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Ved Prakash And Others v. State Of U.P. And Another - APPLICATION U/s 482 No. - 7453 of 2006 [2007] RD-AH 16010 (25 September 2007)

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Criminal Misc. Application No.7453 of 2006

Ved Prakash and others Vs. State of U.P. and another

Connected with

Criminal Misc. Application No. 7165 of 2006

Satya Prakash Vs. State of U.P. and another

Hon'ble R.K.Rastogi,J

Both these applications under section 482 Cr.P.C. have been filed for quashing the order dated 17.5.2006 passed in Crl. Case No. 86/04, Chandra Prakash Vs. Om Prakash and others pending in the court of Judicial Magistrate Court no. 17, Jaunpur as well as the order dated 28.4.06 passed by the revisional court.

The facts relevant for disposal of these applications are that the complainant opposite party no. 2 filed an application under section 156(3) Cr.P.C. against the accused Om Prakash, Satya Prakash, Ved Prakash , Pyare Lal , Akhilesh Chandra Gupta and Ram Ji Gupta with these allegations that one Kanhaiya Lal son of Sri Ram Nath had executed a Will of his property in favour of Mohan Lal , father of the complainant Chandra Prakash and this property was inherited by him and his brothers. Accused Om Prakash and others threatened to interfere with their possession over the property and so the complainant filed a regular suit against them . Then accused Om Prakash prepared a fictitious Will of Kanhaiya Lal in collusion with some witnesses and scribe. This Will dated 25.2.1977 was totally a forged document . The complainant came to know about this document for the first time on 17.5.2004 then he went to the police station to lodge F.I.R. but his report was not written there, then he moved the application 156(3) Cr.P.C.

On the above application learned Magistrate passed an order directing the police to register a case and to get it investigated . Then the police after registration of the case, investigated the same but submitted final report in the case. The complainant opposite party no. 2 filed a protest petition. The Magistrate passed an order for treating the protest petition as complainant and passed an order summoning the accused after recording statements of the complainant and his witnesses under sections 200 and 202 Cr.P.C.

Aggrieved with the above order Chandra Prakash complainant filed Criminal revision No. 106 of 2006. This was heard and decided by the learned Sessions Judge , Jaunpur vide his judgement and order dated 28.4.2006. He set aside the order passed by the learned Magistrate and remanded the matter to the Magistrate to pass a fresh order in the matter after hearing the parties.

In compliance of the above order , the learned Magistrate passed order rejecting the final report and directed the police to reinvestigate the matter. Aggrieved by the order passed by the learned Sessions Judge 28.4.06 and the order of the learned Magistrate dated 17.5.06 the present application under section 482 Cr.P.C. has been filed.

A counter affidavit on behalf of opposite party no. 2 Chandra Prakash in Criminal Misc. Application no. 7165/06 has been filed . No counter was filed in Criminal Misc. Application no.7453 of 2006 in spite of personal service of opposite party no. 2 who is the same person in both the applications.

I have heard the learned counsel for both the parties and have perused the record.

Learned counsel for the applicant submitted before me that a civil suit was pending in respect of the Will, and the above Will in favour of the accused persons has not yet been declared to be void by any court and so the prosecution of the applicants for preparation of forged Will was not proper at this stage in the absence of any finding of any competent court that Will was forged. In support of his contention he cited before me the rulings of Hon'ble Supreme Court in Sardool Singh and another Vs. Smt. Nasib Kaur : 1987 (Supp) S.C.C. 146, Uma Shankar Goalika Vs. State of Bihar and another : (2005)10 SCC 336 and of this Court in Shakuntala Devi Vs. State of U.P. and others : [2002(45) ACC 1091].

Before referring to these rulings , I have to point out that both these applications filed by the applicants are premature. An application under section 156(3) Cr.P.C. was moved against them by the opposite party no.2 and on the basis of the order passed by the learned Magistrate a case was registered against them but the police after investigation submitted final report holding that no case was made out against the accused persons. The Magistrate did not accept that final report but treated the protest petition as complaint and passed an order for recording statements of the complainant and witnesses under section 200 and 202 Cr.P.C. Aggrieved with that order the complainant went in revision and the revisional court while setting aside the order passed by the Magistrate passed an order that the matter should be reheard and decided by the Magistrate in the light of the observations made by him in the body of the judgement. Thereafter the learned Magistrate rejected the final report and passed order for reinvestigation by the police.

The position, in this way , is that at present no proceeding against the accused is pending before the court and an application under section 482 Cr.P.C. can be filed only when a charge sheet is submitted against the accused persons and cognizance is taken . That stage has not yet come. As such the present applications under section 482 Cr.P.C. filed by the accused applicants are premature and are not maintainable at this stage and so they are hereby rejected.




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