Madhya Pradesh High Court
Smt. Kamla Bai vs Dr. Kailash Singh Raghuvanshi on 7 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G.S.Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G.S.AHLUWALIA
ON THE 7TH OF JANUARY, 2025
MISC. CRIMINAL CASE NO. 13070 OF 2012
SMT. KAMLA BAI & ORS.
VS.
DR. KAILASH SINGH RAGHUVANSHI AND ORS.
APPEARANCE
Shri Sameer Kumar Shrivastava - Advocate for applicants.
Shri Akram Khan - Advocate for respondent No. 1.
Shri Yogesh Parashar- Public Prosecutor for respondents No. 2 and 3/State.
ORDER
This application under Section 482 of Cr.P.C. has been filed against
the order dated 20/11/2013 passed by 4 th Additional Sessions Judge, Guna,
District Guna in Criminal Revision No. 77/2023 by which the Revisional
Court has reversed the order dated 1/5/2023 passed by JMFC, Aron,
district Guna in UNCR/65/2022 and has directed the trial Court to take
cognizance for offence under Sections 120-B, 471 and 417 of IPC.
2. Facts necessary for disposal of present application in short are that
one Maniram, husband of applicant No. 1 and father of applicants No. 2 to
5 was the owner of the land in dispute. A sale deed was executed in favour
of respondents. The applicants filed a suit for declaration of sale deed as
null and void alleging that Maniram had expired on 2/4/1987; whereas, the
sale deed was executed on 20/12/1988. Therefore, the primary bone of
2
contention of applicants before the Civil Court was that since Maniram had
already expired on 2/4/1987, therefore, he could not have executed a sale
deed on 20/12/1988. It was the case of the respondents that Maniram had
executed a sale deed on 20/12/1988 and he expired on 16/11/1989. A death
certificate issued on 3/9/2012 was also filed before the Civil Court. Civil
Court dismissed the suit thereby raising a suspicion about the death
certificate relied upon by the applicants. The Civil Appeal has also been
dismissed. Second appeal is pending but it has not been admitted so far.
3. In the meanwhile, the respondents filed a criminal complaint against
the applicants alleging that the applicants had filed a forged death
certificate dated 3/9/2012 to project that Maniram had expired on
2/4/1987. The trial Magistrate after recording preliminary statement of the
witnesses as well as complainant dismissed the complaint under Section
203 of Cr.P.C. on the ground that although civil suit has been dismissed but
no finding was recorded by the civil Court to the effect that death
certificate dated 3/9/2012 filed by the applicants before the Civil Court
was a forged document and the respondent has not examined the
competent authority to show that the death certificate was a forged
document.
4. Being aggrieved by the said order, the respondent preferred a
revision and the revisional Court by impugned order dated 20/11/2023 has
set aside the order passed by the trial Court and gave a finding that prima
facie there is sufficient material to hold that a forged death certificate was
filed by the applicants before the trial Court, therefore, the trial Magistrate
was directed to take cognizance for offence under Sections 120-B, 471 and
417 of IPC.
5. Challenging the order passed by the revisional Court, it is submitted
3
by counsel for applicants that in exercise of powers under Section 398 of
Cr.P.C., the revisional Court can at the most remand the matter to the trial
Magistrate to conduct further enquiry but the revisional Court cannot give
a specific finding with regard to the guilt of the accused persons and
therefore, the findings with regard to the nature of the death certificate as
well as a specific direction to the trial Magistrate to take cognizance for
offence under Section 120-B, 471 and 417 of IPC is beyond the
competence/jurisdiction of the revisioanl Court.
6. To buttress his contentions, counsel for the applicants has also
relied upon the judgment passed by this Court in the case of Rajaram
Gupta and Ors. Vs. Dharamchand and Ors., 1983MPLJ56, Rewaram
and Anr. Vs. State of M.P.and Anr., 2004(4)MPLJ351 and Bahadur
Singh Vs. Ramcharan, 2016(2)MPLJ(Cri.)299.
7. Per contra, application is vehemently opposed by counsel for the
complainant as well as the State.
8. Heard learned counsel for the parties.
9. Section 398 of Cr.P.C. reads as under:-
“398.Power to order inquiry.-On examining any record
under Section 397 or otherwise, the High Court or the
Sessions Judge may direct the Chief Judicial Magistrate
by himself or by any of the Magistrates subordinate to
him to make, and the Chief Judicial Magistrate may
himself make or direct any subordinate Magistrate to
make, further inquiry into any complaint which has
been dismissed under Section 203 or sub-section (4) of
Section 204 or into the case of any person accused of an
offence who has been discharged;
Provided that no Court shall make any direction under
this section for inquiry into the case of any person who
has been discharged unless such person has had an
opportunity of showing cause why such direction should
4not be made.”
10. The Supreme Court in the case of Shivjee Singh Vs. Nagendra
Tiwary and Ors.,(2010)7SCC578 has considered the scope of enquiry at
the stage of taking of cognizance and has also explained the meaning of
sufficient grounds for taking cognizance which reads as under:-.
“18. The expression “sufficient ground” used in
Sections 203, 204 and 209 means the satisfaction that a
prima facie case is made out against the person accused
of committing an offence and not sufficient ground for
the purpose of conviction. This interpretation of the
provisions contained in Chapters XV and XVI CrPC
finds adequate support from the judgments of this Court
in Ramgopal Ganpatrai Ruia v. State of Bombay [AIR
1958 SC 97 : 1958 Cri LJ 244 : 1958 SCR 618], Vadilal
Panchal v. Dattatraya Dulaji Ghadigaonkar [AIR 1960
SC 1113 : 1960 6 M.Cr.C.No.8052/2024 Cri LJ 1499 :
(1961) 1 SCR 1], Chandra Deo Singh v. Prokash
ChandraBose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397
: (1964) 1 SCR 639] , Nirmaljit Singh Hoon v. State of
W.B. [(1973) 3 SCC 753 : 1973 SCC (Cri) 521], Kewal
Krishan v. Suraj Bhan [1980 Supp SCC 499 : 1981 SCC
(Cri) 438], Mohinder Singh v. Gulwant Singh [(1992) 2
SCC 213 : 1992 SCC (Cri) 361] and Chief Enforcement
Officer v. Videocon International Ltd. [(2008) 2 SCC
492 : (2008) 1 SCC (Cri) 471].
19. In Chandra Deo Singh v. Prokash Chandra Bose
[AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 : (1964) 1
SCR 639], it was held that where there was prima facie
evidence, the Magistrate was bound to issue process and
even though the person charged of an offence in the
complaint might have a defence, the matter has to be
left to be decided by an appropriate forum at an
appropriate stage. It was further held that the issue of
process can be refused only when the Magistrate finds
that the evidence led by the complainant is self-
contradictory or intrinsically untrustworthy.
20. In Kewal Krishan v. Suraj Bhan [1980 Supp SCC
499 : 1981 SCC (Cri) 438], this Court examined the
scheme of Sections 200 to 204 and held: (SCC p. 503,
5
para 10)
“10. … At the stage of Sections 203 and 204
of the Criminal Procedure Code in a case
exclusively triable by the Court of Session,
all that the Magistrate has to do is to see
whether on a cursory perusal of the
complaint and the evidence recorded during
the preliminary inquiry under Sections 200
and 202 of the Criminal Procedure Code,
there is prima facie evidence in support of 7
M.Cr.C.No.8052/2024 the charge levelled
against the accused. All that he has to see is
whether or not there is ‘sufficient ground for
proceeding’ against the accused. At this
stage, the Magistrate is not to weigh the
evidence meticulously as if he were the trial
court. The standard to be adopted by the
Magistrate in scrutinising the evidence is
not the same as the one which is to be kept
in view at the stage of framing charges.”
21. The aforesaid view was reiterated in Mohinder
Singh v. Gulwant Singh [(1992) 2 SCC 213 : 1992 SCC
(Cri) 361] in the following words: (SCC p. 217, para
11)
“11. … The scope of enquiry under Section
202 is extremely restricted only to finding
out the truth or otherwise of the allegations
made in the complaint in order to
determine whether process should issue or
not under Section 204 of the Code or
whether the complaint should be dismissed
by resorting to Section 203 of the Code on
the footing that there is no sufficient
ground for proceeding on the basis of the
statements of the complainant and of his
witnesses, if any. But the enquiry at that
stage does not partake the character of a
full-dress trial which can only take place
after process is issued under Section 204 of
the Code calling upon the proposed
accused to answer the accusation made
6
against him for adjudging the guilt or
otherwise of the said accused person.
Further, the question whether the evidence
is 8 M.Cr.C.No.8052/2024 adequate for
supporting the conviction can be
determined only at the trial and not at the
stage of the enquiry contemplated under
Section 202 of the Code. To say in other
words, during the course of the enquiry
under Section 202 of the Code, the enquiry
officer has to satisfy himself simply on the
evidence adduced by the prosecution
whether prima facie case has been made
out so as to put the proposed accused on a
regular trial and that no detailed enquiry is
called for during the course of such
enquiry.”
(emphasis supplied)
22. The use of the word “shall” in the proviso to Section
202(2) is prima facie indicative of mandatory character
of the provision contained therein, but a close and
critical analysis thereof along with other provisions
contained in Chapter XV and Sections 226 and 227 and
Section 465 would clearly show that non-examination
on oath of any or some of the witnesses cited by the
complainant is, by itself, not sufficient to denude the
Magistrate concerned of the jurisdiction to pass an order
for taking cognizance and issue of process provided he
is satisfied that prima facie case is made out for doing
so. Here it is significant to note that the word “all”
appearing in the proviso to Section 202(2) is qualified
by the word “his”. This implies that the complainant is
not bound to examine all the witnesses named in the
complaint or whose names are disclosed in response to
the order passed by the Magistrate. In other words, only
those witnesses are required to be examined whom the
complainant considers material to make out a prima
facie case for issue of process.”
11. If the facts of the present case are considered then it is a case of
respondent that the applicants had filed a forged death certificate of
7
Maniram to show that he had expired on 2/4/1987. The aforesaid forged
document was filed with an intention to claim that since Maniram had
already expired much prior to execution of the impugned sale deed,
therefore, the sale deed dated 20/12/1988 executed in favour of the
respondent is a forged document. The moot question for consideration is as
to whether the findings given by the Civil Court are bindings on the
Criminal Court or not.
12. The Supreme Court in the case of Kishan Singhn (Dead) Through
LRs. v. Gurpal Singh and Others, reported in (2010) 8 SCC 775 has
held as under :
“16. In Iqbal Singh Marwah v. Meenakshi Marwah this
Court held as under : (SCC pp. 389-90, para 32)
“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 is entirely different. Civil
cases are decided on the basis of 5
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.”
17. In Syed Askari Hadi Ali Augustine Imam v. State
(Delhi Admn.) this Court considered all the earlier
judgments on the issue and held that while deciding the
case in Karam Chand, this Court failed to take note of
the Constitution Bench judgment in M.S. Sheriff and,
therefore, it remains per incuriam and does not lay down
the correct law. A similar view has been reiterated by
8
this Court in Vishnu Dutt Sharma v. Daya Sapra,
wherein it has been held by this Court that the decision
in Karam Chand stood overruled in K.G. Premshanker.
18. Thus, in view of the above, the law on the issue
stands crystallised to the effect that the findings of fact
recorded by the civil court do not have any bearing so
far as the criminal case is concerned and vice versa.
Standard of proof is different in civil and criminal cases.
In civil cases it is preponderance of probabilities while
in criminal cases it is proof beyond reasonable doubt.
There is neither any statutory nor any legal principle
that findings recorded by the court either in civil or
criminal proceedings shall be binding between the same
parties while dealing with the same subject-matter and
both the cases have to be decided on the basis of the
evidence adduced therein. However, there may be cases
where the provisions of Sections 41 to 43 of the
Evidence Act, 1872, dealing with the relevance of
previous judgments in subsequent cases may be taken
into consideration.”
13. The Supreme Court in the case of Syed Askari Hadi Ali Augustine
Imam And Another Vs. State (Delhi Administration) and Another
reported in (2009)5SCC 528 has held as under :
“24. If primacy is to be given to a criminal proceeding,
indisputably, the civil suit must be determined on its
own merit, keeping in view the evidence brought before
it and not in terms of the evidence brought in the
criminal proceeding. The question came up for
consideration in K.G. Premshanker v. Inspector of
Police wherein this Court inter alia held: (SCC p. 97,
paras 30-31)
“30. What emerges from the aforesaid
discussion is–(1) the previous judgment
which is final can be relied upon as
provided under Sections 40 to 43 of the
Evidence Act; (2) in civil suits between the
same parties, principle of res judicata may
apply; (3) in a criminal case, Section 300
CrPC makes provision that once a person is
9convicted or acquitted, he may not be tried
again for the same offence if the conditions
mentioned therein are satisfied; (4) if the
criminal case and the civil proceedings are
for the same cause, judgment of the civil
court would be relevant if conditions of
any of Sections 40 to 43 are satisfied, but it
cannot be said that the same would be
conclusive except as provided in Section
41. Section 41 provides which judgment
would be conclusive proof of what is stated
therein.
31. Further, the judgment, order or decree
passed in a previous civil proceeding, if
relevant, as provided under Sections 40 and
42 or other provisions of the Evidence Act
then in each case, the court has to decide to
what extent it is binding or conclusive with
regard to the matter(s) decided therein.
Take for illustration, in a case of alleged
trespass by A on B’s property, B filed a suit
for declaration of its title and to recover
possession from A and suit is decreed.
Thereafter, in a criminal prosecution by B
against A for trespass, judgment passed
between the parties in civil proceedings
would be relevant and the court may hold
that it conclusively establishes the title as
well as possession of B over the property.
In such case, A may be convicted for
trespass. The illustration to Section 42
which is quoted above makes the position
clear. Hence, in each and every case, the
first question which would require
consideration is– whether judgment, order
or decree is relevant, if relevant–its effect.
It may be relevant for a limited purpose,
such as, motive or as a fact in issue. This
would depend upon the facts of each case.”
25. It is, however, significant to notice that the decision
of this Court in Karam Chand Ganga Prasad v. Union of
10
India, wherein it was categorically held that the
decisions of the civil courts will be binding on the
criminal courts but the converse is not true, was
overruled, stating: (K.G. Premshanker case, SCC p. 98,
para 33)
“33. Hence, the observation made by this
Court in V.M. Shah case 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 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 in M.S.
Sheriff case as well as Sections 40 to 43 of
the Evidence Act.” Axiomatically, if
judgment of a civil court is not binding on
a criminal court, a judgment of a criminal
court will certainly not be binding on a
civil court.
26. We have noticed hereinbefore that Section 43 of the
Evidence Act categorically states that judgments, orders
or decrees, other than those mentioned in Sections 40,
41 and 42 are irrelevant, unless the existence of such
judgment, order or decree, is a fact in issue, or is
relevant under some other provisions of the Act. No
other provision of the Evidence Act or for that matter
any other statute has been brought to our notice.
27. Another Constitution Bench of this Court had the
occasion to consider a similar question in Iqbal Singh
Marwah v. Meenakshi Marwah wherein it was held:
(SCC p. 387, para 24)
“24. There is another consideration which
has to be kept in mind. Sub-section (1) of
Section 340 CrPC contemplates holding of
a preliminary enquiry. Normally, a
direction for filing of a complaint is not
made during the pendency of the
proceeding before the court and this is
done at the stage when the proceeding is
11concluded and the final judgment is
rendered. Section 341 provides for an
appeal against an order directing filing of
the complaint. The hearing and ultimate
decision of the appeal is bound to take
time. Section 343(2) confers a discretion
upon a court trying the complaint to
adjourn the hearing of the case if it is
brought to its notice that an appeal is
pending against the decision arrived at in
the judicial proceeding out of which the
matter has arisen. In view of these
provisions, the complaint case may not
proceed at all for decades specially in
matters arising out of civil suits where
decisions are challenged in successive
appellate fora which are time-consuming. It
is also to be noticed that there is no
provision of appeal against an order passed
under Section 343(2), whereby hearing of
the case is adjourned until the decision of
the appeal. These provisions show that, in
reality, the procedure prescribed for filing a
complaint by the court is such that it may
not fructify in the actual trial of the
offender for an unusually long period.
Delay in prosecution of a guilty person
comes to his advantage as witnesses
become reluctant to give evidence and the
evidence gets lost. This important
consideration dissuades us from accepting
the broad interpretation sought to be placed
upon clause (b)(ii).”
28. Relying inter alia on M.S. Sheriff, it was
furthermore held: (Iqbal Singh Marwah case, SCC pp.
389-90, para 32)
“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
12
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.”
29. The question yet again came up for consideration in
P. Swaroopa Rani v. M. Hari Narayana, wherein it was
categorically held: (SCC p. 769, para 11)
“11. 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.”
14. The Supreme Court in the case of Prem Raj Vs. Poonamma Menon
and Another decided on 02.04.2024 in S.L.P.(Cr.) No.9778/2018 has
held as under :
“9. In advancing his submissions, Mr. K. Parameshwar,
learned counsel appearing for the appellant, placed
reliance on certain authorities of this Court. In M/s.
Karam Chand Ganga Prasad and Anr. vs. Union of India
and Ors.(1970)3 SCC 694, this Court observed that:
“…….It is a well-established principle of
law that the decisions of the civil courts are
binding on the criminal courts. The
converse is not true.”
In K.G. Premshanker vs. Inspector of Police and Anr,
(2002)8 SCC 87, a Bench of three learned Judges
observed that, following the M.S. Sheriff vs. State of
Madras, AIR 1954 SC 397, no straight-jacket formula
could be laid down and conflicting decisions of civil and
13
criminal Courts would not be a relevant consideration
except for the limited purpose of sentence or damages.
10. We notice that this Court in Vishnu Dutt Sharma vs.
Daya Sapra (Smt.) (2009)13 SCC 729, had observed as
under:
“26. It is, however, significant to notice a
decision of this Court in Karam Chand
Ganga Prasad v. Union of India (1970) 3
SCC 694, wherein it was categorically held
that the decisions of the civil court will be
binding on the criminal courts but the
converse is not true, was overruled
therein…”
This Court in Satish Chander Ahuja vs. Sneha Ahuja
(2021)1 SCC 414, considered a numerous precedents,
including Premshanker (supra) and Vishnu Dutt Sharma
(supra), to opine that there is no embargo for a civil
court to consider the evidence led in the criminal
proceedings.
The issue has been laid to rest by a Constitution Bench
of this Court in Iqbal Singh Marwah vs. Meenakshi
Marwah, (2005)4 SCC 370 :
“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
14of the evidence adduced therein.
While examining a similar
contention in an appeal against an
order directing filing of a complaint
under Section 476 of the old Code,
the following observations made by
a Constitution Bench in M.S. Sheriff
v. State of Madras [1954 SCR 1144:
AIR 1954 SC 397: 1954 Cri LJ
1019] give a complete answer to the
problem posed: (AIR p. 399, paras
15-16)
“15. As between the civil and the criminal
proceedings, we are of the opinion that the
criminal matters should be given precedence.
There is some difference of opinion in the High
Courts of India on this point. No hard-and-fast
rule can be laid down but we do not consider that
the possibility of conflicting decisions in the civil
and criminal courts is 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 certain limited purposes, such as
sentence or damages. The only relevant
consideration here is the likelihood of
embarrassment.
16. Another factor which weighs with us is that a
civil suit often drags on for years and it is
undesirable that a criminal prosecution should
wait till everybody concerned has forgotten all
about the crime. The public interests demand that
criminal justice should be swift and sure; that the
guilty should be punished while the events are
still fresh in the public mind and that the innocent
should be absolved as early as is consistent with a
fair and impartial trial. Another reason is that it is
undesirable to let things slide till memories have
grown too dim to trust.
This, however, is not a hard-and-fast rule. Special
considerations obtaining in any particular case might
15make some other course more expedient and just. For
example, the civil case or the other criminal proceeding
may be so near its end as to make it inexpedient to stay
it in order to give precedence to a prosecution ordered
under Section 476. But in this case we are of the view
that the civil suits should be stayed till the criminal
proceedings have finished.”
(Emphasis Supplied)”
15. Furthermore, the Supreme Court in the case of Pratibha Vs.
Rameshwari Devi and Others reported in (2007) 12 SCC 369, in which
it has been held as under:
“14. From a plain reading of the findings arrived at by
the High Court while quashing the FIR, it is apparent
that the High Court had relied on extraneous
considerations and acted beyond the allegations made in
the FIR for quashing the same in exercise of its inherent
powers under Section 482 of the Code. We have already
noted the illustrations enumerated in Bhajan Lal case
[1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and
from a careful reading of these illustrations, we are of
the view that the allegations emerging from the FIR are
not covered by any of the illustrations as noted
hereinabove. For example, we may take up one of the
findings of the High Court as noted hereinabove. The
High Court has drawn an adverse inference on account
of the FIR being lodged on 31-12-2001 while the
appellant was forced out of the matrimonial home on
25-5- 2001.
15. In our view, in the facts and circumstances of the
case, the High Court was not justified in drawing an
adverse inference against the appellant wife for lodging
the FIR on 31-12- 2001 on the ground that she had left
the matrimonial home at least six months before that.
This is because, in our view, the High Court had failed
to appreciate that the appellant and her family members
were, during this period, making all possible efforts to
enter into a settlement so that Respondent 2 husband
would take her back to the matrimonial home. If any
complaint was made during this period, there was every
16possibility of not entering into any settlement with
Respondent 2 husband.
16. It is pertinent to note that the complaint was filed
only when all efforts to return to the matrimonial home
had failed and Respondent 2 husband had filed a
divorce petition under Section 13 of the Hindu Marriage
Act, 1955. That apart, in our view, filing of a divorce
petition in a civil court cannot be a ground to quash
criminal proceedings under Section 482 of the Code as
it is well settled that criminal and civil proceedings are
separate and independent and the pendency of a civil
proceeding cannot bring to an end a criminal
proceeding even if they arise out of the same set of
facts. Such being the position, we are, therefore, of the
view that the High Court while exercising its powers
under Section 482 of the Code has gone beyond the
allegations made in the FIR and has acted in excess of
its jurisdiction and, therefore, the High Court was not
justified in quashing the FIR by going beyond the
allegations made in the FIR or by relying on extraneous
considerations.
*****
22. For the reasons aforesaid, we are inclined to
interfere with the order of the High Court and hold that
the High Court in quashing the FIR in the exercise of its
inherent powers under Section 482 of the Code by
relying on the investigation report and the findings
made therein has acted 14 beyond its jurisdiction. For
the purpose of finding out the commission of a
cognizable offence, the High Court was only required to
look into the allegations made in the complaint or the
FIR and to conclude whether a prima facie offence had
been made out by the complainant in the FIR or the
complaint or not.”
16. Thus, it is clear that findings recorded by the Civil Court are not
binding on the criminal Court and vice versa.
17. The next question is as to whether the civil proceedings and criminal
proceedings can go on simultaneously or not.
17
18. The aforesaid question is no more res integra. The Supreme Court in
the case of M.S. Sheriff and another Vs. State of Madras and others
reported in AIR 1954 SC 397 has held that between the civil and criminal
proceedings, the criminal matter should be given precedence. However, it
was also observed that no hard and fast rule can be laid down. It was
further held that possibility of conflicting decisions in civil and criminal
Courts cannot be a relevant consideration, except that there is a likelihood
of embarrassment. The Supreme Court in the case of M.S. Sheriff (supra)
has held as under:-
“(15) As between the civil and the criminal proceedings
we are of the opinion that the criminal matters should be
given precedence. There is some difference of opinion
in the High Courts of India on this point. No hard and
fast rule can be laid down but we do not consider that
the possibility of conflicting decision in the civil and
criminal Courts is a relevant consideration. The law
envisages such an eventuality when it expressly refrains
from making the decision of the Court binding on the
other, or even relevant, except for certain limited
purposes, such as sentence or damages. The only
relevant consideration here is the likelihood of
embarrassment.
(16) Another factor which weighs with us is that a civil
suit often drags on for years and it is undesirable that a
criminal prosecution should wait till everybody
concerned has forgotten all about the crime. The public
interests demand that criminal justice should be swift
and sure; that the guilty should be punished while the
events are still fresh in the public mind and that the
innocent should be absolved as early as is consistent
with a fair and impartial trial. Another reason is that it is
undesirable to let things slide till memories have grown
too dim to trust.
This, however, is not a hard and fast rule. Special
considerations obtaining in any particular case might
make some other course more expedient and just. For
18
example, the civil case or the other criminal proceeding
may be so near its end as to make it inexpedient to stay
it in order to give precedence to a prosecution ordered
under S. 476. But in this case we are of the view that the
civil suits should be stayed till the criminal proceedings
have finished.”
19. In the case of M. Krishnan Vs. Vijay Singh and another reported
in AIR 2001 SC 3014 the Supreme Court has held that the criminal
proceedings cannot be quashed only because the respondents therein had
filed a Civil Suit with respect to those documents. In a Criminal Court the
allegations made in the complaint have to be established independently,
notwithstanding the adjudication by a Civil Court. It was also held that if
mere pendency of a suit is made a ground for quashing the criminal
proceedings, the unscrupulous litigants, apprehending criminal action
against them, would be encouraged to frustrate the course of justice and
law by filing suits with respect to the documents intended to be used
against them after the initiation of criminal proceedings or in anticipation
of such proceedings. The Supreme Court in the case of M. Krishnan
(supra) has held as under:-
“5. Accepting such a general proposition would be
against the provisions of law inasmuch as in all cases of
cheating and fraud, in the whole transaction, there is
generally some element of civil nature. However, in this
case, the allegations were regarding the forging of the
documents and acquiring gains on the basis of such
forged documents. The proceedings could not be
quashed only because the respondents had filed a civil
suit with respect to the aforesaid documents. In a
criminal court the allegations made in the complaint
have to be established independently, notwithstanding
the adjudication by a civil court. Had the complainant
failed to prove the allegations made by him the
complaint, the respondents were entitled to discharge or
acquittal but not otherwise. If mere pendency of a suit is
made a ground for quashing the criminal proceedings,
19the unscrupulous litigants, apprehending criminal action
against them, would be encouraged to frustrate the
course of justice and law by filing suits with respect to
the documents intended to be used against them after the
initiation of criminal proceedings or in anticipation of
such proceedings. Such a course cannot be the mandate
of law. Civil proceedings, as distinguished from the
criminal action, have to be adjudicated and concluded
by adopting separate yardsticks. The onus of proving the
allegations beyond reasonable doubt, in criminal case, is
not applicable in the civil proceedings which can be
decided merely on the basis of the probabilities with
respect to the acts complained of. The High Court was
not, in any way, justified to observe :
“In my view, unless and until the civil Court decides the
question whether the documents are genuine or forged,
no criminal action can be initiated against the petitioners
and in view of the same, the present criminal
proceedings and taking cognizance and issue of process
are clearly erroneous.”
20. In the case of Kamaladevi Agarwal Vs. State of West Bengal and
others reported in AIR 2001 SC 3846 it has been held that the criminal
cases have to be proceeded with in accordance with the procedure as
provided under Cr.P.C. and pendency of a civil action in different Court
even though higher in status and authority cannot be made a basis for
quashing of the proceedings.
21. The Supreme Court in the case of P. Swaroopa Rani Vs. M. Hari
Narayana alias Hari Babu reported in (2008) 5 SCC 765 has held as
under:-
“11. 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 : 2005 SCC
20(Cri) 1101] and Institute of Chartered Accountants of
India v. Assn. of Chartered Certified Accountants
[(2005) 12 SCC 226 : (2006) 1 SCC (Cri) 544] .)”
22. Thus, it is clear that the Civil Suit as well as Criminal Proceedings
can proceed simultaneously and the Criminal Case cannot be quashed or
dismissed merely on the ground of pendency of a Civil Suit even before a
higher Court.
23. If the reasonings assigned by the trial Magistrate for dismissing the
complaint under Section 203 of Cr.P.C. are considered then it can be
divided into two parts. (i) that the Civil Court has not given any finding
that the applicants had filed the forged death certificate and (ii) that the
respondent has not placed any evidence on record to show that he had
initiated any proceedings to find out as to whether the death certificate
relied upon by the applicants in the Civil Court was a genuine document or
not.
Whether the Civil Court had not given any finding that the applicants
had filed the forged death certificate.
24. The applicants have placed the copy of the judgment passed by the
Civil Court on 14/12/2017 in Civil Suit No. 27-A/2016. Para 20 of the
aforesaid judgment reads as under:-
“20- j/kqohj oknh lk{kh dz0 1 }kjk oknxzLr Hkwfe ds laca/k esa
fu”ikfnr fodz;i= e.khjke dh e`R;q ds 19 ekg i’pkr~
fu”ikfnr djk;k x;k gS] bl dkj.k fodz;i= QthZ rFkk
dwVjfpr gS] dk vfHkokpu djrs gw, nkok is’k fd;k x;k gS
rFkk U;k;ky; ds le{k e`R;q izek.ki+= iz0ih02 is’k fd;k x;k
gS] og oknh ds vujqlkj vfHkdfFkr fnukad 2@4@1987 ds
iPphl o”kZ i’pkr~ rS;kj djk;k x;k gS A fnukad 3@9@2012
ds iwoZ e.khjke dk e`R;q izek.ki= oknh }kjk D;ksa tkjh djk;k
x;k Fkk] ds laca/k esa dksbZ Li”V vfHkopu oknh }kjk ugha fd;k
x;k gS ] tcfd e.khje dh e`R;q fnukad 2@4@1987 dks gh
gqbZ Fkh] dks izekf.kr djus gsrq oknh dks o””kZ 1987 esa xzke
vkjksu ds dksVokj dh iath U;k;ky; ds le{k is’k dh tkuh
pkfg, Fkh] ftlls ;g lqfuf’pr fd;k tk ldrk fd e.khjke
21dh e`R;q fnukad 2@4@1987 dks gh gqbZ gS vFkok ugha A
25. Thus, it is clear that Civil Court had not relied upon the death
certificate filed by the applicants by giving specific finding that suspicious
circumstances attached to this document have not been clarified by the
applicants or in nutshell it can be said that Civil Court has also found that
the death certificate relied upon by the applicants is a suspicious document.
Furthermore, the applicants have also filed copy of the death certificate as
Annexure P/7 which is at page 51 of the application. According to this
death certificate, the date of death of Maniram Gwal is 2/4/1987. However,
the aforesaid fact was got registered by the applicants on 28/7/2021 and
death certificate was also issued on 28/7/2021. Necessary entries made in
the death certificate reads as under:-
“iathdj.k rkjh[k@ DATE OF REGISTRATION:
28-07-2021
tkjh djus dh frfFk@ DATE OF ISSUE:
28-07-2021
UPDATED ON:
28-07-2021 13:16:17″
26. The Civil Court has raised its concern about the fact that if Maniram
Gwal had expired on 2/4/1987 then why the applicants got his death
registered on 3/9/2012 has not been clarified. Furthermore, the Civil Suit
was filed in the year 2016. When this Court was going through the findigns
recorded by the trial Corut then it was found that the certificate which was
issued on 28/7/2021 which has been filed as Annexure P/7 and is at page
51 of the application was never filed before the Civil Court and it is not the
subject matter of the complaint but one death certificate dated 3/9/2012
was filed before the Civil Court and the Civil Court had raised an
22
suspicion that if Maniram had expired on 2/4/1987 then why the death
certificate was obtained on 3/9/2012 i.e. after 25 years of the death of
Maniram.
27. Annexure P/7, which is the death certificate filed alongwith this
application was issued on a subsequent date i.e. 28/7/2021 but if the
findigns given by the trial Court are considered then it is clear that death
certificate which is subject matter of the complaint was issued on 3/9/2012
i.e. after 25 years of death of Maniram Gwal. No explanation has been
given by the applicants as to why the death certificate was got issued after
25 years of death of Maniram Gwal.
28. Be that whatever it may be.
29. Once the Civil Court has given a finding that the death certificate
dated 3/9/2012 filed by the applicants before the Civil Court appears to be
a suspicious document then for the purposes of taking cognizance it can be
said that there is a sufficient ground for the trial Court to rely on the
findings because the findings given by the Civil Court can have some
relevance in the criminal proceedings. Furthermore, as already held, the
civil proceedings and the criminal proceedings can go on simultaneously.
Therefore, the first reasoning assigned by the trial Magistrate to dismiss
the complaint under Section 203 of Cr.P.C. cannot be upheld and therefore,
it was rightly rejected by the revisional Court.
Whether the respondents should have initiated proceedings for
examining the genuineness of death certificate dated 3/9/2012 relied
upon by the applicats before the Civil Court or not:
30. As already pointed out, the trial Magistrate is required to see as to
whether there is a sufficient ground for taking cognizance or not. Full
fledged enquiry to find out as to whether the suspect can be convicted or
23
not cannot be done at that stage. As already pointed out, the findings
recorded by the Civil Court may have some relevance. If Maniram had
expired on 2/4/1987 then why the death certificate was obtained for the
first time on 3/9/2012 has also not been explained. Furthermore, applicants
have filed the death certificate dated 28/7/2021 and this Court has already
reproduced certain entries made in the aforesaid death certificate which
clearly show that another death certificate was obtained on 28/7/2021.
31. Since the death certificate filed by the applicants as Annexure P/7 is
not the subject matter of the complaint, therefore, for all practical
purposes, it is ignored. One thing is clear that once the Civil Court has
raised a suspicion with regard to the genuineness of death certificate dated
3/9/2012 and has refused to rely on the same and dismissed the suit filed
by the applicants then in the considered opinion of this Court, there is
sufficient ground for the Magistrate to take cognizance. However, counsel
for the applicants is also right in submitting that a specific direction should
not have been given to the Magistrate to take cognizance for offence under
Sections 120-B, 471, 417 of IPC.
32. Accordingly, it is directed that the trial Magistrate shall take
cogniance of offences which are made out without getting influenced or
prejudiced by the directions given by the revisional Court and can also take
cognizance for some other offence which is not mentioned in the order
passed by the revisional Court.
33. With the aforesaid observations, the revision is dismissed.
(G.S.AHLUWALIA)
JUDGE
jps/-
JAI PRAKASH
SOLANKI
2025.01.10
15:37:09 +05’30’
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