By this criminal misc petition, a prayer is made for quashing of FIR No.99/2004 registered with Police Station Patan, Sikar for offence under sections 420, 467, 468, 471 and 120B IPC.
Learned counsel for petitioner submits that allegations in the FIR are for creation of fraudulent will and its registration to get the land of the deceased. The will was subject matter of suit filed by the petitioner and has been decreed. Therein, will is held to be genuine. In view of the finding of the civil court, impugned FIR deserves to be quashed. It is in the light of the judgment of the Hon'ble Supreme Court in the case of Sardool Singh and anr versus Smt Nasib Kaur , 1987(Supp) SCC 146. Therein, while validity of will was sub judice in a suit, criminal case for the same allegation was not allowed to proceed. In the instant case, petition stands on better footing because not only the civil case was instituted but it has already been decreed in favour of the petitioner.
Learned counsel has further cited judgment of the Hon'ble Supreme Court in the case of Ram Sumer Puri Mahant versus State of UP and ors , AIR 1985 SC 472. Therein, proceeding under section 145 CrPC was not allowed during pendency of civil litigation.
A further reference of the judgment of this court in the case of Rajendra Prakash and anr versus State of Rajasthan and anr , 2011(1) CrLR (Raj) 474 has been given. It was held that in case of conflicting finding by the criminal court and civil court, finding of civil court would be binding. In view of the aforesaid, impugned FIR may be quashed.
Reference of the judgment of Hon'ble Supreme Court in the case of VM Shah versus State of Maharashtra and anr , (1995) 5 SCC 767 has also been given, where, the judgment of the civil court was given credence over the criminal court.
Learned PP has opposed the petition.
I have considered rival submissions of the parties and perused the judgments cited at the Bar.
The only ground to challenge the FIR is in reference to the decree of the civil court where the will in question was also subject matter. To appreciate the arguments and the facts, I have gone through the decree passed by the civil court. The issue No.2 was framed and is quoted hereunder for ready reference because that issue alone was referred by learned counsel for the petitioner during the course of arguments -
"LANGUAGE"
Perusal of the issue referred above does not show it to be for validity of the will. The finding of the civil court should be as per the issue framed by it. When the controversy before the civil court was not as to whether the will is forged, the issue could not have been decided. It would be further necessary to refer issue No.1 which is also quoted hereunder -
"LANGUAGE"
The issue aforesaid shows claim of the land based on adoption by deceased Totaram. If the civil court has decided the case beyond the issues framed by it, to what extent it can prevail on the criminal proceedings? In the instant case, FIR has been challenged based on the decree passed by the civil court though it is admitted that appeal against the said order has already been filed and interim order of status quo exist in favour of the complainant, thus the decree has not been made operative till date and cannot be treated as final. That is the facts situation of the case.The question now comes as to whether criminal proceedings are permissible while civil litigation is pending or decided or as to whether civil and criminal litigation can go simultaneously in regard to same allegations provided that allegations of commission of offence exist therein. The issue has been decided by Hon'ble Supreme Court holding that civil and criminal cases can go simultaneously, if the allegation of criminality exist in the FIR. Reference of the judgments of Hon'ble Supreme Court in the case of MS Sheriff versus The State of Madras and ors [AIR 1954 SC 397] and in the case of P Swaroopa Rani versus M Hari Harayan @ Hari Babu , [(2008) 5 SCC 765] are relevant. Paras 13 to 17 of the judgment in the case of P Swaroopa Rani (supra) are quoted hereunder for ready reference -
13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff v State of Madras AIR 1954 SC 397, Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 and and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants(2005) 12 SCC 226]
14. It is furthermore trite that Section 195(1) (b) (ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah (supra) stating:
25. An enlarged interpretation to Section 195 (1) (b) (ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) is either not placed for trial on account of non- filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:
The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong.
In regard to the possible conflict of findings between civil and criminal court, however, it was opined:
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....
It was concluded:
33. 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) CrPC 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.
15. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute.
16. The High Court, therefore, in our opinion, was not correct in staying the investigation in the said matter.
Reliance has been placed by Mr. Gupta on Mahar Jahan and Ors. v. State of Delhi and Ors.(2004) 13 SCC 421wherein this Court was dealing with a proceeding under Section 145 of the Code of Criminal Procedure. This Court noticed that a civil dispute was given the colour of a criminal case. As therein a proceeding under Section 145 of the Code of Criminal Procedure was pending, when a civil suit was also pending before a competent court of law, it was opined:
4. It is not disputed by the learned Counsel for the parties that this very property which is the subject-matter of these criminal proceedings is also the subject-matter of the civil suit pending in the civil court. The question as to possession over the property or entitlement to possession would be determined by the civil court. The criminal proceedings have remained pending for about a decade. We do not find any propriety behind allowing these proceedings to continue in view of the parties having already approached the civil court. Whichever way proceedings under Section 145 CrPC may terminate, the order of the criminal court would always be subject to decision by the civil court. Inasmuch as the parties are already before the civil court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit.
It was furthermore observed:
7. We have simply noted the contentions raised by the parties. The civil court, in our opinion, would be the most appropriate forum to take care of such grievances and pass such interim order as would reasonably protect the interests of both the parties. The civil court may issue an ad interim injunction, may appoint a Commissioner or Receiver or may make any other interim arrangement as to possession or user of the property which is the subject-matter of proceedings in the civil court exercising the power conferred on it by Sections 94 and 151 of the Code of Civil Procedure.
It was, therefore, a case where this Court quashed a proceeding under Section 145 of the Code of Criminal Procedure as the matter pending before it arose out of a civil proceedings. Such observations were made keeping in view the fact that possession of the parties over the property in suit was in question.
17. The impugned order, therefore, cannot be sustained which is set aside accordingly. Civil Appeal arising out of SLP (C) No. 15670 of 2006 is allowed.
Perusal of the paras quoted above reveal no bar on the simultaneous proceeding in the civil as well as criminal case or after the decree in the civil suit. It is for the reason that to prove offence in the criminal case, evidence has to be beyond doubt. If the case in hand is looked into, the issue was not even framed by the civil court as to whether will was created fraudulently. If the civil court has not framed the issue, it will have its effect on the present case also. It is more so when it is admitted case of the parties that will was got registered after death of Totaram.In the case of Sardool Singh (supra), it was held that if the validity of the will is sub judice in a suit, an allegation of will being forged, FIR cannot be instituted but in view of the subsequent judgment in the case of P Swaroopa Rani (supra) and Larger Bench judgment in the case of MS Sheriff (supra), the judgment in the case of Sardool Singh (supra) cannot be applied. Both the proceedings have been allowed simultaneously.
In the case of Ram Sumer Puri Mahant (supra) the proceeding was under section 145 CrPC thus judgment was given in reference to the provision aforesaid. Under section 145 CrPC, the issue of title cannot be decided. The provision can be invoked only in the given circumstances. The judgment aforesaid has no application to the facts of this case.
In the case of Rajendra Prakash and anr (supra) has judgment of the Hon'ble Supreme Court in the case case of VM Shah (supra) has been referred. The issue in the case of VM Shah's was in reference to section 630 of the Companies Act, 1956. Therein, the civil court decided the factual dispute holding that appellant had not come in the possession of the property through the company but has independent tenancy rights from the landlord. Taking into consideration the controversy therein and in respect of section 630 of the Companies Act, it was held that the judgment of the civil court will prevail. It is in the given facts and circumstances in reference to application of section 630 of the Companies Act and not in regard to the allegation criminality by an act or omission. The judgment in the case of VM Shah (supra) was not followed in the case of KG Premshankar versus Inspector of Police and ors , [(2002) 8 SCC 87]. Paras 32 and 33 are quoted hereunder -
32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff's case (supra)would be binding, wherein it has been specifically held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal Courts is not 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 limited purpose such as sentence or damages."
33. Hence, the observation made by this Court in V.M. Shah's case (Supra)that the finding recorded by the criminal Court stands superseded by the finding recorded by the civil Court is not correct enunciation of law. Further, the general observations made in Karam Chand's case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench inM.S. Sheriff's case as well as Sections 40 to 43 of the Evidence Act.
The issue as to whether a criminal case can proceed during pendency of the civil case has already been answered by the Hon'ble Apex Court in the specific terms in the case of KG Premshankar (supra) and would be binding on this court. It is a considered view of the Hon'ble Apex Court that mere pendency of civil litigation or initiation of it, would not debar criminal case. If the view is taken that in case of a civil litigation, criminal case cannot proceed, then it would mean that even if allegation of offence is made out, complainant would not be permitted to pursue the case separately. The aforesaid cannot be the intention of the legislature and has been considered by Hon'ble Supreme Court in the case of KG Premshankar (supra).
In view of aforesaid, it cannot be said that investigation pursuant to the FIR cannot proceed after a decree of the civil court. It is more so when it is subject matter of appeal and status quo order exist in favour of the complainant. If, today, impugned FIR is quashed in the light of the decree of the civil court and tomorrow, appeal is allowed reversing the decree of the civil court, whether FIR can be revived. This is another question to be answered by this court.
A decree, which has not attained finality, cannot be taken into consideration for quashing criminal proceedings, If such a view is taken, it would have ill consequence to the rights of the complainant to pursue criminal case.
In view of the discussion made above, I do not find that a ground is made to quash the impugned FIR at this stage. Accordingly, criminal misc. petition is dismissed.