IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 288 of 2005 1. Smt. Sushma W/o Shri Lokesh Kumar 2. Sri Lokesh Kumar S/o Babu Ram Both R/o Village Atmalpur-Bonga, Thana Jwalapur, District Haridwar. ...…………. Petitioners Versus 1. State of Uttarakhand 2. Puran Singh S/o Sri Bhagwana R/o Village Salempur Mehdood Thana Ranipur, District Haridwar. ...…………. Respondents Mr. Siddhartha Sah, Advocate, present for the petitioners. Mr. B.S. Parihar, Brief Holder, present for the State. None present for respondent No. 2 / complainant. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioners have challenged the summoning order dated 27.08.2003, and the proceedings of Criminal Case No. 319 of 2003, Puran Singh Vs. Lokesh and others, relating to offences punishable under Section 420, 500, 467, 468 of I.P.C., 2 pending in the court of Special Judicial Magistrate II, Haridwar. 2) Heard learned counsel for the petitioners and learned counsel for the State. None appeared on behalf of respondent No. 2, even after there being sufficient service on him. 3) Brief facts of the case are that respondent No. 2 Puran Singh (complainant), moved an application under Section 156(3) of Cr.P.C., before the Chief Judicial Magistrate, Haridwar, praying that criminal case be registered against the petitioners in respect of offences punishable under Section 420, 468, 452, 506, 467, 471 of I.P.C. It is alleged in said application (copy Annexure –1 to the present petition) that Bhagwana (father of the complainant / respondent No. 2) died in the year 1975. He had four sons, namely Balbir Singh, Puran Singh (complainant), Babu Ram and Pritam Singh. Balbir Singh died during the lifetime of Bhagwana, and his wife Premwati got re-married to Pritam Singh. She (Premwati) had daughter Sushma (present petitioner No. 1) from the first wedlock. It is further alleged by the complainant Puran Singh that Sushma got married to Lokesh Kumar (petitioner No. 2), and got a Will dated 14th of March 1975, forged purporting to have been executed by Bhagwana, to claim share in the property left by Bhagwana. The Chief Judicial Magistrate appears to have treated the 3 application under Section 156(3) of Cr.P.C. as criminal complaint, and transferred it to the court of Special Judicial Magistrate II, Haridwar. Said court, after recording the statement of the complainant under Section 200, and that of the witnesses under Section 202 of Cr.P.C., summoned the present petitioners, namely Sushma and Lokesh Kumar, to face the trial in respect of offences punishable under Section 420, 500, 467, 468 of I.P.C., vide impugned order dated 27.08.2003. The petitioners moved an application dated 21.03.2005, before the trial court (copy Annexure –3 to the petition), praying their discharge in the trial. The trial court vide its order dated 27.04.2005, dismissed their application. Hence, this petition. 4) The respondent No. 2 / complainant did not turn up before this court even after being personally served to controvert the averments made in the affidavit filed with the petition, as such, the averments made in the affidavit filed with the petition remain uncontroverted before this court. It is the proceeding of the criminal complaint case which is under challenge before this court. Learned counsel for the petitioners submitted that it is an abuse of process of law on the part of the complainant to question the validity of a Will dated 14th of March 1975, after a period of 28 years, without any explanation as to why the same was not questioned earlier. There is no suit filed by the complainant for cancellation of the Will. Rather, the petitioners have 4 filed the Will before the Consolidation authorities in a dispute with the respondent No. 2 / complainant, and the Consolidation authorities are seized of the matter, as to whether the Will in question is genuine, or not. In Tukaram Vs. Machindra Y. Patil, 2001 CRI. L.J. 1164, the Apex court has held that in a matter where the competent authority is examining the validity of a document, a criminal court should not proceed with the private complaint, relating to said document. 5) For the reasons as discussed above, this petition under Section 482 of Cr.P.C., is allowed. Without expressing any opinion as to genuineness of the ‘Will’, and without prejudice to the rights of the parties, the proceedings of the Criminal Complaint Case No. 319 of 2003, Puran Singh Vs. Lokesh and others, pending in the court of Special Judicial Magistrate II, Haridwar, relating to offences punishable under Section 420, 500, 467, 468, are hereby quashed. (Prafulla C. Pant, J.) Dt. August 19, 2010. H. Negi 5