has been registered as DCB Crime Police Station C.R.No.I-0019 of 1997 on 25-7-1997 wherein investigating officer started investigation. Meanwhile, the applicants Nos.1 to 6 of Cri.Misc.Appln.No.4423 of 1997 against whom complaint has been lodged by Gargiben had filed the petition under Sec.482 of the Code of Criminal Procedure for quashing of the complaint in question mainly on the ground that husband of Gargiben, Rajanbhai Vyas, who died on 7-11-1993 had executed a Will on 12-6-1993 in Ahmedabad City and Civil Misc. Application No.645 of 1996 had been filed by Jayvardan Ramujilal Vyas praying for probate. On knowing about the said application having filed, the original complainant had filed the present complaint alleging against all six accused making serious allegations. 2.The main contention raised by the learned counsel for the respective parties is that it is a civil dispute between the parties and civil proceedings are pending in the City Civil Court at Ahmedabad. Over and above, for the same reason, Sumitraben, CR.MA/442319/1997 3/7 JUDGMENT mother-in-law of Gargiben, had also filed a substantive suit being Civil Misc. Application No.1317 of 1998 for declaring her as the legal heirs of her husband. Gargiben had also filed a suit being Civil Suit No.2251 of 1997 and all the three proceedings are pending in the City Civil Court at Ahmedabad. It is required to be noted that Sumitraben died during the pendency of aforesaid civil suit. 3.The present applicants, original accused, Cri. had filed Cri.Misc.Appn.No.4423 of 1997 for quashing of the complaint in question wherein stay has been granted by this Court against the investigation and is still pending. 4.Whereas one of the accused namely Djayvardanbhai Ramujilal Vyas, who is not an applicant in the case, had separately filed Cri.Misc.Application No.1507 of 1998 for quashing of the complaint in question wherein also, stay has been granted by this Court against the investigation and is still pending. 5.Whereas after obtaining a stay against investigation, one of the accused i.e. Dahyabhai Ramanbhai Patel had filed one complaint for the offence under Sec.500 of IPC against the complainant of this complaint i.e. Gargiben directly into the CR.MA/442319/1997 4/7 JUDGMENT Court of learned J.M.F.C., Vansda, numbered as Criminal Case No.208 of 1999 wherein process has been issued. Against the said order, Gargiben had also preferred Cri.Misc.Application No.2281 of 2000 wherein also stay has been granted against further proceedings. 6.All these matters could not be heard for a considerable long period of 10 years. Today all these matters have been listed in my Court. 7.As common questions of facts are involved in all these matters, at the joint request and with the consent of the learned counsel for the respective parties, all these matters are heard together and are being decided by this common judgment. 8.Heard Mr.B.B.Naik with Mr.B.K.Dave for the original accused of DCB Crime Police Station C.R.No.I-0019 of 1997, Ms.Falguni Patel, learned APP for the State and Mr.T.S.Nanavati for Mr.Unmesh D.Shukla for the original complainant-Gargiben of DCB Crime Police Station C.R.No.I-0019 of 1997 as well as original accused in Criminal Case No.228 of 1999 in the Court of J.M.F.C., Vansda. Learned counsel for the respective parties have extended full co- operation in disposing of the matters. 9.The only contention raised by the learned CR.MA/442319/1997 5/7 JUDGMENT counsel for the respective parties is that it is admittedly a civil dispute which is pending in the City Civil Court Ahmedabad. 10.Learned counsel, Mr.B.B.Naik has placed reliance on a case reported in 1987 (Supp) Supreme Court Cases 146 in the case of Sardool Singh and Another Vs. Smt.Nasib Kaur wherein the Apex had held that “when a question regarding validity of a Will is sub judice, criminal prosecution on the allegation of the Will being a forged one cannot be instituted”. It has been held in para 2 of the said judgment as under: “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. That 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 CR.MA/442319/1997 6/7 JUDGMENT 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.” 11.The aforesaid judgment fully covers the say of the applicants. Admittedly, the dispute is of civil nature which are pending and during the pendency of the civil suit, complainant tried to convert the same into criminal one. Simultaneously, complaint filed by Dahyabhai is also nothing but a counter- blast that too also to pressurize for getting proper result in favour of others in civil matter. 12.Keeping in mind the above aspects, the complaint filed by Gargiben being DCB Crime Police Station C.R.No.I-0019 of 1997 and complaint filed by Dahyabhai Ramanbhai Patel being Criminal Case No.228 of 1999 filed in the Court of learned J.M.F.C., Vansda, are required to be quashed and set aside and are hereby CR.MA/442319/1997 7/7 JUDGMENT quashed and set aside. All the three applications stand disposed of accordingly. Rule is made absolute. 13.As far as the allegation regarding Will is concerned, Court below is at liberty to initiate any proceedings, if at the end of civil dispute, court comes to the conclusion and this judgment will not come in the way of parties in the same. 14.Office shall place a copy of this judgment in each matter. (R.P.DHOLAKIA,J) radhan/