Dr. Dev Nath Verma vs State

Dinesh Kumar Singh, J

The present petition under Section 482 Cr.P.C. has been filed for quashing of the proceedings in Criminal Case no.5 of 2002 (State Vs. Dr. Dev Nath verma) pending in the court of Special Judicial Magistrate, Pollution and CBI, Lucknow and for setting aside the order dated 2.4.2003 passed by the Special Judicial Magistrate, Pollution and CBI, Lucknow rejecting the application for discharge filed by the petitioner as well as the order dated 27.2.2004 passed by the revisional court rejecting the revision filed against the order dated 2.4.2003.

Before coming to the merit of the case, some startling facts, which are borne out from the record, are required to be mentioned in the present case. This Court during vacation on 3.6.2004 issued notice on this petition and fixed 19.7.2004 as the next date for hearing on admission. It was also directed that till the date fixed in the case, charge should not be framed. Counter affidavit was filed by the C.B.I. and three days' time was granted for filing rejoinder affidavit. Vide order dated 19.7.2004, it was directed that the matter to be listed in the next week. However, the interim order dated 3.6.2004, which was limited till the next date of listing i.e. 19.7.2004, was not extended. The case was listed on 26.7.2004, but no order was passed. Thereafter, the case was not listed for almost an year and, therefore, the C.B.I. filed an application on 22.7.2005 for listing the present case for hearing. This Court vide order dated 25.7.2005 directed the case to be listed in the second week of August, 2005 and, disposed of the said application. On 11.8.2005 the case was listed, but no order was passed. Similar was the case on 8.11.2005. The C.B.I. thereafter, again moved an application on 16. 2.2006 for listing of the case for hearing. This Court disposed of the said application on 20.2.2006 directing the case to be listed in the week commencing 27.2.2006. The case was listed on 28.2.2006, but no order was passed. The C.B.I. again moved an application on 6.9.2006 for listing the case at an early date. This Court vide order dated 8.9.2006 directed the matter to be listed in the next week. On 15.9.2006 the case was listed, but no order was passed. The C.B.I. thereafter, moved fourth application for listing of the case on 13.11.2006. This Court vide order dated 15.11.2006 noted that after 15.9.2006 the case was not listed and, therefore, directed the case to be listed in the last week of November, 2006. The case was listed on 29.11.2006, but no order was passed. On 16.3.2007 the C.B.I. moved fifth application praying for listing of the case for hearing at an early date. This Court vide order dated 19.3.2007 disposed of the said application directing the matter to be listed on its own turn. Thereafter, the matter was listed on 19.4.2007, but no order was passed. On 8.2.2008 the C.B.I. moved another application for listing of the case for hearing. The case was listed on 15.2.2008, but no order was passed. The C.B.I. again moved an application on 11.4.2008 for listing of the case for hearing, nut none was present, therefore, the case was directed to be listed in usual course vide roder dated 21.4.2008. The case was listed on 4.7.2008, but no order was passed.

The C.B.I. thereafter, filed an application on 2.7.2008 for dismissal of the case. It was submitted by the C.B.I. that there were sufficient oral and documentary evidence available against the petitioner and, no case for quashing of the proceedings was made out. This application was listed on 1. 8.2008, but no order was passed on the said application. On 1.9.2008 when the application for dismissal as well as this petition was listed before the Court, learned counsel for the petitioner sent illness slip to get the matter adjourned. On request of learned counsel for the C.B.I. the matter was directed to be listed in the next week. On 8.9.2008 the case was directed to be listed on the next date i.e. 9.9.2008 for hearing on the application for dismissal. On 9.9.2008 rejoinder affidavit was filed on behalf of the petitioner and, the learned counsel for the petitioner and the learned counsel for the C.B.I. were heard. Learned counsel for he petitioner, however, prayed for some time to file typed copy of the impugned order and the Court directed that the matter to be listed in the next cause list to enable learned counsel for the petitioner to file typed copy of the order impugned in this petition.

The case was listed on 19.9.2008, but no order was passed. The C.B.I. thereafter, moved another application on 2.12.2008 for listing of the case as well C.M. Application No.52696 of 2009 for dismissal of the petition. This Court vide order dated 4.12.2008 directed the case to be listed on 11.12.2008. On 11.12.2008 when the application for dismissal was listed, no one appeared on behalf of the petitioner, however, learned counsel for the C.B.I. was present and the Court, therefore, directed that the matter to be listed in the next week. On 18.12.2008, the Court again directed the matter to be listed in the next month. On 9.1.2009, the matter was listed and no one appeared on behalf of the petitioner, however, learned counsel for the C.B.I. was present. This Court directed the matter to be listed in the next week. On 16.1.2009 a request was made for listing the matter in the next week and, the case was directed to be listed in the next week. Again on 23. 1.2009 and on 30.1.2009, no orders were passed. On 17.4.2009 learned counsel for the petitioner again sought adjournment on the ground of his illness and the case was adjourned and, it was directed to be listed in the next week. On 23.4.2009, the case was directed to be listed on 27.4.2009 before appropriate Bench. On 27.4.2009 learned counsel for the petitioner was on sanctioned leave. Learned counsel for the C.B.I. was present and the case was adjourned and, the matter was directed to be listed in the next week. On 6.5.2009 no order was passed. On 28.7.2009 this Court directed that the matter to be listed on 18.8.2009. From the aforesaid order-sheet, it is evident that the interim order, which was initially granted on 3.6.2004, was limited only upto 19.7.2004 and, thereafter, the said interim order was not extended. However, on 19.8.2009 the Court directed the matter to be listed in the next cause list and directed that the interim order, if any, should continue till then. The case was listed on 31.8.2009. However, on request of learned counsel for the petitioner, the case was directed to be listed on 2. 9.2009, but interim order was not extended. On 2.9.2009, it appears that there was not enough time left in the Court to take up the matter and, on the request of learned counsel for the C.B.I. the case was directed to be listed in the next week. On 11.9.2009 the matter was directed to be listed in the next cause list. Thereafter, the case was listed on 10.11.2009, but no order was passed. Similarly, the case was listed on 7.4.2010, 10.2.2011 and 21.2.2011, but no orders were passed. On 21.2.2011, learned counsel for the petitioner sought adjournment on the ground that he was on sanctioned leave up 23.3.2011. Accordingly, the matter was directed to be listed on 24.3.2011 before appropriate Court. It was specifically stated that the interim order granted was not extended.

On 28.2.2011, the case was directed to be listed on the next day i.e. 1. 3.2011. On 1.3.2011, no order was passed and the case was directed to be listed in terms of order dated 21.2.2011. On 24.3.2011, 8.4.2011 and 13. 7.2011, no orders were passed when the case was listed before the Court. On 21.10.2011 this Court directed the matter to be listed in the next cause list. However, interim order, which was specifically made clear had not been extended in the order dated 21.2.2011, was again extended. On 28. 11.2011, it was directed that the mater to be listed after two weeks and, also that interim order, if any, to continue till the next date of listing. On 19. 12.2011 on the illness slip of learned counsel for the petitioner, the case was ordered to be listed in the second week of January, 2012. However, interim order was not specifically extended. On 13.1.2012, learned counsel for the petitioner again sought adjournment and the case was directed to be listed after two weeks. On 20.1.2012, no order was passed and on 25. 1.2012 it was directed that the case to be listed in the next week. On 2. 2.2012, no order was passed. Similarly, on 13.2.2012 no order was passed. On 27.2.2012, it was directed that the matter to be listed in the week commencing 26th March, 2012. On 14.5.2012, it was directed that the case to be listed in the month of July, 2012. The interim order which was again not extended after 28.11.2011, was again extended vide order dated 16. 7.2012 and the case was directed to be listed on 18.7.2012. On 18. 7.2012, the case was directed to be listed along with Criminal Misc. Case no.543 of 1993. On 24.8.2012, it was directed that the matter to be listed in the second week of September, 2012. Thereafter, the case was directed to be listed along with Criminal Misc. Case No.543 of 1998 and Writ Petition No.642(MB) of 1995 vide order dated 14.9.2012. Thereafter, the case was not listed. On 5.6.2017, no one appeared on behalf of the petitioner, however, learned counsel or the C.B.I. was present and the case was directed to be listed in the next cause list. Again on 12.3.2018, the case was directed to be listed in the week commencing 26.3.2018. On 30.8.2018, it was directed to be listed in the next cause list. On 14.2.2019 when the case was called out, learned counsel for the petitioner sought adjournment and, this Court directed the case to be listed peremptorily in the next cause list. The case was listed on 27.2.2019, however, learned counsel for the petitioner did not appear even when the case was taken up in the revised call and, therefore, this Court dismissed the petition for want of prosecution and, the interim order, if any, was ordered to be vacated. This Court also directed that the office to communicate the order to the court below within ten days.

Thereafter, the petitioner moved an application for recall of the order dated 27.2.2019 and, this Court vide order dated 26.3.2019 recalled the order dated 27.2.2019 and, restored the petition to its original number. On 29. 4.2019, this Court directed the case to be listed peremptorily along with the record of Writ Petition No.155 (MB) of 1996 and Criminal Misc. Case No.543 of 1998 in the next cause list. On request of the parties, the case was directed to be listed in the next cause list vide order dated 7.5.2019. On 14. 5.2019, counsel for the C.B.I. did not appear and the Special Public Prosecutor appointed under Section 24 Cr.P.C. also did not appear and some of his junior appeared and, this Court took strong objection to his apperance and, directed that the mattes to be listed on 28.5.2019. On 28.5.2019 it was directed that the matter to be listed on 10.7.2019. On 10.7.2019, the case was directed to be listed on 24.7.2019. On 24.7.2019 the case was directed to be listed on 16.8.2019. On 16.8.2019, Lawyers were on strike and, the case was directed to be listed in the next cause list. Again on 21.8.2019 Lawyers were on strike and, therefore, the case was directed to be listed in the next cause list. On 28.8.2019, the matter was directed to be listed in the week commencing 16.9.2019. On 16.9.2019 learned counsel for the petitioner sought adjournment, however, learned counsel for the C.B.I. was present and the case was directed to be listed on 30.9.2019. On 30.9.2019, the case was directed to be listed on 19.10.2019. On 19.10.2019 an adjournment was sought on behalf of the learned counsel for the petitioner on the ground that he was unwell. In view thereof, the matter was directed to be listed on 31.10.2019.

Two very disturbing factors emerge from the narration of the orders passed in the present petition. Interim order initially granted on 3.6.2004 was limited upto 19.7.2004, which was not extended on 19.7.2004 when the matter listed or thereafter. However, the trial court did not proceed to frame charge against the petitioner. Despite having dismissed the discharge application, there having no order by this Court after 19.7.2004. It appears that while directing the matter to be listed in the next cause list vide order dated 19.8.2009 i.e. after five years from the date when the interim order dated 3.6.2004 got expired on 19.7.2004, it was directed that the interim order, if any, should continue till the next date of listing of the petition. The case was listed thereafter, on 31.8.2009, but the interim order was, however, not extended. Vide order dated 21.2.2011, it was specifically made clear that the interim order granted earlier was not extended. However, vide order dated 21.11.2011 it was directed that the interim order, if any, would continue till the next date of listing. On 19.12.2011, the case was adjourned on the ground of illness of learned counsel for the petitioner and, it was directed that the matter to be listed in the second week of January, 2012, but the interim order was not extended. Again the interim order, which was extended vide order dated 21.11.2011 till the next date of listing i.e. 19.12.2011, was extended vide order dated 16.7.2019 i.e. after six and half years. On 16.7.2019, it was directed that the case to be listed on 18.7.2019 and the interim order, if any, should continue till then. Thus, after 18.7.2019 there had been no order on the order-sheet extending the interim order when till the case was dismissed on 27.2.2019. Despite there being no interim order, this Court is baffled to find out that why the trial court did not proceed to frame charge and proceed with the trial for all these years. The second aspect of the matter, is that as and when the matter was listed and it was likely to be taken up for hearing, learned counsel for the petitioner has sought adjournment either on the ground of illness or he was on sanctioned leave and this Court made it categorically clear vide order dated 19.10.2019 that the case would not be adjourned on any ground on 31.10.2019. In view of the aforesaid facts, this case remained pending for more than 15 years before this Court.

The purpose of mentioning the orders available on the order-sheet in detail is to highlight the manner in which the parties take up a case for hearing before this Court after an interim order is granted. From 3.6.2004 till 31.10.2019 when this Court made it clear in no uncertained terms that the case would not be adjourned on any ground on 31.10.2019, when finally learned counsel for the petitioner has made his submissions, the order-sheet is only of adjournment of the case. This is the precise cause of huge pendency in this Court. It is expected from the Bar and the Bench to see that the precious time of the Court is not wasted in this manner, in which the matter get adjourned on every date for 15 years. Listing of the case before the Court requires human efforts by several persons and it consumes the time of counsels representing the parties well as of the Bench and, therefore, it is expected that whenever the matter is listed, the counsels should make an endeavour to have fructified hearing. Once, interim order is granted, the endeavour should not be to continue the interim order in its perpetuity without final hearing of the matter. This Court expects from the Bar that its member should come prepared to argue the cases and not to seek adjournment only in order to perpetuate the interim order and keeping the matter alive in the Court. This does not augur well for justice delivery system. Justice delayed is justice denied. The responsibility lies on the shoulder of the Bar as well as on the Bench to see that the cases which come before the Court, are decided at the earliest.

The facts of the present case, in brief, are that the petitioner and his wife Smt. Savita Devi filed Writ Petition No.155 (MB) of 1996 before this Court alleging that the petitioner was a doctor (BAMS degree holder) and his wife were peace loving citizens of the country. One Phool Kumari executed a Will in favour of them on 2.2.1994 in respect of House No.142 situated at Mohalla Idgah, District Lakhimpur Kheri and, after the death of Phool Kumari, the petitioner and his wife became the absolute owner of the said house. Their application for mutation was also decided in their favour vide order dated 10.10.1995 by the Executive Officer, Nagar Palika Parishad, Lakhimpur Kheri. A copy of the Will and the alleged order dated 10. 10.1995 were placed on record as Annexures No.1 and 2 to the petition.

It was further alleged that in the year 1992 one Nanga Ram and his sons Ram Saran, Jas Karan and Rajendra Prasad took forcible possession of the house of Phool Kumari. Phool Kumari and the petitioner approached the police authorities including the District Magistrate. The authorities directed that Nanga Ram and others be evicted from the house. It was said that after the house got mutated in the name of the petitioner and his wife, they had been living in the said house. However, Ram Saran, Jas Karam and Rajendra Prasad were threatening the petitioner and his wife to vacate the house and transfer the same in their name, otherwise they would face serious consequences. It was said that the petitioner on 6.1.1996 had approached the District Magistrate, Superintendent of Police and the Station House Officer, P.S. Kotwali, Lakhimpur Kheri fearing untoward incident by Ram Saran and others inasmuch as they were trying to dispossess the petitioner and his wife from the house forcibly. It was said that no action was taken on the said application and, instead the petitioner was called by the Station House Officer at the police station and was asked to show the papers of the house. The petitioner showed all the papers to the Station House Officer. The petitioner was made to sit at the police station. It was further said that in the meantime, his son Amit came to Kotwali along with few other persons of the locality and, he was Ram Saran, who was an Ex-MLA and his two brothers Jas Karan and Rajendra Prasad along with number of persons, had come to the house of the petitioner and were taking away all belongings and they were also assaulting the family members of the petitioner. It was said that the petitioner requested the Station House Officer to take appropriate action, but of no avail. The petitioner came to know that it was all done in collusion with the police and on instructions of high ups. No action was taken even when the petitioner approached the District Magistrate as well as the Superintendent of Police, Lakhimpur Kheri, neither FIR was lodged. It was said that the police was not acting because of political pressure and was the hands in glove with the Ex-MLA. A prayer was made in the petition for a mandamus/direction to register an FIR on the basis of the complaint given regarding the incident, which took place on 10.1.1996.

This Court vide order dated 19.1.1996 directed the Station House Officer, of Police Station Kotwali, Lakhimpur Kheri to remain present before the Court on the next date of listing of the petition i.e. 22.1.1996 along with relevant record. On 22.1.1996, the Court directed the Station House Officer to file an affidavit in response to the writ petition. It appears that the Station House Officer on 21.1.1996 passed an order for registration of the FIR and, thus, the FIR came to be registered on 21.1.1996 at 3.15 PM at Police Station Kotwali, Lakhimpur Kheri on the compliant of the petitioner dated 10.1.1996. On 21.8.1996, the Court passed an order in the aforesaid writ petition holding that the local police had failed to discharge its primary duty of investigating of the two FIRs and, therefore, the case was directed to be investigated by the C.B.I. It was further directed the C.B.I. would investigate the allegations made by the petitioner in the FIR besides the following points should also be investigated by the C.B.I.:-

"(i) Who was in possession on 6.1.1996 of the premises in dispute when the report Annexure-3 to the writ petition was lodged by one of the petitioners?

(ii) Whether the petitioners were forcibly dispossessed and the house was grabbed by Sri Ram Saran with the aid and connivance of the District Administration and/or police personnel of P.S. Kotwali Lakhimpur Kheri ?

(iii) To get the complete file of the record referred to above traced out and forward it along with the report to this Court. In case the complete record is not traced out, the reasons thereof."

The C.B.I. was directed to submit its report in a sealed cover within two months. The case was directed to be listed on 4.11.1996 for further orders.

Thus, in the manner, the FIR which was registered at Case Crime No.86 of 1996 on 22.1.1996 under Section 395 IPC against Ram Saran, Jas Karan and Rajednra Prasad was transferred to the C.B.I. in pursuance of the order of the Division Bench of this Court on 21.8.1996 passed in Writ Petition No.155 (MB) of 1996 and, it was registered as CBI case on 11. 9.1996 and, the C.B.I. undertook the investigation. It appears that the C.B.I. conducted the investigation and Deputy Superintendent, CBI, Lucknow submitted a detailed report pointing out that the petitioner was not in possession of the house on 6.1.1996 and, neither he was dispossessed on 10. 1.1996 as alleged or otherwise. The C.B.I. also in its report said that record showed that no proceedings took place after 23.9.1992 and, the contention of the petitioner was not borne out from the record. The C.B.I. in its report further said that the alleged Will was forged Will. In view of the aforesaid report, this Court dismissed the writ petition summarily on the ground that there was no occasion for the Court to interfere in the controversial facts. The C.B.I. and parties were given liberty to take consequential legal proceedings.

After dismissal of Writ Petition No.155 (MB) of 1996 by a Division Bench of this Court vide order dated 4.8.1997, the Additional Registrar of this Court filed a complaint under Section 195 Cr.P.C. in the court of Special Judicial Magistrate, CBI, Lucknow alleging that in the investigation of the C.B.I. which was carried out in pursuance of the order of this Court dated 21.8.1996, the compliant dated 6.1.1996 (Annexure-III to the petition) and complaint dated Nil (Annexure-IV to the writ petition) of Writ Petition No.155 (MB) of 1996 on the basis of which Case Crime No.86 of 1996, under Sections 395 IPC was registered on 22.1.1996 at Police Station Kotwali, Kheri were found to be false and fabricated. It was further said that the investigation conducted by the C.B.I. by collecting oral, documentary and circumstantial evidence would show that Dr. Dev Nath Verma, the petitioner and his family were not in possession of House No.142, situate at Mohalla Idgah, Lakhimpur Kheri during January, 1996 and his belongings/property were neither forcibly removed nor were looted by Sri Ram Saran and his brothers Jas Karan and Rajendra Prasad along with 10-12 persons on 10.1.1996 as alleged or otherwise. It was further said that investigation also disclosed that House No.142 at Mohalla Idgah, Lakhmpur Kheri belonged to late Smt. Phool Kumari and, the Rent Control and Eviction Officer, Lakhimpur Kheri vide order dated 30.7.1986 had allotted the said house to late Sri Nanga Ram, father of Ram Saran and others, who took possession of the said house on 14.8.1986. Against the order passed by the Rent Control and Eviction Officer, Lakhimpur Kheri, Smt. Phool Kumari filed revision before the IIIrd Additional District Judge, Lakhimpur Kheri, who vide oder dated 23.9.1992 remanded the case to the Rent Control and Eviction Officer with direction that the case be heard afresh. It was also said that the evidence collected and investigation carried out by the C.B.I. revealed that the allegations levelled by the petitioner in his complaint regarding the incident of 10.1.1996 were completely false.

It was also said that in pursuance of the order dated 23.9.1992 passed by the IIIrd Additional District Judge in the revision filed by Smt. Phool Kumari, no hearing had taken place before the Rent Control and Eviction Officer. It was said that the contention Dr. Dev Nath Verma, the petitioner that in January, 1994 an application was moved on behalf of Smt. Phool Kumari before the district authorities for restoration of the possession of the house and, the possession of the entire house was again restored to Smt. Phool Kumari in the last week of January, 1994 were wholly false and incorrect. There was no such order reflecting of listing of the case in January, 1994 and the assertions made by the petitioner in his affidavit were found to be completely false. It was also assertions in the affidavits of the petitioner and his wife Smt. Savita Devi that on the basis of the Will purportedly executed on 2.2.1994 by Smt. Phool Kumari and, the certificate dated 27.2.1994, House No.142 got mutated in their favour on 10.10.1995 in the records of Nagar Palika Parishad, were wholly false and fabricated.

The investigation had established that the alleged Will deed dated 2. 2.1994 was neither registered nor authenticated by notary pubic. It was a forged, false and fabricated Will. The Central Forensic Science Laboratory vide report No.CFSL-97/D-99/937 dated 31.3.1997 had opined that the finger print impression appearing on page-1 of Will dated 2.2.1994 was not that of late Smt. Phool Kumari. Thus, the Will, which was annexed with the writ petition, was forged and false document. It was further said that Dilip Singh and Kunwar Bhanu Pratap Singh, grand sons of Late Smt. Phool Kumari had resolutely denied the death of Smt. Phool Kumari on 27.2.1994 and they had specifically said that Smt. Phool Kumari died on 9.3.1994 in the Medical College, Lucknow. The Birth and Death Registrar of Nagar Nigam, Lucknow too confirmed that Smt. Phool Kumari died on 8.3.1994 at Lucknow. It was further said that the averments made in affidavit by the petitioner was full of falsehood and, he deliberately attempted to obfuscate the matter of ownership of House No.142, Mohalla Idgah, Lakhimpur Kheri and, the averments made in the writ petition were false and fabricated. It was further said that a Division Bench of this Court vide order dated 4.8.1997 while dismissing the writ petition summarily, directed the concerned parties to take consequence legal proceedings. It was said that the aforesaid facts would disclose the commission of offence punishable under Sections 420, 467, 468, 471 IPC and, also under Section 182/211 IPC. In view of the aforesaid, a request was made to proceed against the petitioner. The complaint was filed in the official capacity of the complaint as envisaged under Section 195 Cr.P.C..

Non-bailable warrant was issued against the petitioner. The petitioner was produced before the Special Judicial Magistrate, CBI, Lucknow on 3.3.1998. The petitioner, thereafter, moved an application under Section 239 Cr.P.C. for discharge on 18.6.1998 in Complaint Case No.30 of 1998. The learned Magistrate vide order dated 20.7.1998 rejected the discharge application of the petitioner. The petitioner, thereafter, filed Writ Petition No.2648 (MB) of 1998. However, the same was converted into a petition under Section 482 Cr.P.C. and was numbered as 543 of 1998. This Court vide judgement and order dated 8.3.2002 allowed the said petition on the ground that the Division Bench in its order dated 4.8.1997 while dismissing Writ Petition No.155 (MB) of 1996 had not directed for filing of the compliant inasmuch as the Court had neither recorded a finding to the effect nor made a complaint thereof in writing and, it was left open to the parties to take consequential legal proceedings. It was further held that the Registrar had no authority to lodge the compliant under Section 340 Cr.P.C. as there was no order of the Court for lodging the compliant as provided under Section 340 Cr.P.C. However, it was observed that it would be open to the CBI either to submit the charge sheet or file a complaint in the court of Special Judicial Magistrate. In view thereof, the proceedings of Complaint Case No.30 of 1998 pending in the court of Special Judicial Magistrate were quashed. It was left open to the C.B.I. to file a complaint or charge sheet as the case may be and it was said that in such proceedings bar of Section 195 Cr.P.C. would not apply inasmuch the offence of forging the Will was a distinct offence committed outside the Court proceedings.

The C.B.I. thereafter, filed the charge sheet dated 12.7.2002 in the case against the petitioner finding that the facts and investigation clearly disclosed the commission of the offences punishable under Sections 420, 467, 468 and 471 and, also under Section 182/211 IPC. The petitioner having been summoned, filed an application for discharge before the learned Magistrate. The learned Magistrate vide order dated 2.4.2003 had held that there was sufficient material and evidence available on record to attract the offences under Sections 420, 467, 468, 471 and Section 182/211 IPC inasmuch as the petitioner had prepared forged documents to deceive, which included the Will dated 2.2.1994, death certificate of Smt. Phool Kumari and he used these documents in the court proceedings alleging to be true and correct though he knew that these documents were forged and fabricated. Learned Magistrate, therefore, held that there was strong suspicion against the petitioner for producing the forged and fabricated documents in the Court proceedings and, therefore, the application was without any merit and substance. The application was dismissed and it was ordered the case to be listed on 21.4.2003 for framing of charge.

The petitioner, thereafter, filed revision before the court of Additional District Judge, Court No.7, Lucknow being Criminal Revision No.72 of 2003 against the order dated 2.4.2003 passed by the learned Magistrate. The revisional court said that considering the evidence and material collected by the C.B.I. during investigation, which were available with the charge sheet, including the forensic science laboratory report in respect of the alleged Will dated 2.2.1994, at this stage on the basis of the statement of some witnesses that the Will was executed by Smt. Phool Kumari, the petitioner could not be discharged. It was said that the Will was in possession of the accused and from the statement of the grandsons of Smt. Phool Kumari, it was said that he forged the death certificate of Smt. Phool Kumari as well. Learned revisional court partly allowed the revision and held that taking cognizance against the accused under Section 182/211 IPC was not correct. The revisional court dismissed the revision in respect of taking cognizance of the offences under Sections 420, 467, 468 and 471 IPC inasmuch as there was sufficient material available on record, on the basis of which there was strong suspicion against the petitioner for commission of these offences.

Heard Sri Nandit Srivastava, learned Senior Advocate assisted by Sri Monoj Kumar Dixit, learned counsel for the petitioner and the learned AGA, none for C.B.I.

Learned counsel for the petitioner submits that considering the statement of the wittinesses recorded by the C.B.I. under Section 161 Cr.P.C., no offence is made out against the petitioner. He further submits that attesting witnesses has specifically stated that the Will was executed by Smt. Phool Kumari on 2.2.1994 in favour of the petitioner and his wife. He has also tried to place reliance on the statement of some of the witnesses recorded under Section 161 Cr.P.C. He submits that forensic science laboratory is an expert opinion and, it cannot be relied upon against the testimony of an eye witness. He, therefore, submits that there is not enough material and evidence on record to form a prima facie opinion regarding strong suspicion against the petitioner for commission of the offence and, therefore, the orders passed by the learned Magistrate as well as by the revisional court are liable to be set aside. He has also relied upon the judgements of the Supreme Court in the cases of Arjan Singh and others Vs. Hazara Singh, 1980 SCC (Cri) 309, Dilawsar Balu Kurane Vs. State of Maharashtra, 2002 SCC (Cri) 310 and Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368.

On the basis of the aforesaid judgements, he submits that the trial court has cursorily passed the order though it is required to weigh the evidence for limited purpose of finding out whether a, prima facie, case is made out against the petitioner or not. He, therefore, submits that considering the ratio of law laid down by the Supreme Court in the aforesaid judgements, the application for discharge ought to have been allowed.

I have considered the submissions of the learned counsel for the petitioner carefully and perused the record.

The C.B.I. in its detail investigation, has clearly opined that the petitioner had forged the Will dated 2.2.1994 allegedly executed by Smt. Phool Kumari. The C.B.I. has brought on record the Central Forensic Science Laboratory report in respect of the Will to come to this conclusion. The death certificate of Smt. Phool Kumari was also forged by the petitioner, which is evident from the certificate issued by the Municipal Corporatio, Lucknow and, the statements of the grandsons of Smt. Phool Kumari. The petitioner allegedly used these documents so that he could occupy the property of House No.142, situate at Mohalla Idgah, Lakhimpur Kheri. When the application for discharge is moved, the trial court is required to examine and consider the evidence and material on record in detail to form an opinion whether, prima facie, case raising strong suspicion against the petitioner for commission of the offence is made out or not. The trial court at this stage, is not required to go in detail and weigh the evidence to find out whether the conviction of the accused would be secured in all likelihood. If the trial court is of the opinion that there is sufficient material and evidence on record, which raises strong suspicion against the accused for commission of the offence, the trial court is required to proceed for framing of the charge.

In the present case, as mentioned above, it cannot be said that there is no evidence or material on the basis of which no prima facie case against the accused is made out to raise strong suspicion of his involvement in the commission of the offence.

The Supreme Court in the case of State of Tamil Nadu by Inspector of Police Vigilance and Anti-corruption Vs. N. Suresh Rajan and others, (2014) 11 SCC 709 has held that at the stage of discharge, the court is required only to go into the probative value of the material and, it is not expected to go into deep the matter to hold that the material should not warrant conviction. What is required at the stage of discharge is that if the court finds that, prima facie, the offence has been committed, it can frame charge.

Paragraphs 29, 32.4, 33 and 34 of the aforesaid judgement are extracted herein below :-

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.

32.4. While passing the impugned orders [N. Suresh Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528 of 2009, order dated 10-12-2010 (Mad)] , [State v. K. Ponmudi, (2007) 1 MLJ (Cri) 100] , the court has not sifted the materials for the purpose of finding out whether or not there is sufficient ground for proceeding against the accused but whether that would warrant a conviction. We are of the opinion that this was not the stage where the court should have appraised the evidence and discharged the accused as if it was passing an order of acquittal. Further, defect in investigation itself cannot be a ground for discharge. In our opinion, the order impugned [N. Suresh Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528 of 2009, order dated 10-12-2010 (Mad)] suffers from grave error and calls for rectification.

Any observation made by us in this judgment is for the purpose of disposal of these appeals and shall have no bearing on the trial. The surviving respondents are directed to appear before the respective courts on 3-2-2014. The Court shall proceed with the trial from the stage of charge in accordance with law and make endeavour to dispose of the same expeditiously.

In the result, we allow these appeals and set aside the order of discharge with the aforesaid observations."

In the case of Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460, the Supreme Court has held that at the time of considering the application for discharge, the Court is required to consider the "record of the case" and the documents submitted therewith. Where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. The Court is not concerned with the proof, but only with strong suspicion that the accused has committed the offence. Paragraphs 17 and 19 of the aforesaid judgement are extracted herein under :-

"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] : (SCC pp. 41-42, para 4)

"4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If 'the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing', as enjoined by Section 227. If, on the other hand, 'the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- ... (b) is exclusively triable by the court, he shall frame in writing a charge against the accused', as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."

The Supreme Court in the case of State by the Inspector of Police, Chennai Vs. S. Selvi and another, (2018) 13 SCC 455 has summarised the principle while considering the application for discharge of an accused. Paragraphs 6, 7 and 8, which are relevant, are extracted herein below :-

"6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505] , Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.

In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376-77, para 21)

"(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

This Court in State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505] , Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688] and State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] has reiterated almost the aforementioned principles. However, in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , relied upon by the counsel for Respondent 1 is not applicable to the facts of the case inasmuch as the said matter arose out of the judgment of the High Court quashing the entire criminal proceedings inclusive of the registration of first information report. The said matter was not concerned with the discharge of the accused."

In the case of Asim Sharif Vs. National Investigation Agency, (2019) 7 SCC 149, the Supreme Court has again reiterated the principle that while considering the application for discharge, the court has power to sift and weigh the evidence only for limited purpose to find out whether or not prima facie case exists against the accused. If the material placed before this Court raises great suspicion against the accused, the Court is wholly justified in framing of the charge. After taking note of the judgement in the case of Sajjan Kumar (supra), in paragraph 18 of the aforesaid judgement, the Supreme Court has held as under :-

"18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record."

In the recent judgement, the Supreme Court in the case of Tarun Jit Tejpal Vs. State of Goa and other: 2019 SCC OnLine SC 1053 after taking note of the judgements in the cases of Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 (Para 10), State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 (Para 4), Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715, Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330, Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76, State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 (Para 29 to 31.3), State v. S. Selvi, (2018) 13 SCC 455, Mauvin Godinho v. State of Goa, (2018) 3 SCC 358., in paragraph 32 of the judgement held as under :-

"32. Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for.

"Tarun Tej Pal Vs. Goa, 2019 SCC Online 1053 after taking note of the judgement in the case of Union of India Vs. Praful .. n paragraph 20 of the judgement held as 32 it has been held as under :-

Thus, the law is very well settled that while considering the application for discharge, the Court is only required to weigh the material and evidence on record to find out whether, prima facie, case is made out against the accused, which raises strong suspicion against him to have committed the offence and, if it is found that the ingredients of the commission of the offence is available on the basis of record, the Court will proceed to frame the charge. At this stage, the Court is not required to weigh the evidence in detail to find out whether evidence would be sufficient to record conviction or not. The Court is only required to evaluate the material and evidence to find out the prima facie case.

Considering the facts of the present case and on the anvil of law as has emerged, it cannot be said that there is not enough material for a prima facie case that there is strong suspicion against the petitioner to have committed the offences under Sections 420, 467, 468, 471 IPC and, therefore, the present petition, which has remained pending in the Court since 2004, is hereby dismissed.

The learned Magistrate is directed to proceed immediately for framing of the charge and conclude the trial expeditiously, preferably, within a period of one year.