Mr. N. L. Jadhav, Advocate for the v. Bhadane, APP for
Facts
12-**Cri-WP-1548-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD12 CRIMINAL WRIT PETITION NO. 1548 OF 20241]Yahiya Abdulla MakraniAge: 72 years, Occu.Agri.,2]Khaled s/o Abdulla Makrani,Age: 70 years, Occu: Agri.,3]Zuber s/o Abdulla MakraniAge: 60 years, Occu: Agri.,4]Talha Abdulla Makrani,Age: 54 years, Occu: Agri.,5]Numan Abdulla MakraniAge: 50 years, Occu: Household,All R/o. Manjarsumba Road, Patoda,Tq: Patoda, Dist. Beed.6]Zubeda W/o Idris BashanAge: 78 yrs, Occu: Household,R/o: Ambad Tq. Ambad,Dist. Jalna … PETITIONERS (Orig. Accused)VERSUS1]The State of MaharashtraThrough Police Inspector,Police Station, Patoda2]Mahemuda w/o Hasan KardusAge 55 years, Occu: Household,R/o Patoda, Tq. Patoda,Dist. Beed … RESPONDENTS (R.No.2 Orig.Complainant) 1 of 13 (( 2 ))12-**Cri-WP-1548-2024.…Mr. N. L. Jadhav, Advocate for the Petitioners Mr. C. V. Bhadane, APP for Respondent N.1 Ms A. N. Ansari, Advocate for Respondent No.2 .…CORAM: Y. G. KHOBRAGADE, J.DATE:25.11.2024ORAL JUDGMENT :- 1.Heard Mr. N. L. Jadhav, the learned Counsel for thePetitioners, Mr. Bhadane, the learned APP for Respondent No.1 andMrs A.N. Ansari, the learned Counsel for Respondent No.2. 2.Rule. Rule made returnable forthwith. Heard finally byconsent of both the sides. 3.By the present Petition, the Petitioner impugned the orderdated 02.08.2014, passed by the learned Sessions Court in CriminalRevision Application No.14 of 2014, thereby confirmed the orderdated 26.02.2024 passed by the learned J.M.F.C., Patoda, wherein theprocess as against the present Petitioners are issued under Section468 and 471 read with Section 34 of the I.P.C. 4.Having regard to the submissions canvassed on behalf ofboth the parties, I have gone through the record. The Respondent 2 of 13
Legal Reasoning
(( 9 ))12-**Cri-WP-1548-2024need not contain detailed reasons. A reference in this respectcould be made to the judgment of this Court in the case ofSunil Bharti Mittal vs. Central Bureau of Investigation, whichreads thus: “51. On the other hand, Section 204 of the Code dealswith the issue of process, if in the opinion of theMagistrate taking cognizance of an offence, there issufficient ground for proceeding. This section relates tocommencement of a criminal proceeding. If theMagistrate taking cognizance of a case (it may be theMagistrate receiving the complaint or to whom it hasbeen transferred under Section 192), upon aconsideration of the materials before him (i.e. thecomplaint, examination of the complainant and hiswitnesses, if present, or report of inquiry, if any), thinksthat there is a prima facie case for proceeding in respectof an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant orrefusal of process and it must be judicially exercised. Aperson ought not to be dragged into court merely becausea complaint has been filed. If a prima facie case has beenmade out, the Magistrate ought to issue process and itcannot be refused merely because he thinks that it isunlikely to result in a conviction. 53. However, the words “sufficient ground forproceeding” appearing in Section 204 are of immenseimportance. It is these words which amply suggest thatan opinion is to be formed only after due application ofmind that there is sufficient basis for proceeding againstthe said accused and formation of such an opinion is tobe stated in the order itself. The order is liable to be setaside if no reason is given therein while coming to theconclusion that there is prima facie case against the 9 of 13 (( 10 ))12-**Cri-WP-1548-2024accused, though the order need not contain detailedreasons. A fortiori, the order would be bad in law if thereason given turns out to be ex facie incorrect.”29. A similar view has been taken by this Court in the case ofAshoke Mal Bafna (supra). 30. In the present case, leaving aside there being no reasons insupport of the order of the issuance of process, as a matter offact, it is clear from the order of the learned Single Judge of theHigh Court, that there was no such order passed at all. Thelearned Single Judge of the High Court, based on the record,has presumed that there was an order of issuance of process.We find that such an approach is unsustainable in law. Theappeal therefore deserves to be allowed.”13.Per contra, the learned APP canvassed that thecomplainant made a specific averments in the complaint about herforged signature on Rs.100/- stamp paper, as well as signature of hersister Salma, who is residing Abroad, showing that both the sistershave consented and executed consent deed for mutation the names ofthe accused with the revenue authorities, though they have not putsuch signature at any time before. Therefore, substantial evidence isrequired to prove whether the consent deed is forged or genuine.Therefore, the order passed by both the Courts below, are just andproper and no interference is called at the hands of this Court, hence,prayed for dismissal of the Petition. 10 of 13 (( 11 ))12-**Cri-WP-1548-202414.The learned Counsel for Respondent No.2 supported thefindings of both the Courts below. She contended that there is nodispute about execution of consent deed in the year 1981 and 1991about the relinquishment of right of the complainant. However, thesaid consent deed/relinquishment deed was in respect of all theagricultural land only. However, Respondent No. 2 claimantspecifically made allegations that, on 04.02.2015, the Petitioneraccused submitted an application with the Talathi, Patoda andsubmitted consent letter showing the name of the complainant atserial No.10 and her sisters name at serial No.9 and put their forgedsignature thereon. Therefore, the act of the accused persons is illegaland they have committed the offence under Section 420, 468 of I.P.C. 15.No doubt, though the complainant prayed for inquiryunder Section 156(3) of Cr.P.C. However, on 11.10.2011, the learnedJ.M.F.C. declined inquiry under Section 156(3) of Cr.P.C. and calledupon the complainant for verification of the complaint. Accordingly,the complainant/Respondent No.2 appeared before the Court andtestified the averments made in the complaint. The complainant alsoexamined Taher Hasan Bin Kardus, son of the complainant and aftersatisfaction, the learned trial Court again called the report from the 11 of 13 (( 12 ))12-**Cri-WP-1548-2024concerned Police Station under Section 202 of Cr.P.C. On 19.05.2022,the Investigating Officer of Patoda Police Station, submitted inquiryreport and after considering the said report, the process issuedagainst the present Petitioners for the offence punishable underSections 468, 471 read with 34 of the I.P.C. 16.No doubt, the present Petitioners/accused, tested thelegality and validity of the order passed by the learned JudicialMagistrate in Criminal Revision No.14 of 2024. On 02.08.2024, thelearned Sessions Court dismissed the said revision on the ground thatthe genuineness of consent-deed cannot be tested without evidenceand the order of issuance of process cannot be quashed on oralcontention of the accused. So also, the complaint is within limitation.17.In the case in hand, the learned Magistrate firstlydeclined to direct inquiry under Section 156(3) Cr.P.C. and had calledupon the complainant for verification. Thereafter, the learnedMagistrate called inquiry report under Section 202 Cr.P.C., and aftersatisfying with the said report, process has been issued against thepresent applicant accused. Though the learned Counsel for thePetitioners contended that the complainant has already filed Civil SuitNo.73 of 2018 for the same cause, therefore, the criminal complaint is 12 of 13
Arguments
(( 3 ))12-**Cri-WP-1548-2024No.2 lodged a complaint Misc. Criminal Application No. 145 of 2020and made the specific allegations that her father Abdulla Bin SayedMakrani, died on 01.01.1994. She and the accused/presentPetitioners are having common interest in the landed property left byher father deceased Abdulla Bin Sayed Makrani. The description ofthe property is given in Clause (A), (B) of paragraph 2 of thecomplaint. However, after the death of her father Mr. Abdulla BinSayed Makrani, her name as well as all the sons and daughters ofAbdulla Bin Sayed Makrani, mutated with the Revenue Authoritiesunder Entry No.14781. The said property never partitioned formetes and bounds. So also, a civil suit bearing Special Civil SuitNo.73 of 2008 is pending on the file of the learned Civil Judge SeniorDivision, Beed. However, on 04.02.2015, the accused have put forgedthe signature of the accused No.9 and executed consent-deed forrecording the mutation entry, though the complainant and Salma, thesister of the complainant never consented. Mrs. Salma is residing inArab Country. Therefore, the complainant prayed for inquiry underSection 156(3) of Cr.P.C. 5.On 11.10.2021, the learned J.M.F.C. Pachod, rejected theprayer for inquiry under Section 156(3) of Cr.P.C. and placed the 3 of 13 (( 4 ))12-**Cri-WP-1548-2024matter for recording of verification under Section 200 of Cr.P.C.Thereafter, the complainant herself entered into witness box anddeposed about the contents of the complaint. The complainantfurther examined one witness Mr. Taher Hasan Bin Kardus, whodeposed about putting false and bogus signature of his mother onRs.100/- stamp paper, so also, the said stamp paper never beenpurchased in the name of her mother. The report was lodged with thepolice, but no such report was accepted. Considering the nature ofoffence, on 03.03.2022, the learned J.M.F.C. passed an order underSection 202 of Cr.P.C. and called the police report. Accordingly, on19.05.2022, the Investigating Officer submitted report, stating aboutforge signature of Salma on Rs.100/- stamp paper. So also, thesignature of the complainant is forged.6.On the basis of said report, the learned J.M.F.C. passed anorder on 26.02.2024 and issued process as against the presentPetitioner accused for the offence punishable under Sections 468 and471 read with 34 of the Indian Penal Code. The Present Petitioneraccused filed Criminal Revision No.14 of 2024, challenging the orderdated 26.02.2024 passed by the learned J.M.F.C. below Exh.1 inCriminal Misc. Application No.145 of 2020. On 02.08.2024, the 4 of 13 (( 5 ))12-**Cri-WP-1548-2024revisional Court passed the impugned order and dismissed therevision holding that whether the consent deed is forged or genuinehas to be adjudicated during the course of trial and process cannot bequashed on oral contention of the accused. Since the trial Courtissued the process against the present Petitioner accused for theoffence under Section 468 and 471 read with Section 34 of I.P.C.wherein the maximum punishment is provided upto 7 years andpunishment upto 2 years for the offence punishable under Section465. Therefore, as per Section 468 Cr.P.C. the limitation is providedthree years for taking cognizance, if the offence is punishable withimprisonment for a term exceeding one year, but not exceeding threeyears. Since the process issued against the accused under Section 468of I.P.C., wherein imprisonment upto 7 years provided, therefore, thecomplaint is not barred by limitation and the order of issuance ofprocess does not fault. 7.The learned Counsel for the Petitioners canvassed that,the Respondent No.2 original complainant has already filed R.C.S.No.71 of 2018 for the same purpose, for which the complaint hasbeen filed. Therefore, the cognizance on the complaint of RespondentNo.2 cannot be taken. However, both the courts below failed to 5 of 13 (( 6 ))12-**Cri-WP-1548-2024consider the said fact. Hence, the impugned orders are illegal, bad inlaw and prayed for quash and set aside the same. 8.In support of these submissions, the learned Counsel forthe Petitioner places reliance on the case of Gulam Abbas Vs. HajiKayyum Ali , 1973 AIR (SC) 554, wherein, the Hon’ble SupremeCourt in paragraph Nos. 11 and 12 has observed thus:-“11.It may be mentioned here that Muslim Jurisprudence,where theology and moral concepts are found sometimesmingled with secular utilitarian legal principles, contains a veryelaborate theory of acts which are good (because they proceedfrom 'hasna'), those which are bad (because, they exhibit"qubuh"), and those which are neutral per se. It classifies themaccording to 'varying degrees of approval or disapprovalattached to them (see Abdur Rahim's "MuhammadanJurisprudence" P. 105). The renunciation of a supposed right,based upon an expectancy, could not, by any test found there,be considered "prohibited". The binding force in 'future of sucha renunciation would, even according to strict MuslimJurisprudence, depend upon the attendant circumstances andthe whole course of conduct of which it forms a part.. I In otherwords, the principle of an equitable estoppel, far from beingopposed to any principle of Muslim law will be found, oninvestigation, to be completely in consonance with it.12.As already indicated, while the Madras view is basedupon the erroneous assumption that a renunciation of a claimto inherit in future is in itself illegal or prohibited by Muslimlaw, the view of the Allahabad High Court, expressed bySuleman, C.J., in Latafat Hussain’s case (supra) while fullyrecognising that "under the Mahomedan law relinquishment byan heir who has no interest in the life- time of his ancestor is 6 of 13 (( 7 ))12-**Cri-WP-1548-2024invalid and void", correctly lays down that such anabandonment may, nevertheless, be part of a course of conductwhich may create an estoppel against claiming the right at atime when the right of inheritance has accrued. Afterconsidering several decisions, including the Full Bench of, theMadras High Court in Asa Beevi’s case (supra) Suleman, C.J.,observed at page 575:” 9.It further relied on the case of Shripad & Others Vs. TheState of Maharashtra & Others, 2014 AllMR (Cri) 2123, wherein thecoordinate Bench of this Court in paragraph 12, observed thus:-“12. Govind Ramchandra Deshmukh, Accused No.6, who hasfiled Criminal Writ Petition No.163 of 2010, claims that thecomplaint does not make any specific allegation against him toprosecute him. The only allegation against Accused No.6Govind Deshmukh is that he has filed Civil Suit against thecomplainant and others and he got the notice registered withthe Sub Registrar. The Petition refers to the contents of thecomplaint to show that no case was made out against AccusedNo.6. It is claimed that Magistrate should have seen that exceptsome vague, general statements, there was nothing againstAccused No.6 to make him face the criminal prosecution.Accused No.6 Govind Deshmukh was not party to any of thesale deed in favour of the complainant and his witnesses, norhe was made aware about execution of the same. The onlyallegation made against Accused No.6 is that on 14th August2007, he conspired with Accused No.4 Shripad Deshmukh andgot registered notice under Section 52 of Transfer of PropertiesAct. Conspiracy has been alleged only on such basis. Onlybecause Accused No.4 Shripad Deshmukh was witness in thenotice, does not amount to commission of offence. It is not thecase of the complainant that before execution of the sale deed,the complainant has taken consent of Accused No.6 GovindDeshmukh or had issued any public notice. For such reasons, 7 of 13 (( 8 ))12-**Cri-WP-1548-2024Accused No.6 Govind Deshmukh has also claimed that theprocess issued against him, needs to be quashed.”10.It further relied on the case of Prabhakar RamchandraPatki Vs. The State of Maharashtra & Another, 2010 AllMR(Cri) 784,however, this case is not at all applicable to the facts andcircumstances of the present case and does not fall within the ambitof public servant. 11.The learned Counsel for the Petitioner further relied onthe case of Kinnaresh Trimbak Borkar Vs. State of Goa & Anr., 2021AllMR (Cri) 4064, wherein the process issued for the offence underSections 441, 506 read with Section 34 and 107 of I.P.C. quashed andset aside on the ground of lack of jurisdiction and failure to followprocedure under Section 202 (1) of Cr.P.C. 12.It further relies on the case of Lalankumar Singh & OrsVs. State of Maharashtra, 2022 LiveLaw (SC) 833, wherein theHon’ble Apex Court observed in paragraph Nos. 28 to 30, as under:-“28. The order of issuance of process is not an empty formality.The Magistrate is required to apply his mind as to whethersufficient ground for proceeding exists in the case or not. Theformation of such an opinion is required to be stated in theorder itself. The order is liable to be set aside if no reasons aregiven therein while coming to the conclusion that there is aprima facie case against the accused. No doubt, that the order 8 of 13
Decision
(( 13 ))12-**Cri-WP-1548-2024not tenable. However, on perusal of prayer of the suit, it appears thatthe present complainant who is the co-sharer has prayed for decree ofpartition and possession. In the said suit, the complainant has notprayed for declaration that the consent deed executed and theapplication for deletion of the name of the complainant and her sisterby the accused persons, are illegal. On the contrary the complainantspecifically alleged about forging her signature and signature of hersister Mrs. Salma on the application submitted with the Talathi.Therefore, the point involved in the present complaint whether theapplication dated 04.02.2015 and signature appearing on the stamppaper, are forged or not and said fact cannot be decided without fullfledge trial after providing opportunity to lead evidence by both theparties. Therefore, I do not find that the impugned orders passed byboth the Courts below are perverse and no any substantial groundsare set out to interfere with the finds of both the Courts below.Hence, the Writ Petition is dismissed. Accordingly, Rule is discharged. [ Y. G. KHOBRAGADE, J. ] SMS 13 of 13