# Smt. Nawab Begum & Ors v. State Of U.P. & Anr

- **Citation:** (2016) 8 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-31
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nawab-begum-ors-v-state-of-u-p-anr-44256
- **Pages:** 6

## Headnote

Criminal law - Section 482 Cr.P.C. - Quashing of entire proceedings - Case Crime No. 1042 of 2012 -
Sections 420, 467, 468, 471, 120-B, 506 and 34 I.P.C. - Forged Will - Fake death certificate - Mutation in
revenue records - Protest petition - Charge-sheet - Cognizance - Inordinate delay in lodging the F.I.R. -
Disputed question of fact - Prima facie case - Disputed defence - Pre-trial - Discharge application -
Applications dismissed.

The applicants by means of these applications, have invoked the inherent jurisdiction of this Court with prayer
to quash the entire proceedings of Case Crime No. 1042 of 2012, under Sections 420, 467, 468, 471, 120-B,
506 and Section 34 I.P.C., Police Station Kotwali, district Muzaffar Nagar and to stay the effect and operation
of the impugned orders dated 1.4.2014 and 12.12.2014 passed by Chief Judicial Magistrate, Muzaffar Nagar
taking cognizance on the charge-sheets filed under aforesaid sections in this matter.(Para 2)

Held: (Para:-16-18)
1.The applicants cannot be given any benefit on the basis of aforesaid judgment as the facts of the instant
case are entirely different. In the case of Savitri Pandey (supra), F.I.R. was lodged after a lapse of 19 years,
but it was lodged against as many as fifteen persons, without even assigning their separate roles. To the
contrary, in the instant case, specific roles have been assigned to the applicants and delay has also been
explained.
2.In wake of above discussion, both the applications appear to be devoid of merit and are liable to be
dismissed. The prayer for quashing the entire proceedings and impugned orders passed in the aforesaid cases
is liable to be refused.
3.Accordingly both these applications are dismissed. Interim order, if any stands vacated.

Case Law discussed:
1.R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866 - para 13
2.State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426 - para 13
3.State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 - para 13
8 All. Smt. Nawab Begum & Ors. Vs State Of U.P. & Anr.
361
4.Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283- para 13
5.A.R.C.J. Vs. Nimra Carglass Technics (P) Ltd., (2016) 1 SCC 348 - para 13
6.V.P. Srivastava Vs. Indian Explosives Ltd. & others, 2010 (SC) SCC 361 - para 9
7.Md. Ibrahim and others Vs. State of Bihar and another, 2010 (Sup) AIR (SC) 347 - para 9
8.Savitri Pandey and another Vs. State of U.P. and others, 2015 (90) ACC 721 - paras 9, 15, 16

## Text

360 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 360
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 12028 Of 2015
&
Application U/S 482 No.- 33103 Of 2014

Smt. Nawab Begum & Ors. ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rajjan Singh, M.J. Akhtar, Md. Imran Khan, V.M. Zaidi

Counsel for the Opposite Parties:
Govt. Advocate, Manish Tiwari

Criminal law - Section 482 Cr.P.C. - Quashing of entire proceedings - Case Crime No. 1042 of 2012 -
Sections 420, 467, 468, 471, 120-B, 506 and 34 I.P.C. - Forged Will - Fake death certificate - Mutation in
revenue records - Protest petition - Charge-sheet - Cognizance - Inordinate delay in lodging the F.I.R. -
Disputed question of fact - Prima facie case - Disputed defence - Pre-trial - Discharge application -
Applications dismissed.

The applicants by means of these applications, have invoked the inherent jurisdiction of this Court with prayer
to quash the entire proceedings of Case Crime No. 1042 of 2012, under Sections 420, 467, 468, 471, 120-B,
506 and Section 34 I.P.C., Police Station Kotwali, district Muzaffar Nagar and to stay the effect and operation
of the impugned orders dated 1.4.2014 and 12.12.2014 passed by Chief Judicial Magistrate, Muzaffar Nagar
taking cognizance on the charge-sheets filed under aforesaid sections in this matter.(Para 2)

Held: (Para:-16-18)
1.The applicants cannot be given any benefit on the basis of aforesaid judgment as the facts of the instant
case are entirely different. In the case of Savitri Pandey (supra), F.I.R. was lodged after a lapse of 19 years,
but it was lodged against as many as fifteen persons, without even assigning their separate roles. To the
contrary, in the instant case, specific roles have been assigned to the applicants and delay has also been
explained.
2.In wake of above discussion, both the applications appear to be devoid of merit and are liable to be
dismissed. The prayer for quashing the entire proceedings and impugned orders passed in the aforesaid cases
is liable to be refused.
3.Accordingly both these applications are dismissed. Interim order, if any stands vacated.

Case Law discussed:
1.R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866 - para 13
2.State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426 - para 13
3.State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 - para 13
8 All. Smt. Nawab Begum & Ors. Vs State Of U.P. & Anr.
361
4.Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283- para 13
5.A.R.C.J. Vs. Nimra Carglass Technics (P) Ltd., (2016) 1 SCC 348 - para 13
6.V.P. Srivastava Vs. Indian Explosives Ltd. & others, 2010 (SC) SCC 361 - para 9
7.Md. Ibrahim and others Vs. State of Bihar and another, 2010 (Sup) AIR (SC) 347 - para 9
8.Savitri Pandey and another Vs. State of U.P. and others, 2015 (90) ACC 721 - paras 9, 15, 16

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. Both these applications under section 482 Cr.P.C., were connected vide order dated
23.8.2016 of this Court and are hereby being decided by this common order.

2. The applicants by means of these applications, have invoked the inherent jurisdiction of
this Court with prayer to quash the entire proceedings of Case Crime No. 1042 of 2012, under
Sections 420, 467, 468, 471, 120-B, 506 and Section 34 I.P.C., Police Station Kotwali, district
Muzaffar Nagar and to stay the effect and operation of the impugned orders dated 1.4.2014 and
12.12.2014 passed by Chief Judicial Magistrate, Muzaffar Nagar taking cognizance on the chargesheets filed under aforesaid sections in this matter.

3. Heard Sri V.M. Zaidi, learned counsel for the applicants, Sri Manish Tiwary, learned
counsel for opposite party no. 2 as well as learned A.G.A. representing the State. Perused the
record.

4. Some background facts, in brief, are that an F.I.R. was lodged by O.P. No.
2/complainant Syed Hussain at Police Station Kotwali, district Muzaffar Nagar on 21.9.2012
stating therein that he resides at Aligarh and his brother resides at Noida. Their mother Late
Manzoor Fatma was a resident of village Bilaspur, Police Station Nai Mandi, district Muzaffar
Nagar. The accused applicants, fabricated a forged Will of Manzoor Fatima with intention to grab
her property showing therein that Manzoor Fatima has bequeathed all her property to accused
applicants Mohd. Shahid and Mohd. Suhail i.e. the two sons of accused applicant Mohd Arif. Then
they prepared a fake death certificate before her death showing that Late Manzoor Fatma had died
on 25.3.2004 whereas, she died on 15.1.2006 in Aligarh Medical Hospital. It was further alleged in
the F.I.R. that Mohd. Shahid and Mohd. Suhail in connivance with other accused persons, got their
names mutated in the revenue records on the basis of the aforesaid forged Will and death
certificate. When first informant came to know about all these facts, he filed his objection before
the revenue court and lodged the F.I.R. against the applicants on 21.9.2012.

5. However, the I.O. after concluding the investigation submitted Final Report in the matter
on 8.11.2013. Against the Final Report, opposite party no. 2 filed protest petition on 1.1.2013,
which was allowed by learned C.J.M., Muzaffar Nagar vide order dated 20.5.2013 and the I.O. was
directed to conduct further investigation in the case. After further investigation, the I.O. submitted
charge-sheet in the matter on 13.3.2014 against the applicants Mohd. Suhail and Mohd. Shahid on
which cognizance was taken by learned C.J.M. vide impugned order dated 1.4.2014. Later,
362 INDIAN LAW REPORTS ALLAHABAD SERIES

chargesheet against applicants Mohd. Arif, Smt. Nawab Begum and Zahoor Mehdi on 2.12.2014,
on which the learned Magistrate took cognizance by the impugned order dated 12.12.2014.

6. Both these orders of taking cognizance against the applicants have been challenged
before this Court by learned counsel for the applicants, contending that Manzoor Fatima, who was
the owner of the disputed property, was the real sister of the father of applicant Mohd. Arif. It is
contended that she executed a Will dated 3.2.1998 in favour of minor sons of Mohd Arif. At that
time no body in the family raised objection against the said Will. After her death the applicants
Mohd. Shahid and Mohd. Suhail applied for mutation of their names over the property in dispute
and as there was no objection from any one at that time, the mutation was done on 19.6.2006 but
even at the time of mutation there was no objection by the opposite parties. It was only after a long
gap of 14 years from the alleged fabrication of Will, the O.P. No. 2 lodged the F.I.R. against the
applicants on 21.9.2012. The police, without taking into consideration this inordinate delay and
without a proper investigation submitted charge-sheets against the applicants including even the
two minors namely Mohd. Shahid and Mohd. Suhail. The learned Magistrate also, without
application of mind to these facts, mechanically took cognizance on the said charge-sheets.

7. It is further contended that applicant no. 3 filed a suit for partition of the disputed
property on 21.12.2012 in which a family settlement took place in the year 2014 and as per terms
of settlement, Mohd. Shahid and Mohd. Suhail, i.e. the two sons Mohd. Arif, gave up their claims
in favour of the complainant/opposite party no. 2. Accordingly, the names of Mohd. Shahid and
Mohd. Suhail were struck down from the revenue records and the names of heirs of Late Manzoor
Fatma were recorded in their place, hence the dispute got finally settled between the parties.

8. The grievance of the applicants is that despite the family settlement and even after the
names of Mohd. Shahid and Mohd. Suhail being struck down from the revenue records, the
opposite party no. 2 moved the protest petition against the applicants.

9. Learned counsel has next contended that there is inordinate delay of about more than 14
years in lodging the F.I.R., which makes the prosecution case wholly doubtful and clearly shows
that it was lodged with malafide intention, just in order to harass the applicants. It is further
contended that no offence under Section 420 or 120-B I.P.C. is made out against the applicants due
to lack of "mensrea" on their part as there was no intention either to cheat or to deprive the first
informant or any other persons from his property. Learned counsel has submitted that neither the
alleged forged Will, nor the alleged forged death certificate, was ever used by the applicants. Hence
there was no wrongful gain to the applicants and no wrongful loss to the opposite party no. 2.
Moreover, the alleged Will being unregistered, was like a waste paper and the applicants were not
benefited in any manner due to this Will. Learned counsel has lastly argued that as at the time of
execution of Will, both applicants Mohd. Shahid and Mohd. Suhail were minors, hence no offence
is made out against them. In support of his contention learned counsel for the applicants has placed
reliance on the judgments passed by Hon'ble Supreme Court in the cases of V.P. Srivastava Vs.
Indian Explosives Ltd, & others; 2010 (SC) SCC 361, Md. Ibrahim and others Vs. State of
8 All. Smt. Nawab Begum & Ors. Vs State Of U.P. & Anr.
363
Bihar and another; 2010 (sup) AIR (SC) 347 and Savitri Pandey and another Vs. State of U.P.
and others; 2015 (90) ACC 721.

10. Per contra, learned counsel for opposite party no. 2 has contended that the crime was
completed when the applicants, with dishonest intention, had prepared the forged Will and had
fabricated the death certificate showing the date of death of mother of opposite party no. 2 as
25.3.2004, where as, she actually died on 15.1.2006 as per medical college records, where she
breathed her last. It is further contended that no compromise or settlement, ever took place between
the applicants and opposite party no. 2 and if merely due to fear of their conviction, the applicants
gave up their claims in favour of the complainant, it cannot be said that it was due to some
settlement and no offence was committed by them. Learned counsel for the opposite party no. 2 has
submitted that there is sufficient prima facie evidence available in support of the fact that the
applicants manufactured the forged death certificate and Will with fraudulent and dishonest
intention, which is clearly evident from the fact that the applicants got mutated their names in the
revenue records on the basis of those false and fake documents and when their guilty conduct was
detected, they gave up their claims even after the mutation of their names in the revenue records.

11. With regard to delay in lodging the F.I.R., learned counsel for opposite party no. 2 has
submitted that the delay has been properly explained by the complainant in the F.I.R. itself. The
applicants and his brother, who are the two sons of Late Manzoor Fatima were living outside in
connection with their job. Hence they could not get any knowledge about the act of accused
applicants and as soon as they got the knowledge about the preparation of forged will and forged
death certificate, and about the mutation of the names of sons of Mohd. Arif in revenue records,
they lodged the F.I.R. Moreso, the charge-sheet and the entire proceedings of criminal case cannot
be quashed only on the ground of delay in lodging the F.I.R. specially, when the delay has been
properly explained. It is further contended that the applicants have used the forged death certificate
in the mutation proceedings and on the basis of those false papers, their names were entered into
the revenue record. Hence it cannot be said that there was no wrongful gain to the applicants. It is
further submitted that whatever has been argued by learned counsel for the applicants is the
proposed disputed defence which, as per settled legal position, cannot be looked into at the
threshold of a case i.e. at the very initial stage when only charge-sheet has been filed. It is lastly
submitted that no benefit can be given to the applicants on the basis of the case laws cited by
learned counsel for the applicants because the facts before the Hon'ble Supreme Court in all these
cases are entirely different from the facts of instant case.

12. Considered the rival submissions advanced by the parties.

13. From the perusal of the material on record and looking into the facts of the case, at this
stage it cannot be said that no offence is made out against the applicants. All the submissions made
at bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in
exercise of power conferred under Section 482 Cr.P.C.. At this stage only prima facie case is to be
seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of
364 INDIAN LAW REPORTS ALLAHABAD SERIES

Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and recently in A.R.C.J. Vs. Nimra
Carglass Technics (P) Ltd. (2016) 1 SCC 348. The submissions made by the learned counsel for
the applicants call for adjudication on pure questions of fact which may be adequately adjudicated
upon only by the trial court and while doing so even the submissions made on points of law can
also be more appropriately gone into by the trial court in this case. This Court does not deem it
proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. All the
submissions made at bar by Sri V.M. Zaidi, learned counsel for the applicants, are the disputed
defence of the accused, which cannot be considered at this stage. Moreover, the applicants have got
a right of discharge through a proper application for the said purpose and they are free to take all
the submissions taken here in the said discharge application before the Trial Court.

14. I have carefully gone through all the judgments cited by learned counsel for the
applicants and I am of the considered view that none of these judgments are applicable to the
instant case.

15. Much stress has been laid by learned counsel for the applicants on the delay in lodging
the F.I.R. in the instant case, relying on the law laid down in Savitri Pandey's case (supra) in
which the Hon'ble Apex Court had quashed the F.I.R.

16. The applicants cannot be given any benefit on the basis of aforesaid judgment as the
facts of the instant case are entirely different. In the case of Savitri Pandey (supra), F.I.R. was
lodged after a lapse of 19 years, but it was lodged against as many as fifteen persons, without even
assigning their separate roles. To the contrary, in the instant case, specific roles have been assigned
to the applicants and delay has also been explained.

17. In wake of above discussion, both the applications appear to be devoid of merit and are
liable to be dismissed. The prayer for quashing the entire proceedings and impugned orders passed
in the aforesaid cases is liable to be refused.

18. Accordingly both these applications are dismissed. Interim order, if any stands vacated.

19. However, it is open for the applicants to move the discharge applications before the
court concerned at the appropriate stage and to put forth all the aforesaid submissions before the
trial court and if any such application is moved by them before the court concerned, it shall be
disposed of by a reasoned order.
-----------
8 All. Smt. Girja Devi & Ors. Vs State Of U.P. & Anr.
365
(2016) 8 ILRA 365
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Application U/S 482 No.- 23654 Of 2016

Smt. Girja Devi & Ors. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Divya Ojha

Counsel for the Opposite Parties:
G.A.

Criminal law -Section 482 CrPC - Criminal Appeal - Order of acquittal - Case instituted upon complaint
- Section 378(4) CrPC - Special leave to appeal - Without grant of leave - Proceedings illegal and without
jurisdiction - Subhash Chand Vs. State (Delhi Admin) - Proceedings stayed.

The proceedings of criminal Complaint Case No. 2133 of 2014 (Smit. Prema Devi Vs. Smt. Girja Devi & others)
was carried out for prosecution on four accused persons (present applicants) for offences under sections 500
and 501 IPC. After affording opportunity to prosecution and defence side, the Judicial Magistrate, Court No.-
10, Jhansi had passed judgment dated 12.2.2015 by which accused persons were acquitted of the
charges.(Para 2)

Against said judgment dated 12.2.2015 passed by the trial court, a Criminal Appeal No. 23 of 2015 (Smt.
Prema Devi Vs. State of UP & others) was preferred by complainant of the original case. In this appeal the
respondents (present applicants) had moved application 16-B for quashing the proceedings of the said appeal.
After affording opportunity of hearing to the parties, the Additional Sessions Judge, Court No.-10, Jhansi has
rejected the said Application No. 16-B and fixed the date for hearing of the appeal. Against said order of
Sessions Court, present application has been preferred by accused of original case.(Para 3)

Held: (Para:-8,9,13)
1.This is settled legal position that without any formal grant of leave to appeal by High Court, the proceedings
of appeal on behalf of complainant cannot be carried out against order of acquittal in case instituted upon
complaint. If no special leave is granted to complainant, he cannot appeal against order of acquittal in
complaint case.
2.Therefore the arguments of learned counsel for the applicants are apparently acceptable.
3.Till further orders, proceedings of Criminal Appeal No. 23 of 2015, Smt. Prema Devi Vs. State of UP &
others, under section 372 CrPC, police station Prem Nagar, District Jhansi pending in the court of Addl.
Sessions Judge, Jhansi shall remain stayed.

Case Law discussed: