THE HON’BLE SRI JUSTICE N. RAVISHANKAR CRIMINAL PETITION No.2494 of 2009 ORDER: In this petition ﬁled under Section 482 of the Code of Criminal Procedure, 1973 (for short Code), the petitioner herein is seeking the relief of quashing the FIR in Cr.No.51 of 2008 of I Town Police Station, Madanapalle. The said case has been registered for oﬀences punishable under Sections 415, 420, 468, 469, 470 and 471 IPC i.e., the oﬀences of forgery, cheating and creating a false document in respect of a Will deed. The petitioner herein is the accused in the said case. 2. To appreciate the point raised by the petitioner the circumstances which led to the registration of the above case should be noted. T he de facto complainant P. Chandra Sekhar and two others viz., P. Radha Krishna Murthy (father of the petitioner) and P. Naga Raj are brothers. One late Smt B. Gowrimma is said to be their paternal aunt and she had a house property at Madanapalle. The de facto complainant brought a suit i.e., O.S.No.101 of 1993 in the Court of the Senior Civil Judge, Madanapalle against his two brothers for partition of the aforesaid house property of his paternal aunt on the plea that she executed a registered gift deed dated 15.04.1996 in favour of himself and his two brothers granting them equal shares in it and that since he could not enjoy the property with his brothers, he is entitled to partition of his 1/3rd share in it. 3. The petition reads that in the above suit P. Radha Krishna Murthy who is the father of the petitioner ﬁled written statement pleading that the aforesaid Smt B. Gowrimma executed an unregistered Will dated 20.04.1981 bequeathing her aforesaid house property in favour of the petitioner and therefore the suit is not maintainable. It is also stated that following the aforesaid stand of petitioner’s father in the suit, the petitioner was also impleaded as third defendant in the suit. It would be suﬃcient to note that the de facto complainant in the said suit pleaded that the aforesaid Will was a forgery and the Court of the Senior Civil Judge ultimately decreed the de facto complainant’s suit for partition rejecting the claim of the petitioner. The exact ﬁndings in the suit are not placed before the court. 4. The petitioner says that he preferred ﬁrst appeal A.S.No.19 of 2006 on the ﬁle of the Court of the I Additional District Judge, Madanapalle, but it was dismissed on 25.08.2008 conﬁrming the judgment in the suit. He preferred second appeal S.A.No.1311 of 2008 in this Court and that is pending and it is also stated that on 05.02.2008 this Court also granted an interim order staying the passing of final decree. 5. It is mentioned by the petitioner that when his aforesaid ﬁrst appeal was pending, the de facto complainant ﬁled complaint before the JFCM, Madanapalle, alleging that the Will propounded by him is a forgery and the same was referred to police for investigation, but the concerned investigating oﬃcer ﬁled a ﬁnal report stating that the complaint dispute was of a civil nature. Despite that it is stated that the learned Magistrate again directed the concerned police to register the case and take up investigation and that is how the present Cr.No.51 of 2008 of I Town Police Station, Madanapalle, came to be registered and the police took up investigation. 6. The main plea of the petitioner is that though he lost in the suit and his ﬁrst appeal, still the question relating to the genuineness of the Will of Smt B. Gowrimma propounded by him is in issue in his second appeal and this Court has to decide about the same and till this Court decides it against him the present criminal complaint or FIR is premature and therefore, it should be quashed. The learned counsel for petitioner in support of the above plea of the petitioner relied upon a decision of this court dated 07.02.2007 in Crl.P.No.5211 of 2006 (Udari Lachulu v. The Station House Oﬃcer, Manthani P.S., Mandhani, Karimnagar District and two others). I shall refer to this decision little later. 7. On the other hand, the learned counsel for de facto complainant says that the criminal case is maintainable and investigation can go on as the petitioner has lost his case regarding the Will in the trial court and as well as the ﬁrst appellate court. He also maintained that even otherwise both civil and criminal proceedings can go on simultaneously and consequently this petition is not maintainable and this court should not interfere with the investigation. 8. The point thus is whether the present FIR in question is liable to be quashed on the ground that the second appeal ﬁled by the petitioner is pending and the FIR is premature on that ground. 9. The back ground facts which led to ﬁling of the criminal petition and the above point have already been set out. To repeat the main plea of the petitioner is that since his second appeal is pending the present complaint regarding forgery of the Will is not maintainable as that question has to be decided in the second appeal. It is clear that the petitioner is relying upon the bar contained in Section 195 of the Code though he did not speciﬁcally plead it in this petition. Section 195(1)(b)(ii) of the Code lays down that no court can take cognizance of any oﬀence described in Section 463 IPC (containing deﬁnition of forgery), or punishable under Section 471 or Section 475 or 476 of the IPC when those oﬀences or any one of them is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, except on the complaint in writing of that court or by such oﬃcer of the court as that court may authorize in writing in that behalf or of some other court to which that court is subordinate. This is one of the exceptions to the general rule that a Magistrate can take cognizance of an oﬀence on a police report or on a complaint giving information about commission of an oﬀence at the instance of anybody. 10. In fact in Surjit Singh v. Balbir Singh[1] a decision of the Supreme Court in similar circumstances it was held as follows: “It would thus be clear that for taking cognizance of an oﬀence, the document, the foundation of forgery, if produced before the Court or given in evidence, the bar of taking cognizance under Sec.195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of oﬀence unless a complaint in writing is ﬁled as per the procedure prescribed under Section 340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offence covered thereunder.” 11. In the present case the question relating to genuineness or otherwise of the Will deed propounded by the petitioner has been put in issue in the suit ﬁled by the de facto complainant and in the appeal ﬁled by the petitioner and though he lost in both those proceedings still it is in issue before this court in the aforesaid mentioned second appeal of the petitioner. Thus going by the above view expressed in Surjit Singh’s case (1 supra) the petitioner ought to succeed in this petition in view of the bar contained in Section 195(1)(b)(ii) of the Code. It should also be noted here that in another case i.e. Sachida Nand Singh v. State of Bihar[2] another full bench of the Supreme Court took a view which is contrary to the view expressed in Surjit Singh’s case (1 supra). To resolve this conﬂict the matter was placed before a larger bench of 5 Judges when the same question again arose in Iqbal Singh Marwah v. Meenakshi Marwah[3]. 12. I n Iqbal Singh Marwah’s case (3 supra) their Lordships overruled the view in Surjit Singh’s case (1 supra) and aﬃrmed the view in Sachida Nand Singh’s case (2 supra) holding that the bar contained in Section 195 of the Code relating to documents produced before a court or given in evidence would be applicable only when the oﬀences of forgery and other oﬀences mentioned in it are committed in respect of those documents when they are in custody of the court and not where such oﬀences are committed in respect of those documents before they are ﬁled into court. In Iqbal Singh Marwah’s case (3 supra) the dispute was also with regard to a Will. The party propounding the Will ﬁled an application for probate before the concerned District Court. The party opposing the Will simultaneously ﬁled a criminal complaint in the Magistrate’s court alleging oﬀences of forgery and other connected oﬀences in respect of the Will against the party propounding it. 13. The party who propounded the Will pleaded the bar under Section 195(1)(b)(ii) of the Code and pleaded that the complaint was not maintainable. The matter went to the Supreme Court ultimately and in the aforesaid case the Supreme Court laid down the above view despite the fact that the ﬁnding of the probate court with respect to the execution i.e. genuineness of the Will has to be treated as judgment in rem under Section 41 of the Indian Evidence Act, 1972. An argument was also advanced in the above case on behalf of the propounders of the Will that if simultaneous prosecution is allowed in respect of a document even though civil proceedings are pending with regard to the same between the same parties there may be conﬂicting decisions of the civil court and the criminal court on the same questions and it is only to avoid this situation the bar in Section 195 of the Code has been enacted and therefore that bar should be upheld. 14. The above contention was rejected by their Lordships in the aforesaid case by observing as follows in para-32 of the judgment. “32. 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. ……” 15. It may thus be noted that even the plea relating to conﬂict of opinions on similar questions by a civil court and a criminal court has been rejected by their Lordships in the above passage. The learned counsel for petitioner pointed out that the above decision is not applicable to his case. This contention cannot be accepted as the above decision going by the facts and the proposition of law laid down therein shows that it applies to his case and the present FIR as it relates to cognizable oﬀence of forgery which can be investigated by the police can be held to be maintainable notwithstanding the pendency of the second appeal of the petitioner in this court. 16. The petitioner’s counsel however placed reliance upon a decision of this court given in Crl.P.No.5211 of 2006 dated 07.02.2007. This decision no doubt supports the contention of the petitioner’s counsel. It may however be noted that the above decision of the Supreme Court in Iqbal Singh Marwah’s case (3 supra) which is binding on this court was not taken to the notice of this court when it decided the above criminal petition. Hence it follows that the above decision of this court cannot help the petitioner. Thus it can be said that the present FIR relating to the allegations of forgery of the Will deed propounded by the petitioner can be said to be maintainable despite the pendency of the second appeal of the petitioner in this court. 17. Then coming to the question whether allegations in the FIR disclose the oﬀences of forgery or not, a perusal of the same would show that it does contain those allegations which have to be investigated by the police. Another point raised by the petitioner’s counsel is that earlier the police ﬁled a ﬁnal report in the matter that the learned Magistrate again directed the police to register the case and investigate it and therefore the Magistrate was not right in doing so. There is no force in this contention. After the ﬁnal report was ﬁled the learned Magistrate passed the following order in it on 12.03.2008. “It is stated under what provision of law even without examining the list witnesses and even without the recording the statement of the complainant how the S.H.O. is entitled to return the complaint forwarded u/s 156(3) Cr.P.C. The S.H.O. is doth order for investigation by the competent Court simply returning the complaint without registering the case and non-examination of the list witnesses including the complainant amounting to the contempt of court by the S.H.O., concerned. You are hereby directed to register a crime and examine the witnesses as per the directions of the Hon’ble Court u/s 156(3) Cr.P.C. r/w 200 Cr.P.C.” 18. The language of the above order may not be happy. It should however be noted that the above order of the learned Magistrate shows that the investigating oﬃcer has ﬁled the ﬁnal report without doing any investigation and without ﬁnding out whether the Will deed in question does or does not contain the signature of the testatrix and therefore the Magistrate was not satisﬁed with the ﬁnal report and consequently he directed investigation and instructed the police oﬃcer concerned to do the investigation and then ﬁle his report. It should also be noted that the learned Magistrate was careful enough not to direct the police oﬃcer to ﬁle charge sheet but he only directed investigation and this was within his power. Thus the above order of the learned Magistrate, in my opinion, cannot be faulted. 19. To sum up for the aforesaid reasons it follows that this criminal petition has to fail and it is accordingly dismissed. It shall be open for the petitioner to put forward his case before the investigating oﬃcer and he shall also take into account the case of the petitioner in doing the investigation. ______________________ N. RAVISHANKAR, J 9th December 2011 CVRK [1] (1996) 3 SCC 533 [2] (1998) 2 SCC 493 [3] 2006 (1) ALT (Crl) 9 (S.C.)