KARTAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS application u/s 482 Cr. P. C. has been filed by Kartar Singh with the request that the order of the learned Munsif & Judl. Magistrate, Padampur, dated 31 3. 83 may be set aside and the proceedings pending before him may be quashed.

(2.) THE facts giving rise to this application briefly stated are that the non-petitioner no. 2 Jugraj Singh filed a complaint against the petitioner Kartar Singh and others for offences u/ss 468, 432, 120b, 199 I. P. C. etc. It was alleged that the complainant and the accused Kartar Singh were brothers. THEy had an elder brother Saudagar Singh. Saudagar Singh used to live with the complainant and before a few days of his death. Kartar Singh had taken away Saudagar Singh to his house on the pretext that he will get him treated However, there he forged a will purporting it to have been executed by Saudagar Singh in favour of the minor sons of Kartar Singh. THE other accused persons and the complainant are said to be parties to the conspiracy to the forgery and some of them were alleged to be the attesting witnesses thereof. It was also alleged that Saudagar Singh did not even go to the office of the Sub-Registrar but the accused had impersonated him. This complaint was sent to the police u/s 156 (3)Cr. P. C. THE police after investigations, filed a final report on 21. 6. 80. THE complainant then filed a protest petition. THE learned Magistrate after hearing the complainant, refused to accept the final report and took cognizance of the offences u/ss 468, 423, 120b against the petitioner Kartar Singh and some other accused persons and for some other offences against some of the other accused persons also. Processes were issued against the accused persons.

(3.) IT is contended by the learned counsel for the petitioner that since before the cognizance of the offence u/s 468 I. P. C. had been taken by the learned Magistrate on 23. 10. 80, the will in dispute had already been produced before the court in the probate proceedings and, therefore, the bar contemplated u/s 195 (1) (b) (ii) would clearly apply to the present case at the aforesaid provision clearly debars the court from taking cognizance in such circumstances. In support of his contention, he has placed reliance upon Ram Pal Singh vs. State at U. P. (1) and Gopalkrishna Menon vs. D. Raja Reddy (2 ). On the other hand, the learned counsel for non-petitioner no. 2, who has contested this application urged that since the offence in question had already been committed before the probate proceedings started and a complaint had also been filed before the probate proceedings started, the prohibition against cognizance contained in s. 195 (1) (b) (ii) Cr. P. C. would not apply and, therefore, the learned Magistrate was perfectly justified in passing the order dated 31. 3. 83. He placed reliance upon Legal Remembrancer, Govt. of W. B. vs. Haridas (3 ). I have given my careful consideration to the rival contentions and in my opinion, the contention put forward by the learned counsel for the petitioner must be accepted. The authority relied upon by the learned counsel for the non-petitioner no. 2 is not applicable inasmuch as it is based on the unamended provisions of s. 195. The present s. 195 (1) (b) (ii) as now stands, is quite different from the provisions considered in that case.