The accused-petitioner has the right to be heard in opposition to the contentions of the prosecution/complainant protesting against the Final Report submitted by the police before the trial court, especially considering the pending probate proceedings.

1. - Heard learned counsel for the petitioner and the learned Public Prosecutor at the admission stage its elf.

2. This petition has been directed against the order dated 19.3.1998 passed by the learned Chief Judicial Magistrate, Nagaur in Criminal Case No. 42/97.

3. The facts giving rise to the present petition are that Mohan Lal informant lodged a report with the Police Station, Nagaur, against the accused-petitioner for alleged falsification and forgery of Will etc. in respect of which probate proceedings having been initiated by the accused-'petitioner and are pending and, consequently, as a result of investigation, a Final Report (negative) has been filed by the police concluding that no offence was made out. However, before the learned Chief Judicial Magistrate proceeded to take cognizance of offence, if any, against the accused- petitioner on the basis of police report so filed, the petitioner moved an application before the Chief Judicial Magistrate that before final order for taking cognizance of any offence against the petitioner is passed, he should be allowed to be heard in opposition to the contentions of the prosecution/complainant protesting against the Final Report submitted by the police and, vide the impugned order, the learned Chief Judicial Magistrate disallowed this application and hence this petition.

4. The only grievance agitated by the learned counsel for the petitioner is that since the brobate proceedings in respect of same Will are pending before a competent Civil Court and on the first information of respondent Mohan Lal, FIR was registered and, as a result of investigation, no offence was found to have been committed resulting in Final Report (negative) being filed in the Court and, therefore, the accused-petitioner apprehending that the first informant by way of protest petition before the learned Chief Judicial Magistrate, would still insist upon for taking cognizance of the alleged offences and, therefore, the petitioner is within his right to appear and submit before the trial Court his contentions to show that no offence was committed and, besides, civil proceedings by way of probate proceedings are pending before the competent Court which could in due course hold as to what after the Will was a forged document or not and, therefore, in case the impugned order is allowed to stand, the same would occasion a failure of justice warranting its quashment.

5. On consideration of these contentions and besides hearing the learned Public Prosecutor, without any precedent, in view of the fact that probate proceedings are so pending as submitted by the learned counsel for the petitioner and, accordingly, there does not appear any justification for pre-emptying order of cognizance, if any, pursuant to impugned order but, however, this petition is disposed of in limine with the observations that in case any cognizance of the alleged offences is taken against the accused-petitioner, on his appearance before the trial Court, in the first instance, the petitioner shall be within his competence and power to request the trial Court to hear him in regard to the validity and legality of taking cognizance of the offences, if any, against the accused-petitioner in which he is called upon to face, to be disposed of before proceeding further with the trialThis petition along with stay petition is disposed of with the aforesaid observations at the initial stage.Petition disposed of.

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