# Shamshad Ahmad Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-29
- **Case number:** Criminal Revision No. 5401 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamshad-ahmad-revisionist-v-state-of-u-p-anr-49246
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3), 397,
401 - Forgery and Fraud - Application for
Police
Investigation
-
Civil
and
Criminal
Proceedings - Judicial Discretion of Magistrate -
The revisionist, Shamshad Ahmad, challenged
the order dated 27.06.2022 by the Additional
Chief
Judicial
Magistrate,
Muzaffarnagar,
dismissing his application under Section 156(3)
Cr.P.C. for police investigation into an alleged
forged Will deed dated 20.10.2005, purportedly
executed by his deceased father, Hazi Anwarul
Haq, in favor of the opposite party, Ansar Khan.
The revisionist alleged that the Will, notarized
by Jamiruddin (who died on 17.01.1998, as per
a death certificate), was forged to unlawfully
claim his father's share in jointly purchased
properties.
The
Magistrate
dismissed
the
application, deeming the matter civil in nature
due to a pending civil suit (No. 503 of 2019) and
suggesting the revisionist could pursue a
complaint case. Previous revisional orders had
set aside similar dismissals, directing fresh
consideration. Held: The court, relying on Prem
Das Vs St. of U.P. (Matter Under Article 227 No.
1328 of 2021) and other precedents, held that
the
Magistrate
erred
in
dismissing
the
application without adequately considering
the
prima
facie
evidence
of
forgery,
particularly the death certificate of the notary
predating the Will's execution. The court
emphasized
that
civil
and
criminal
proceedings can coexist for the same facts if
a cognizable offence is disclosed, and police
investigation was necessary due to the
complexity of the forgery allegations. The
revision was allowed, the impugned order was
set aside, and the matter was remitted to the
Magistrate
for
fresh
consideration
with
directions to decide in accordance with law.

Case Law Cited:

## Text

148 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionists from the date of application.
The arrears of maintenance allowance shall
be paid by the opposite party No.2 in four
equal amounts at the gap of four months.
The monthly interim maintenance shall be
paid regularly till 7th day of each month.

21. The present criminal revision is
allowed in terms of above mentioned
conditions.

22. The copy of the order be sent to
the trial Court concerned for necessary
compliance, forthwith.
----------
(2024) 3 ILRA 148
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2022
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 5401 of 2022

Shamshad Ahmad ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Manoj Kumar Singh, Sri S.C. Singh (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri M.J. Akhtar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3), 397,
401 - Forgery and Fraud - Application for
Police
Investigation
-
Civil
and
Criminal
Proceedings - Judicial Discretion of Magistrate -
The revisionist, Shamshad Ahmad, challenged
the order dated 27.06.2022 by the Additional
Chief
Judicial
Magistrate,
Muzaffarnagar,
dismissing his application under Section 156(3)
Cr.P.C. for police investigation into an alleged
forged Will deed dated 20.10.2005, purportedly
executed by his deceased father, Hazi Anwarul
Haq, in favor of the opposite party, Ansar Khan.
The revisionist alleged that the Will, notarized
by Jamiruddin (who died on 17.01.1998, as per
a death certificate), was forged to unlawfully
claim his father's share in jointly purchased
properties.
The
Magistrate
dismissed
the
application, deeming the matter civil in nature
due to a pending civil suit (No. 503 of 2019) and
suggesting the revisionist could pursue a
complaint case. Previous revisional orders had
set aside similar dismissals, directing fresh
consideration. Held: The court, relying on Prem
Das Vs St. of U.P. (Matter Under Article 227 No.
1328 of 2021) and other precedents, held that
the
Magistrate
erred
in
dismissing
the
application without adequately considering
the
prima
facie
evidence
of
forgery,
particularly the death certificate of the notary
predating the Will's execution. The court
emphasized
that
civil
and
criminal
proceedings can coexist for the same facts if
a cognizable offence is disclosed, and police
investigation was necessary due to the
complexity of the forgery allegations. The
revision was allowed, the impugned order was
set aside, and the matter was remitted to the
Magistrate
for
fresh
consideration
with
directions to decide in accordance with law.

Case Law Cited:

1. Sukhwasi Vs St. of U.P., 2007 ACC 739 (DB)

2. Prem Das Vs St. of U.P. & 5 Others, Matter
Under Article 227 No. 1328 of 2021

3. Smt. Sadhana Devi Vs St. of U.P., 2007 (1)
JIC 523 (All)

4. Ram Gopal Vs St. of U.P., 2011 (2) JIC 314
(All) (LB)

5. Amar Pal Singh Vs St. of U.P., 2002 (I) JCrC
(HC) 241

6. Vinod Natesan Vs St. of Kerala, 2019 (1) JCrC
235

7. Prof. R.K. Vijayasarthy Vs Sudha Seetharam,
2019 (1) JCrC 728

8. Rajesh Bhai Muljibhai Patel Vs St. of Guj.,
2020
(1)
U.C.
609
3 All. Shamshad Ahmad Vs. State of U.P. & Anr.
149
(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri S. C. Singh, learned
Senior Advocate assisted by Sri Manoj
Kumar Singh, learned counsel for the
revisionist, Sri M.J. Akhtar, learned counsel
for the respondent No.2 as well as learned
A.G.A. for the State.

2. By means of instant criminal
revision under Section 397/401 Cr.P.C., the
revisionist has assailed the impugned order
dated
27.6.2022,
passed
by
learned
Additional Chief Judicial Magistrate, Court
No.2, Muzaffar Nagar in Misc. Application
No.4911/09 of 2020, under Section 156(3)
Cr.P.C. By the impugned order, learned
Magistrate has dismissed the application
filed by the applicant, who is revisionist,
before this Court.

3. The factual matrix of the case
leading to filing of present revision are that
the applicant Samshad Ahmad moved an
application under Section 156(3) Cr.P.C.
before
the
court
of
Chief
Judicial
Magistrate, Muzaffar Nagar on 3.1.2020,
stating therein that her father late Hazi
Anwarul Haq had purchased two properties
situated
at
Kasba
Khatauli,
District
Muzaffar Nagar on 9.7.1982 and 13.9.1993,
jointly with Ansar Khan, the opposite party
and both of them occupied their respective
shares in said properties. On 11.7.2007,
Anwarul Haq, the father of the applicant
died. The applicant became owner in
possession of the share of his father in the
said prosperties together with brothers
namely Subhan Ali and others. Applicant
and his brothers executed two separate sale
deeds in the name of Salma Beg, wife of
Azhar Beg and Azhar Beg, son of Asgar
Beg with regard to their respective share in
said property inherited from their father.
The purchaser came into possession of said
property after sale deed dated 19.9.2019.
The applicant received a summon from trial
court, from which he came to know that
some civil suit has been filed by Ansar
Khan against the applicant. The applicant
visited the place of Ansar Khan on
24.9.2019, at 6:00 PM where he was
present alongwith his two companions. The
applicant tried to gather information
regarding suit whereupon Ansar Khan
became enraged and he abused them and
showed him a photocopy of a forged Will
deed and stated that he had got a forged
Will deed prepared in the name of his
father and on the strength of that, he would
forcefully took possession of the property.
The photocopy of Will deed dated
20.10.2005, is apparently false, forged and
fictitious, which has been prepared by the
opposite party Ansar Khan with the help of
his unknown accomplishes, in which
signature of Hazi Anwarul Haq and witness
Salimuddin are completely forged. The
Will has been prepared by opposite party
only with intent to grab the said property.
The applicant has filed a report of private
handwriting and finger print expert, which
reveals that admitted signature of the
executant is not appended thereon. The
Notary Public Jamiruddin, who is shown to
have notarized the disputed Will has died
around 6 years ago, the date of alleged Will
deed. The said Will deed is a result of fraud
committed
by
opposite
party
with
assistance of his companions. There is no
blood relation between late father of the
applicant and opposite party. The applicant
prayed for issuing direction to SHO
concerned to register a case and investigate
the same in his application under Section
156(3) Cr.P.C.

4. Learned ACJM, Court No.1,
Muzaffar
Nagar,
vide
order
dated
150 INDIAN LAW REPORTS ALLAHABAD SERIES
14.10.2020, directed the registration of the
application as a complaint case in the light
of pronouncement of a Division Bench of
this Court in Sukhwasi vs. State of U.P.,
2007 ACC 739 (DB) and fixed the case for
recording of statement under Section 200
Cr.P.C. Feeling aggrieved by this order, the
applicant filed a Criminal Revision before
the court of Session, which was decided by
learned Additional Session Judge, Court
No.1, Muzaffar Nagar on 19.1.2021 and
impugned order dated 14.10.2020 was set
aside and the lower court was directed to
decide the application under Section 156(3)
Cr.P.C. within one month in the light of
legal position stated in the revisional order.
Learned revisional court observed that the
case law cited on behalf of the respondent
No.2 i.e. Smt. Sadhana Devi vs. State of
UP, 2007 (1) JIC 523 (All), Ram Gopal
vs. State of UP, 2011 (2) JIC 314
(All)(LB), Amar Pal Singh vs. State of
UP 2002 (I) JcrC (HC) 241, Vinod
Natesan vs. State of Kerala, 2019 (1)
JcrC 235, Prof. R.K. Vijyasarthy vs.
Sudha Seetharam, 2019 (1) J.Cr.C. 728,
Rajesh Bhai Muljibhai Patel vs. State of
Gujarat, 2020, (1) U.C., 609 are not
applicable to the facts of the present case
and observed that the disputed facts in the
case could only be cleared and verified
during investigation and on the facts of the
case, the learned lower court has committed
jurisdictional
error
while
passing
an
impugned order and failed to exercise
jurisdiction vested in it with regard to
prayer made by the applicant.

5. Learned Magistrate, after
receiving the certified copy of the order of
Revisional Court, heard the applicant's
counsel
afresh
on
Original
Misc.
Application under Section 156(3) Cr.P.C.
and by order dated 3.3.2021, observed as
under:

"After
going
through
the
application, order of revisional court and
the documents
placed
alongwith the
application, I do not find any ground to
direct the investigation under Section
156(3) Cr.P.C. Facts and circumstances of
the
present
case
although
disclose
commission of cognizable offence but in
this case all the information and details are
in the possession of the applicant and his
witnesses. The applicant may move an
application for the registration of FIR after
civil court decision on disputed Will.
Furthermore, if at any stage, the court
thinks that investigation is required, the
same may be referred under Section 202
Cr.P.C. and police assistance may be taken.
It seems that the applicant wants to put
pressure on the other side by registration of
the FIR. This is so on account of the fact
that once an FIR is registered, the other
side namely, accused persons would be on
the run because they will face an imminent
threat of arrest and secondly, it becomes
convenient for the complainant as well
because it becomes a State case where the
presence of the complainant is not required
on each and every date of hearing. That is
the modus operandi, which is invariably
adopted and aimed at by the every
applicant."

6. With above observation, the
learned magistrate, has re-written the order
set aside in criminal revision and directed
the office clerk to register the case as
complaint and complainant was directed to
be present before the court on the date
fixed for recording of his statement under
Section 200 Cr.P.C.

7. The applicant again, feeling
aggrieved by the impugned order dated
3.3.2021, passed by the learned Magistrate,
preferred a criminal revision before the
3 All. Shamshad Ahmad Vs. State of U.P. & Anr.
151
Court of Session, which was registered as
Criminal Revision No.84 of 2021, Samshad
Ahmad vs. State of UP and Another, which
was decided by the revisional court on
8.3.2022 and the revision was allowed and
impugned order 3.3.2021 passed by a
subordinate
court
was
quashed. The
revisional court directed the court below to
hear afresh on application under Section
156(3) Cr.P.C. in the light of observations
made in previous criminal revision No.82
of 2020 on 19.1.2021, after giving
opportunity of hearing to both parties and
pass a lawful order thereon. Learned
Revisional
Court
observed
that
the
impugned order passed by the learned
Magistrate dated 3.3.2021 was clear in
violation of the observations of Additional
Session Judge, in revisional order dated
19.1.2021, passed in Criminal Revision
No.82 of 2020.

8. Present respondent No.2 filed a
criminal revision before this Court against
said order dated 8.3.2022 passed in
Criminal Revision No.84 of 2021, which
is cited as Criminal Revision No.1183
of 2022, Ansar Khan and others vs.
State of UP and Another. In said
criminal revison, an apprehension was
raised
before
this
court
by
the
revisionist's counsel that in view of
observations made by the court of
Session in Criminal Revision No.82 of
2020, decided on 19.1.2021, learned
magistrate under circumpressure may
pass some unjust judicial order to
abrogate
his
misgivings
as
the
reivsional court in second revision, vide
order dated 8.3.2022, has directed the
Magistrate for revisiting his order
denovo
in
the
light
of
certain
guidance/guidelines given in previous
criminal Revision No.82 of 2020, decided
on 19.1.2021.

9. This Court decided the Criminal
Revision No.1183 of 2022, vide order dated
31.3.2022 with observation that "Learned
Magistrate, concerned is hereby directed to
apply his own independent judicial mind
unaffected by any of the observations given
by revisional court while deciding the
Criminal Revision No.84 of 2021 as well as
earlier Revision No.82 of 2020, and pass a
suitable and well reasoned order, strictly
adhering to his robust judicial sense and the
law laid down in this regard within a period
of 8 weeks from the production of certified
copy of the order after hearing both the
parties.

10. Learned Additional Chief Judicial
Magistrate, Court No.2, Muzaffar Nagar,
revisited the issue afresh in the light of
observations made by this Court in said
Criminal Revision No.1183 of 2022 and
dismissed the application under Section
156(3) Cr.P.C. vide impugned order dated
27.6.2022, with observation that keeping in
view the order passed by the Hon'ble High
Court and considering the facts and
circumstances, he is of conclusion that the
matter is not liable to be investigated by the
Police and it is essentially of civil nature
and Original Suit No.503 of 2019 is already
pending in the Civil Court. The applicant is
in possession of the relevant documents on
the basis of which, the validity of the
disputed Will can be decided by the civil
court and in case of civil court comes to the
conclusion that the disputed notarized Will
deed is not a genuine document, due to the
fact that according to the Notary Public,
who is purported to have attested the Will
deed, died six years prior to its execution,
the
applicant
will
have
again
an
opportunity to register a criminal case.
According to the opinion of learned ACJM,
the matter is of not such nature that
requires
registration
of
a
case
and
152 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation by police, at this stage. The
applicant has not clarified as to how, he is
in possession of the said property covered
under disputed Will whereas he has himself
stated in the application that property in
question has been sold to Azhar Beg and
Salma Beg and the purchasers have
acquired their possession thereof. The
purchasers have not moved any complaint
before competent officer in this regard and
even the applicant has not moved any
application for mutation in his name on
property in question as a legal heir of the
executant of the Will. Learned Magistrate
placed reliance on the judgement of
Hon'ble High Court in Prem Das vs. State
of UP and 5 Others, Matter Under
Article 227 No.1328 of 2021, wherein this
Court observed as under:-

"16. It is therefore seen that upon
an application received under Section
156(3) of the Code disclosing a cognizable
offence, the Magistrate may direct the
police to register the F.I.R. and investigate
or alternatively the Magistrate can take
cognizance of the complaint, register it as
complaint case and follow the procedure
under Chapter XV of the Code. While
exercising this discretion and taking either
of the courses, it would be incumbent upon
the Magistrate to apply judicial mind and
the exercise of discretion would have to be
guided by interest of justice, depending
upon the facts of the case. In a situation
where the investigation required is of a
nature which can only be made by a police
officer
upon
whom
the
statute
has
conferred the powers of investigation, the
Magistrate
may
be
well
within
his
discretion to direct the registration of an
F.I.R. and its investigation by the police
officer. In a case where the complainant is
in possession of the complete details of the
case and also the material evidence, such
that 'investigation' by the police may not be
required, the Magistrate may follow the
procedure of a complaint case."

11.
Feeling
aggrieved
by
the
impugned order dated 27.6.2022, the
applicant had filed present revision before
this Court.

12. Learned counsel for the revisionist
submitted that the approach of learned
Magistrate was contrary to the notion of
judicial discipline as learned Magistrate has
re-written his over ruled order dated
14.10.2020 in Criminal Revision No.82 of
2020 and ignored the observations made by
Court of Session in Criminal Revision
No.82 of 2020, decided on 19.202021 and
by order dated 3.3.2021, this fact was
addressed by the Court of Session in
Criminal Revision No.84 of 2021, wherein
the Court of Session took strong exception
to the approach of the court below while
deciding the application afresh contrary to
the observations made by revisional court.
However, this Court in Criminal Revision
No.1183 of 2022, directed the Magistrate to
decide the application afresh and pass a
suitable, well reasoned order according to
his judicial sense applying his own
independent judicial mind unaffected by
any of the observations given by the
revisional court.

13. Learned counsel for the revisionist
further submitted that the impugned order
passed by learned court below is contrary
to law and established judicial authority on
the
subject
as
civil
and
criminal
proceeding, both can be maintainable in
regard to same set of facts, if cognizable
offence is clearly made out on the basis of
facts of the case. Respondent No.2, Ansar
Khan, is owner of the property, which was
jointly purchased by him and late Anwarul
3 All. Shamshad Ahmad Vs. State of U.P. & Anr.
153
Hasan in the year 2007, till then there was
co-ownership and there was no occasion of
executing the Will in favour of the
respondent No.2, who is not related to him
in any manner. The court below has twice
passed the order to register the application
under section 156(3) Cr.P.C. as a complaint
case and finally dismissed the same after
disposal of Criminal Appeal No.1183 of
2022, by this Court. The Civil Suit No.503
of 2019 has not been filed by the
revisionist. This is filed by the opposite
party No.2 to fortify his illegal claim over
disputed property on the basis of disputed
notarized Will deed propounded by him,
which is essentially fake and forged
document with intent to engulf the parental
property of the revisionist. The Notary
Public Advocate, Jamiruddin, died on
17.1.1998, as per his death certificate filed
by the revisionist in the lower court record.
Whereas, the disputed Will deed bears its
date of execution as 20.10.2005 and said
death certificate cold not be rebutted by the
respondent No.2 as yet. Inasmuch as, the
signature of Salimuddin as witness of said
Will deed is also forged but this aspect has
not been considered by the court below in
proper perspective. The impugned order is
not sustainable and is liable to be set aside
by orders of this Court.

14. Per contra, learned AGA as well
as learned counsel for the respondent No.2
submitted that the impugned order is well
reasoned order, in which all the attendant
facts and circumstances are duly considered
in the light of authoritative judicial
precedents and even after passing of
impugned order, whereby the application
under Section 156(3) Cr.P.C. moved by the
applicant has been dismissed, the applicant
is within his right to file a

 criminal complaint in the matter.

15.

Learned
counsel
for
the
respondent No.2 further submitted that
death certificate of Jamiruddin, Notary
Public, who has attested the Will dated
20.10.2005 is not a genuine document as
the place of death of Jamiruddin mentioned
therein is recorded in the name of Smt.
Roshan Ara, wife of Amir Ahmad. Present
application under Section 156(3) Cr.P.C.
was filed by the applicant after filing of
said civil suit by respondent No.2.

16. This is admitted fact that property
in question was purchased by father of the
revisionist and respondent No.2 jointly, on
9.7.1982 and 13.9.1993 by two sale-deeds
and
the
purchasers
occupied
their
respective shares in said property. This is
the case of the respondent No.2 Ansar
Khan that Hazi Anwarul Haq, father of the
revisionist and joint purchaser of the said
property executed a Will deed in favour of
the respondent No.2 on 20.10.2005, which
is unregistered but it was notarized by one
Jamiruddin, then Notary Public and the
father of the revisionist namely, Hazi
Anwarul Haq died on 11.4.2007 and there
is no dispute regarding date of death of
Hazi Anwarul Haq. According to the
revisionist, he accompanied with his
brothers became owner in possession of
this share of said property. Revisionist and
his brothers executed two separate sale
deed in the name of Salma Beg, wife of
Azhar Beg and Azhar Beg, son of Asgar
Beg with regard to their respective share in
said property inherited from their father.
Respondent No.2 has filed a civil suit for
injunction on the basis of Will deed dated
20.10.2005 executed by Hazi Anwarul Haq
in favour of Ansar Khan, the respondent
No.2. The genuineness of will is liable to
be adjudicated by the civil court. However,
this fact cannot lost sight that the
revisionist has filed death certificate of
154 INDIAN LAW REPORTS ALLAHABAD SERIES
Jamiruddin, the Notary Public, who attested
the unregistered Will deed propounded by
respondent No.2 in his favour and
according to the said death certificate, the
date of death of Jamiruddin is mentioned as
17.1.1998, at House No.786/1, Khalapar,
whereas the date of execution of said Will
date is shown as 20.10.2005, thus,
according to the death certificate of said
Notary Public, the genuineness of Will
deed comes under cloud. This fact is also
noticeable that no good ground could be
shown by respondent No.2 as to why the
father of revisionist namely, Hazi Anwarul
Haq, chose to bequeath his share of
property in favour of co-sharer of property
namely, Ansar Khan, excluding his own
sons. There is no legal bar with regard to
proceeding of civil and criminal case
simultaneously on similar set of facts. The
main consideration is that as to whether on
facts of the case put forth before the court
of first instance by the complainant, a
cognizable offence is made out or not. The
complaint was initally filed in the year
2020 and after lapse of more than 3 years
period, the respondent No.2 could not
produce any document in rebuttal of death
certificate
of
Notary
Public
namely,
Jamiruddin, placed on record by the
complainant/revisionist. The intricate facts
of the case need to be investigated by the
police as this is not of such nature that the
complainant will be able to produce
necessary documentary evidence in the
case on his own. This court is not inclined
to subscribe the view of the learned
Magistrate that the matter is essentially of
civil nature, where the allegations of fraud
and forgery are made and some material is
shown in support of the same, this should
not be termed as a matter essentially of
civil nature. In my considered opinion,
learned court below has committed a legal
error and impropriety by dismissing the
application moved by the revisionist under
Section 156(3) Cr.P.C. and impugned order
is not sustainable under law. On facts of the
case, the stand of the revisionist that matter
is
of
such
nature
that
it
requires
investigation by police under Section
156(3) Cr.P.C. appears to be forceful and
reasonable and learned court below should
have considered the case for issuing a
direction to police to register the case and
investigate the same.

17. In view of foregoing discussion,
the revision stands allowed and the
impugned order passed by learned court
below is set aside and the matter is remitted
to court below with direction to hear the
revisionist/complainant
afresh
on
application under Section 156(3) Cr.P.C. in
the light of observation made in this order
and decide the same in accordance with
law.
----------
(2024) 3 ILRA 154
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 5477 of 2023

(Juvenile) X ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Atul Kumar Shahi

Counsel for the Opposite Parties:
G.A.

Criminal Law - Juvenile Justice (Care and
Protection
of
Children)
Act,
2015
-
Sections
9,
94
-
Code
of
Criminal
Procedure, 1973 - Section 397 - Indian
Penal Code, 1860 - Sections 363, 366 &