1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (ABA) No. 278/2011 Sau. Shakuntala Ramswarup Sharma and five others ..Vs.. The State of Maharashtra through P.S.O. P.S. Daryapur, Tah. Daryapur, Dist. Amravati. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. V. G. Palshikar, Advocate for the Applicant Mr. S. S. Doifode, A.P.P. for the Non-Applicant Mr. N. M. Gaidhane, Advocate to Assist Prosecution CORAM : U.V. BAKRE, J. DATE OF RESERVING ORDER : 16/09/2011 DATE OF PRONOUNCING ORDER : 19/09/2011 1. This is an application for grant of anticipatory bail filed by the applicants, who apprehend their arrest in Crime No. M-Case/1/11, registered by Police Station Officer, Daryapur for the offence punishable under Sections 420, 465, 468, 471, 467 read with Section 34 of the Indian Penal Code (hereinafter referred to as the “IPC”). 2. Smt. Mohinibai Badrinarayan Sharma, Gopal Badrinarayan Sharma and Rajeshree Mukesh Sharma have filed Special Civil Suit No. 12/2010 before the Civil Judge, Senior Division, Daryapur against the present applicants no. 1 to 4 for Permanent Injunction, possession and declaration in respect of the property, which is, interalia, the subject matter of the Will dated 2 19/03/2009 allegedly executed by late Badrinarayan Sharma in favour of the applicant no. 1 whereby the property at Daryapur is bequeathed. One of the prayers in the suit is to declare that the said Will dated 19/03/2009 is false and illegal. 3. In that Special Civil Suit No. 12/2010, the plaintiffs filed application for direction to the defendants (applicants no. 1 to 4) to produce the original Will dated 19/03/2009, before the Court, as a result of which the said applicants produced it before the Court along with the registration receipt. 4. On 24/02/2011, Gopal Badrinarayan Sharma (plaintiff no. 2 of Special Civil Suit No. 12/2010) filed Private Criminal Case No. 16/2011, against the applicants, before the Judicial Magistrate, First Class, Daryapur for offence punishable under Sections 420, 465, 467, 468, 471 read with Section 34 of the IPC alleging that the applicants have forged the said Will dated 19/03/2009. 5. The learned Judicial Magistrate, First Class, Daryapur by order dated 07/04/2011, has directed the Police Inspector, P.S. Daryapur, in terms of Section 156(3) of the Code of Criminal Procedure, to register the F.I.R. on the basis of the said complaint of Gopal Sharma. Accordingly on 20/04/2011, Crime No. M-Case/1/11 has been registered by P.S.O., Daryapur against nine persons including the applicants, for offence punishable under Sections 420, 3 465, 467, 468, 471 read with Section 34 of IPC. The applicants want pre-arrest bail in the said Crime. 6. According to the applicants, the complaint under Crime No. M-Case/1/11 is barred by the provision of Section 195 (1) (b) (ii) of Cr.P.C. It is further alleged by the applicants that the said Civil Suit and the Criminal Case were filed by Gopal Sharma and others on the basis of the opinion of handwriting expert to whom the original Will was not shown and the application filed by the said plaintiffs in the special suit for referring the original Will to handwriting expert was rejected by the Civil Judge, Senior Division on 28/06/2011. 7. On the other hand, the respondent has alleged in the reply that two previous sale deeds, declaration and registered Will signed by late Badrinarayan and a certified copy of the registered Will were referred to the handwriting expert, who has submitted report dated 15/02/2010, stating that the signature on the Will does not match with the signature of Badrinarayan on the two sale deeds and declaration. It is further alleged that the plaintiffs of Special Civil Suit No. 12/2010 are the legal heirs of Badrinarayan and after his death, they became owners of the property and the applicants prepared the bogus Will on 19/03/2009 and after lapse of 9 months i.e. on 04/12/2009, all the accused persons including the applicants executed Sale Deed of deceased Badrinarayan 4 before Sub-Registrar, Daryapur thereby showing that the property mentioned therein is given to Shakuntala Sharma, the applicant No. 1. The respondents have stated that Badrinarayan was under treatment at Government Hospital, Jaipur (Rajasthan) on 19/03/2009 and was not at Daryapur. It is further alleged that the statements of witnesses have been recorded and there is strong prima facie evidence against the applicants. 8. The respondent has alleged that in order to find out as to from where and how the accused persons prepared the said bogus Will and as to who has made fictitious signature of Badrinarayan on the same, and to recover the material used for commission of offence, the custodial interrogation of the applicants is required. It is also stated that the original Will is to be recovered from the applicants. 9. Heard arguments. Mr. V. G. Palshikar, learned Advocate argued on behalf of the Applicants, Mr. S. S. Doifode, learned A.P.P. argued on behalf of the Non-Applicant and Mr. N. M. Gaidhane, learned Advocate assisted the Prosecution. 10. Perused the material. 11. Learned Advocate Mr. Palshikar has relied upon “Dr. Sandeep Sudhakarrao Gujar V/s. Dr Anil Sudhakarrao 5 Dhage” [2011(4) AIR BOM R. 779]. In the case supra, the respondent had filed Criminal Case No. 3193/2010 alleging that the applicant has obtained the post of Dental Surgeon by producing a certificate dated 20/08/2011 issued by the Dean of Government Dental College & Hospital, Nagpur wherein it was mentioned that applicant is a bonded candidate, thus alleging that the applicant committed offences punishable under Sections 199, 200 and 420 of IPC. It so happened that the dispute between the applicant and respondent was sub-judice in W. P. No. 1250/2002 wherein the same accusations were leveled against the applicant in respect of the said letter which was produced along with the submission in the pending W.P. No. 1250/2002. The learned Single Judge of this Court has held that the complaint regarding offence relating to alleged forged documents filed before Writ Court has to be signed by Competent Officer of High Court and procedure as per provision of 340 of Cr.P.C. had to be followed. It has been held that direct cognizance by Magistrate is barred by Section 195 (i) (b) (i) of Cr.P.C. 12. However, from the decision of the Hon'ble Supreme Court in “Mahesh Chand Sharma V/s State of U.P.”, reported in [(2009) 15 S.C.C. 519], it is clear that if forgery has been committed while the document was in the custody of a Court, then prosecution can be launched only with a complaint made by that Court. It has been held by the Apex Court that Section 195 (1) (b) 6 (ii) Cr.P.C. contemplates a situation where offences enumerated therein are committed with respect to a document, subsequent to its production or giving in evidence in a proceeding in any Court. 13. In the present case, it is not the allegation that the alleged forgery of the Will dated 19/03/2009 is committed after production of the same in the Court of Civil Judge, Senior Division in the said Special Civil Suit No. 12/2010. Hence, the bar of Section 195(1) (b) (ii) of Cr.P.C., is not applicable. The complaint before the learned J.M.F.C. and consequent action of the said J.M.F.C. under Section 156(3) of Cr.P.C. is prim facie legal. 14. However, the present matter involves Civil proceeding and in Special Civil Suit No. 12/2010, there is a prayer made for declaring the said Will as null and void. There is no doubt that the criminal proceeding may proceed simultaneously. However, the question is whether the applicants should be detained in custody, in the event of their arrest. 15. The learned Additional Sessions Judge, Achalpur, in the order dated 11/08/2011, in Misc. Criminal Application No. 251/2011 has observed that unless the original documents are produced before the Investigating Officer, he cannot make any progress in investigation and therefore the applicants no. 1 to 4 should produce the original documents before the Investigating 7 Officer. However, it is an admitted fact that the original documents including the Will are produced before the learned Civil Judge, Senior Division in Special Civil Suit No. 12/2010. Since, it is already known as to where the required documents are lying, the question of disclosure by applicants or any of them under Section 27 of Evidence Act and consequent recovery, does not arise. 16. Though it is alleged by the respondent that on 19/03/2009, Badrinarayan was not at Daryapur and was under treatment at Government Hospital, Jaipur (Rajasthan), however, the applicants have produced on record a certificate issued by District Hospital, Jaipur to the effect that no person by name Badrinarayan Sharma was admitted between 17/03/2009 to 19/03/2009 as per register No. 47499 or 47999. 17. It is seen that the statements of material witnesses have been recorded. The specimen signatures of the applicants would be required for sending the same for comparison to the Government Examiner of questioned documents to find out whether the will is fictitiously signed by any of them. Mr. Palshikar, learned Advocate in this regard has stated that the applicants are ready and willing to co-operate with the Investigation and to give their specimen handwriting. It is the grievance of the applicants, as contended by learned Advocate Mr. Palshikar that the applicants had gone to the Police Station but nothing was done. Appropriate 8 conditions can be imposed upon the applicants. The intervener (complainant of Crime No. M-Case/1/11) may be interested in confessional statements of the applicants being recorded by the police, while in Police custody, for using them in the Special Civil Suit. In my view, this ulterior motive, if at all is there, should not be fulfilled as the same is not required for investigation. 18. The learned Advocate Shri. Palshikar, has stated that the applicants have filed Criminal Revision Application No. 77/2011, before the learned Sessions Judge, challenging the order of the J.M.F.C. under Section 156(3) of Cr.P.C. Hence, it is hereby made clear that the learned Sessions Judge shall not get influenced by the observations made by this Court with regard to Section 195 (1) (b) (ii) of Cr.P.C., which are prima facie and made only for deciding the present application. 19. I am of the view that the applicants are entitled for anticipatory bail. 20. In the result, the application is allowed. 21. In the event of the arrest of the applicants in Crime No. M-Case/1/11 registered by P.S.O. Daryapur for offence under Sections 420, 465, 468, 471, 467 read with Section 34 of the IPC, they shall be released on bail upon execution of personal 9 recognition bond in the sum of Rs. 25,000/- each with one solvent surety in the like amount under the following conditions: - (i) The applicant/s shall attend Daryapur Police Station as and when called upon by the Investigating Officer to do so and shall co-operate with Investigation and more particularly shall give their specimen handwriting, if required, to the Investigating Officer; (ii) The applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) The applicant shall not leave India without previous permission of the trial Court. Application stands disposed of accordingly. JUDGE Punde.