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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, BENCH AT JAIPUR
PRASHANT KUMAR AGARWAL, J.
Bhagwan Sahai & Anr – Appellant
Vs.
Manoj Kumar – Respondent
S.B.CIVIL WRIT PETITION NO.4014/2015
Decided On : 05-05-2016
Civil Law - General Rules (Civil), 1986 - Rule 181 - Criminal Procedure Code, 1973 - Sections 91 and 195 - Civil Suit - Suit for declaration and permanent injunction - Will - Forged and Fabricated document - Execution of - Civil Suit was filed by plaintiff-petitioners for declaration and permanent injunction with averments amongst others that late Shri Damodar Das executed a will in favour of plaintiff-petitioners and some of defendants - Allegation that will filed by petitioners in aforesaid suit is a forged and fabricated document and on basis of this FIR investigation commenced - During course of investigation IO/SHO of case filed application before Court below in which aforesaid suit is presently pending with a prayer to hand over the disputed will to him so that it can be examined by FSL to ascertain whether it is forged and fabricated or not - It was also averred that police has no right to seek possession of the disputed document even for purpose of examination – Held, Court is that a document which has been alleged to be forged and fabricated and which has already been filed in a Civil or Criminal Court and is in the custody of the Court, it can be handed over to investigating agency for purpose of examination by FSL - request is made by investigating officer to a Court for handing over of a document alleged to be forged and fabricated and which is in the possession of the Court for the purpose of its examination by FSL, Court having possession of document can hand over it to the investigating agency for the aforesaid purpose. Apart from it, permission may be sought by Court under Rule 181 from the High Court and if such permission is granted the document can be handed over in compliance of the permission so granted by the High Court - Court below for handing over of the will in dispute to investigating officer and according to the learned counsel for the respondent after getting permission the document has already been examined by FSL, no illegality or impropriety can be said to have been committed by the Court below requiring interference by this Court - writ petition is, hereby, dismissed
Key Points: - The document can be handed over to the investigating agency for examination by FSL when it is alleged to be forged and already filed in Court and in custody of the Court; such possession may be transferred with court permission under Rule 181 from the High Court. (!) (!) (!) - Section 91 Cr.P.C. does not empower police to issue orders to Court, but a Court may be requested by an IO to hand over a document in its possession for investigation purposes, and the Court may grant permission under Rule 181. (!) (!) (!) - The petitioner’s rights under Article 20(3) do not bar the handing over of a forged document already produced in Court to the police for investigation; after production, the document is in custody of the Court and the accused loses possession/control. (!) - The Supreme Court in Iqbal Singh Marwah v. Meenakshi Marwah holds that Section 195(1)(b)(ii) Cr.P.C. applies only to documents produced in evidence after custody in court, and not to documents forged before being produced; police can investigate genuineness in such cases. (!) (!) - The High Court’s earlier position that Section 91 Cr.P.C. cannot be invoked to hand over documents to police is overruled to the extent that a court may permit handover on proper requisition and procedure. (!) (!) - The petition is dismissed; permission having been sought and the will examined by FSL, no illegality is found in the trial court’s action. (!) (!)
The plaintiff-petitioners have filed this Civil Writ Petition under Article 226 read with Article 227 of the Constitution of India against the order dated 12.02.2015 passed by the Additional District Judge, Dausa in Civil Suit No.57/2013 whereby the learned trial Court disposed of the application filed by the IO/SHO Police Station Sadar, Dausa with an observation that permission may be sought from Hon'ble Rajasthan High Court whether the original Will dated 12.09.2013 is to be handed over or not to IO/SHO for its examination by FSL.
Brief relevant facts for the disposal of this petition are that Civil Suit No.57/2013 was filed by the plaintiff-petitioners before District Judge, Dausa on 17.10.2013 for declaration and permanent injunction with averments amongst others that late Shri Damodar Das executed a will dated 12.09.2013 in favour of plaintiff-petitioners and some of the defendants. The original will was filed by them in the Court. Some of the respondent-defendants filed written statement and counter claim and alleged interalia that will dated 12.09.2013 is forged and fabricated and it does not bear signature of late Shri Damodar Das. FIR No.144/2014 for offences under Sections 420, 467, 468, 471 read with Section 120-B IPC came to be registered on 26.3.2014 at Police Station Sadar, Dausa against petitioners at the instance of respondent-defendant-Shri Manoj Kumar with the allegation that will dated 12.09.2013 filed by the petitioners in the aforesaid suit is a forged and fabricated document and on the basis of this FIR investigation commenced. During the course of investigation IO/SHO of the case filed application before the Court below in which the aforesaid suit is presently pending with a prayer to hand over the disputed will to him so that it can be examined by FSL to ascertain whether it is forged and fabricated or not. The petitioners filed reply to the application and prayer made by the IO was opposed by saying that police has no right to investigate the genuineness of the will as it is now subject matter of a civil suit and issue of its genuineness can be decided by the Civil Court in which the suit is pending. It was also averred that police has no right to seek possession of the disputed document even for the purpose of examination by FSL. Learned trial Court after hearing both the parties disposed of the aforesaid application with the observation that permission may be sought from High Court whether the will is to be handed over to IO for examination by FSL or not. Learned trial Court for its observation relied upon Rule 181 of General Rules (Civil), 1986.
Assailing the impugned order, learned counsel for the petitioners submitted that infact the IO/SHO filed the aforesaid application under Section 91 Cr.P.C. which empowers him to issue a written order a person to produce a document before him for the purpose of investigation etc. but no such direction under Section 91 Cr.P.C. can be given by IO/SHO to a Court to hand over a document in its possession by the simple reason that the term "person" used in this provision does not include a Court and otherwise also IO/SHO has no power/jurisdiction to direct a Court to produce such a document before him even for the purpose of investigation including examination of it by FSL but learned trial Court without considering the provisions of Section 91 Cr.P.C. has ordered that permission may be sought from High Court for handing over the will in dispute to IO for its examination by FSL. It was further submitted that when the will in dispute is subject matter of aforesaid civil suit, the issue of its genuineness can be determined by the Civil Court in which the suit is pending and for that reason also the will cannot be handed over to investigating agency for FSL examination. It was also submitted that when the will in dispute is now part of Court's record, as per Section 195 Cr.P.C., cognizance can be taken for offence of forgery only on the basis of a complaint made
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