THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3091 of 2008 (Dated : 13-08-2010) Between: Md. Abdul Rahman and others …Petitioners A n d The State of A.P through S.H.O., P.S.Matwada, Warangal rep. By the Public Prosecutor High Court of A.P., Hyderabad. …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3091 of 2008 ORDER: This Criminal Petition has been taken out under Section 482 Cr.P.C. by A-1, A-3, A-5 and A-6, namely, Md. Abdul Rahman, Masooda Begum, Md. Ahmed Jhani and Md. Amjad in C.C.No.835 of 2008 on the file of I Additional Judicial First Class Magistrate, Warangal with a prayer to quash the proceedings therein. 2. Background facts, in nutshell, are:- Respondents 2 to 6 are related to petitioner No.1 as brothers and sisters. They filed a private complaint in the Court of I Additional Judicial First Class Magistrate, Warangal alleging inter alia that the house bearing Municipal No.4-9-10, 4-9- 14, 4-9-16 of Kumarpally locality of Hanamkonda, Warangal is the property owned by their grandfather namely Abdul Razaq. The said house property was inherited by their father namely Abdul Gafoor being the only son of the said Abdul Razaq. Abudl Gafoor died in the year 1978 and thereafter the said house property devolved upon respondents 2 to 6 and the petitioner No.1. It is the version of the respondents 2 to 6 that the petitioner No.1, in order to deprive their due share, grabbed the said house property. Despite several demands made by them, the petitioner No.1 did not agree for partition of the house property which made respondents 2 and 3 to institute a suit for partition and the suit being O.S.No.49 of 1999 on the file of the II Additional Senior Civil Judge, at Warangal ended in decree and a preliminary decree came to be passed. The petitioner No.1 and his brother preferred an appeal against the judgment and decree and the said appeal is pending. Petitioner No.2 who is the wife of petitioner No.1 filed a suit being O.S.No.10 of 2002 on the file of the Principal District Judge, at Warangal for declaration of her title right in respect of the house property and for cancellation of the preliminary decree passed in O.S.No.49 of 1999. The said suit ended in dismissal and thereupon, the petitioner No.2 filed an appeal and the said appeal is pending disposal. It is the version of the complainants that the petitioners fabricated the sale deed in favour of the 2nd petitioner to deprive their legitimate share in the suit property. According to the complainants (respondents 2 to 6), the petitioners are instrumental in removing the marriage certificate and papers from the marriage register of 1963, so as to destroy the evidence with regard to date of marriage between petitioner No.1 and petitioner No.2 (A-1 and A-3). It is the case of the complainants(respondents 2 to 6) that the sale deed in favour of the 2nd petitioner herein allegedly executed by M.Yara Buchaiah A.Dharmaiah and Munavar Ali has been pressed into service to deprive their legitimate shares. By the date of alleged sale deed, there was no marriage between the petitioner Nos.1 and 2. That petitioners 3 and 4(A-5 and A-6) asked the complainant No.1 (respondent No.2) to come to Shalimar Café opposite to KMC, Warangal for settlement of disputes. He went to Shalimar Cafe for discussion with petitioners 3 and 4 and thereupon, they took him forcibly to beside lane of Shalimar Cafe and abused him in filthy language and beat him and snatched Xerox copy of the marriage certificate and warned him with dire consequences in the event of his resorting to file complaint before the police. 3. The complaint filed by respondents 2 to 6 came to be forwarded to the Station House Officer, Matwada. Along with the complaint, the following documents have been enclosed and they are:- i) Copy of the preliminary decree in O.S.No.49 of 1999 dated 9.4.2001 ii) Copy of the plaint in O.S.No.10 of 2002 dated 8.4.2002 iii) Copy of deposition of witnesses of Pw-1 (A-3) dated 19.3.2004 in O.S.10 of 2002 iv) Copy of simple sale deeds scribed by A-4 v) Chief affidavit of A-4 in O.S.No.10 of 2002 dt.12.8.2004 vi) Letter from A.P. Archeries Department, Hyd to D.L.S.A., Warangal. vii) Copy of marriage certificate issued by Dargah, Khazipet dated 19.5.1963. viii) English translation copy of marriage certificate dated 19.5.1963 4. The Station House Officer, Matwada P.S on receipt of the complaint forwarded by the Judicial First Class Magistrate under Section 156(3) Cr.P.C registered a case in Crime No.42 of 2008 under Section 352, 406, 417, 423, 464, 420 and 426 IPC and Section 200 Cr.P.C and issued F.I.R. After due investigation, the Sub Inspector of Police, Matwada filed a charge sheet before the I Additional Judicial First Class Magistrate, Warangal. The learned Magistrate took the charge sheet on file as C.C.No.835 of 2008. Hence, this petition by A-1, A-3, A-5 and A-6. 5. Heard learned counsel appearing for the petitioners, learned counsel appearing for the respondents 2 to 6 and learned Additional Public Prosecutor appearing for the 1st respondent- State. 6. Learned counsel appearing for the petitioners submits that the validity or otherwise of the sale deeds pressed into service by the 2nd petitioner is sub judice since the appeal filed by the 2nd petitioner is pending adjudication. A further submission has been made that even the preliminary decree passed in O.S.No.49 of 1999 is subject matter in A.S.No.2131 of 2001, and therefore, it is too early to say whether the sale deeds pressed into service by the 2nd petitioner are fabricated to deprive the legitimate rights of respondents 2 to 6-complainants. He would also contend that the respondents 2 to 6-complainants resorted to file private complaint so as to compel the petitioners to settle the civil disputes. A further contention has been advanced that Section 195(1)(b)(ii) of Criminal Procedure Code mandates that it is the concerned Court that has to file a complaint in the event of any action is to be initiated in respect of a document which is stated to be fabricated and used in evidence. According to him, initiation of criminal proceedings on the complaint of respondents 2 to 6 in respect of a document allegedly fabricated and used in evidence is contrary to the provisions of Section 195(1)(b)(ii) of Criminal Procedure Code and therefore, they are liable to be quashed. In support of his submission reliance has been placed on the decision of the Supreme Court in Parminder Kaur v. State of U.P [1]. 7. In Parminder Kaur’s case ( 1 supra), the Supreme Court held that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge , the same may be quashed in exercise of its inherent power u/s 482 Cr.P.C. 8. Learned counsel appearing for the respondents 2 to 6- complainants submits that the finding recorded by the civil Court with regard to the sale deeds pressed into service by the petitioner No.2 is crystal clear that they are fabricated and the same have been used to claim the property and in which case the trial Court is justified in taking cognizance of the offences under Sections 352, 406, 417, 423, 464, 420 , 426 IPC and 200 Cr.P.C. In support of his contentions, learned counsel placed reliance on a decision of the Supreme Court in Iqbal Singh Marwah v. Meenakshi Marwah[2], wherein, the Supreme Court held that Section 195 is not a penal provision but is part of procedural law, namely, Code of Criminal Procedure which elaborately give the procedure for trial of criminal cases. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by Court. The principle that a penal statute should be strictly construed, therefore, has no application. Paras 24 and 25 of the cited judgment needs to be noted and they read thus:- “24. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras MANU/SC/0055/1954 : [1954]1SCR1144 give a complete answer to the problem posed : "(15) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. (16) Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished." 25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. 9. I have gone through the complaint filed by the respondents 2 to 6 and also the charge sheet filed by the Sub Inspector of Police, Matwada P.S in Crime No.42 of 2008. The complaint presented by respondents 2 to 6 are in two parts. The first part relates to fabrication of the sale deeds in favour of petitioner No.2 herein (A-3) and 2nd part is concerned with regard to the incident occurred on 01.7.2007. There are two suits in respect of the property in dispute, one suit being O.S.No.49 of 1999 filed by 2nd respondent-complainant No.1 for partition and separate possession of his share in the suit schedule properties. A preliminary decree has been passed in his favour in the year 2001. Another suit being O.S.No.10 of 2002 filed by petitioner No.3 claiming that the house property exclusively belongs to her since she purchased the same under sale deeds executed by M.Yara Buchaiah A.Dharmaiah and Munavar Ali. The said sale deeds have been marked as Exs.A-1 to A-3 in the said suit. Ultimately, the suit being O.S.No.10 of 2002 ended in dismissal. The aggrieved parties in both the suits carried the matter in appeals and the appeals are stated to be pending. 10. It is also brought to my notice that the defendants in O.S.No.49 of 1999 obtained interim stay of passing final decree. Therefore, the finding recorded by the civil Court with regard to the genuineness of the sale deeds pressed into service by the petitioner No.2 herein has not reached finality. With regard to the 2nd incident said to have been occurred on 1.7.2007, the role ascribed is to petitioners 3 and 4 (A-5 and A-6). The relevant portion of the complaint attributable to the incident occurred on 1.7.2007 reads as hereunder:- “ That the complainant further submit that one month back the Accused Nos.1, 2, 3, 5, 6 and 7 all are came to know about the existence of CC of marriage certificate of A-1 & A-3 which was rested with the complainant No.1, Accused No.5 & 6 informed the complainant No.1 to come to Shalimar Café, Opp: KMC, Warangal, and after verifying the marriage certificate they assured the complainant NO.1 that, they will settle the issue before elders, as such he relied on the sweet words of A5,A6 he went to Shalimar Café evening on 1-7-2007 then they took the complainant No.1 forcibly to beside lane of Shalimar Café and by using filthy language, they manhandled the complainant No.1, they (A5,A6) beated the complainant No.1, on chest,thigh and hands and forcibly took away Xerox copy of marriage certificate, they also seriously warned the complainant No.1 that if he lodged any complaint before police station, they will not spare him and his family. Even though the complainant No.1 being uneducated tried to lodge a police complaint before the P.S.,Matwada but, they did not care him, the complainant No.1 also afraid of his brothers i.e., A1 & A2, they may use financial and political influence for which enquiry may not be done on whole case. Hence the complaint preferring this case before this Hon’ble Court for proper adjudication. The case may be referred to concerned police for investigation and punish the accused as per law”. 11. The police during the course of investigation examined the elders who tried to settle the dispute between the parties. They have been shown as Lws. 6 to 9 in the charge sheet. With regard to the 1st part of the allegation, there is no finality with regard to the genuineness of the documents pressed into service by the petitioner No.2-A-3. Therefore, the criminal prosecution basing on such seriously contentious issues before Civil Court make me to infer that the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the petitioners herein with a view to spite them due to private and personal grudge. 12. With regard to the second part in the complaint said to have occurred on 1.7.2008, the police have investigated the matter and found substance in the accusation and filed charge sheet. The participation in the 2nd part of the incident is attributable only to two accused persons, namely A-5 and A-6, who are petitioners 3 and 4 in the petition. In that view of the matter, they have to necessarily face a trial with regard to acquisition leveled against him in respect of the incident said to have occurred on 1.7.207. Therefore, this Criminal Petition is partly allowed quashing the proceedings against petitioners 1 and 2 (i.e., A-1 and A-3) in C.C.835 of 2008 on the file of the I Additional Judicial First Class Magistrate, at Warangal. The petition with regard to petitioners 3 and 4 (i.e., A-5 and A-6) is dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.13-8-2010 RAR [THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3091 of 2008 (Dated : 13-08-2010) [1] 2009(13) SCALE [2] AIR 2005 SUPREME COURT 2119