IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 710/2005 (Under Section 482 of the CrPC) Kripal Singh & Another …….Applicants Versus State of Uttaranchal & Another ……Respondents Ms. R.P. Nautiyal, Advocate, for the applicants. Mr. P.S. Bohara, Brief Holder, for the State. Mr. Deep Chandra Joshi, Advocate, for the respondent no. 2. With CRIMINAL MISCELLANEOUS APPLICATION No. 818/2006 (Under Section 482 of the CrPC) Pritam Singh & Another …….Applicants Versus State of Uttaranchal & Others ……Respondents Mr. Deep Chandra Joshi, Advocate, for the applicants. Mr. P.S. Bohara, Brief Holder, for the State. Mr. R.P. Nautiyal, Advocate, for the private respondent no. 2. 28th November, 2011 Hon’ble Servesh Kumar Gupta, J. Both these petitions are being adjudicated by this single judgment and order because the subject matter giving rise to these petitions is the same i.e. the vast agricultural land bearing khasra no. 87/1/2, area 3.035 hectares, and khasra no. 90/1/2, area 2.023 hectares, total area 5.058 hectares, situated in village Sakhanpur, Tehsil Ramnagar, District Nainital. 2. The aforesaid land was originally owned by Smt. Resham Kaur, wife of Pritam Singh. She was settled along with her husband in England. Making the said land the subject matter, two WILLS were allegedly executed by Smt. Resham Kaur, one was executed on 19.5.1977 in England itself in favour of her husband Pritam Singh, while another WILL was 2 allegedly executed on 22.10.1999 in favour of her grandson Gurcharan Singh Bagedia, son of Harbans Singh. Two criminal complaints were filed, one by Pritam Singh against Gurcharan Singh, Kripal Singh and Amreek Singh. Kripal Singh and Amreek Singh were the witnesses of the WILL dated 22.10.1999, allegedly executed by Smt. Reashm Kaur in favour of Gurcharan Singh in Ramnagar, District Nainital. Second complaint was filed by Harbans Singh against Nirmal Singh, Pritam Singh and Dharminder Singh, son of Pritam Singh. Nirmal Singh is the holder of power of attorney of Pritam Singh and he looks after the land, in question, at the spot. Dharminder Singh is the son of Pritam Singh. In other words, this is the duel between the father and his one son Dharminder Singh on the one hand, while Harbans Singh and his son Gurcharan Singh (son and grandson respectively of Pritam Singh) on the other hand. The pivot of this contest is the vast agricultural land, as detailed above. 3. Pritam Singh filed probate litigation in the High Court at England and got the proper probate from there on the basis of the WILL dated 19.5.1977. That probate got transferred through the Embassy of England situated in India to Tehsil Ramnagar. So, his name was mutated under the Land Revenue Act showing him the owner of the said land, while the claim of Gurcharan Singh was found to be false by the competent authority. The WILL allegedly made in his favour was found to be forged. 4. Subsequently, a criminal case no. 571/2005 was initiated by Pritam Singh for the offences of Section 120B, 467, 468, 471 IPC as stated above. Pritam Singh examined himself under Section 200 CrPC on the date of filing of the complaint itself i.e. on 28.5.2005 and his witnesses Nirmal Singh and Dharminder Singh were also examined under Section 202 CrPC on the same day. Thereafter the learned 3 Magistrate passed the order of cognizance dated 4.6.2005 against the accused persons asking them to stand trial. A protest petition was filed by the accused persons on 5.9.2005, which was rejected by the Judicial Magistrate, Ramnagar. So, petition no. 710/2005 was filed by Kripal Singh and Amreek Singh before this Court challenging the order of cognizance dated 4.6.2005 as well as the entire proceedings of the impugned case. 5. On the other hand, when Harbans Singh noticed that a complaint has been filed by Pritam Singh against his son Gurcharan Singh and two witnesses of the WILL dated 22.10.1999, then as a counterblast, he initiated criminal case No. 864/2005 against Pritam Singh and others as stated above. This complaint was filed even after institution of the petition no. 710/2005 by Kripal Singh and Amreek Singh, wherein this Court, vide order dated 18.10.2005, stayed the order of cognizance. After obtaining the stay order against the order of cognizance passed in criminal case no. 571/2005, this criminal case no. 864/2005 was filed on 27.10.2005, wherein Harbans Singh examined himself under Section 200 CrPC and his witnesses Kulwant Singh and Jernail Singh were examined under Section 202 CrPC. Thereafter the Magistrate took the cognizance vide order dated 3.4.2006, against which the petition no. 818/2006 has been filed and this Court was pleased to stay the proceedings of the impugned criminal case vide its order dated 19.10.2006. 6. Having heard the learned Counsel for the parties and after going through the papers on record, this much is clear that the WILL executed by Smt. Resham Kaur on 19.5.1977 in favour of her husband Pritam Singh was a genuine one, and having been found so, the proceeding under the Land Revenue Act has been adjudicated by the competent authority in favour of Pritam Singh. At the same time, another 4 WILL dated 22.10.1999 in favour of Gurcharan Singh (grandson of Pritam Singh) was found to be fabricated and false. So, his claim was overturned by the competent authority. 7. The above facts are enough to infer that the complaint case no. 864/2005 is just a counterblast based on wrong facts, and this is quite an abuse of the process of Court. 8. Learned Counsel for the respondent Harbans Singh argued that in the petition no. 818/2006, the prayer has been made to quash the order of cognizance dated 3.4.2006, but the said order, which has been annexed as Annexure 13 to the petition, is not the exact order of cognizance. This contention is not acceptable because any numerical or clerical mistake in drafting the petition can be ignored by the Court. Besides in the second part of prayer clause of the petition, it has also been prayed to pass any other order or direction, which this Court may deem fit and proper in the circumstances. 9. It has also been contended on behalf of Harbans Singh that if the WILL dated 22.10.1999 was found to be forged, then it was for the competent court to lodge the complaint under Section 340 read with Section 195 CrPC. This contention is also not acceptable because the forgery was committed out of the court. The provisions of Section 340 read with Section 195 CrPC can only be attracted when the forgery is made while the matter is subjudice in the court and the document is on the record of the court. 10. It has also been contended that Pritam Singh has filed the complaint through his power of attorney Nirmal Singh. But it is not the case. Virtually the complaint was filed by Pritam Singh himself on 28.5.2005 and he has also signed the said complaint. His statement was also recorded in the 5 court under Section 200 CrPC. This is enough to infer that Pritam Singh is the complainant. Since he resides in England, hence just to pursue his litigation, he has mentioned the name of Nirmal Singh, who is his cousin brother, as his power of attorney. If this complaint persists further, then it will be Pritam Singh who will have to appear in the witness box for examination under Section 244 CrPC. So, on this score also, the contention of the learned Counsel of Harbans Singh does not have any substance. 11. For the reasons recorded above, this Court finds that petition no. 710/2005 is bereft of merit and is liable to be dismissed, whereas petition no. 818/2006 has substance and the same deserves to be allowed. 12. Resultantly, the petition no. 710/2005, filed by Kripal Singh and Amreek, challenging the order of cognizance dated 4.6.2005, passed by the Judicial Magistrate, Ramnagar, District Nainital in Criminal Case No. 571/2005, Pritam Singh v. Gurcharan Singh Bagedia & Others, under Section 120B, 467, 468, 471 IPC, is hereby dismissed. Stay order dated 18.10.2005, passed by this Court in Petition No. 710/2005, stands vacated. Another petition no. 818/2006, filed by Pritam Singh and Dharminder Singh, is allowed. The impugned order of cognizance dated 3.4.2006, passed by the Judicial Magistrate, Ramnagar, District Nainital in Criminal Case No. 864/2005, Harbans Singh v. Nirmal Singh & Others, under Section 120B, 420, 467, 468, 471, 504, 506 IPC, and the entire proceedings of the said case are hereby quashed. 14. Registry is directed to inform the court concerned accordingly. (Servesh Kumar Gupta, J.) 28.11.2011 Prabodh