M.N. Shukla, J. - (1.) THIS criminal reference and the connected criminal revisions are directed against an order passed by the Assistant Sessions Judge, Muzaffarnagar, in respect of a preliminary plea taken by the accused that the prosecution commenced against them was barred Under Section 195, Code of Criminal Procedure. The view expressed by the Asstt. Sessions Judge was that it was not desirable to decide the objection as a preliminary point and it was, therefore, proper that this objection should be dealt with after the trial. Aggrieved by that order the accused persons filed two separate revisions. One was filed by Sm. Shanti Devi and Shyam Lal and in the other the Applicants were Sadho Ram and three others. The learned 1st Addl. Sessions Judge, by his order dated 17 -7 -1967, dismissed the revision preferred by Sadho Ram and others and partly dismissed the other revision also in so far as it purported to be on behalf of Shyam Lai. He however, came to the conclusion that the objection of Sra. Shanti Devi regarding the bar of Section 195 Code of Criminal Procedure was valid and hence he made a reference to this Court, recommending that the revision by Sm. Shanti Devi be allowed and the committal order dated 24 -4 -1967 passed by the Asstt. Sessions Judge, in so far as it related to Sm. Shanti Devi be quashed. Sadho Ram and others filed a revision in this Court against the order of the Sessions Judge, dated 17 -7 -1967 and the other revision was preferred by the accused Shyam Lal, son of Phool Chand. It may be mentioned that the said Shyam Lal is the husband of Sm. Shaftti Devi accused, in whose favour the reference has been made by the Sessions Judge.
(2.) THE learned single Judge before whom the two revisions and the connected reference were first listed referred them to a larger Bench, because there was a conflict between the views expressed by two learned single Judges of this Court in the cases of Jiwa Ram and Ors. v. Gangoli : AIR 1949 All. 392 and Har Prasad v. Hans Raj : AIR 1966 All. 124 :, 1965 AWR 82. The material facts of the case are that in July, 1963, Shyam Lal (accused), on behalf of his wife, namely, Sm. Shanti Devi, (accused) applied to the Tahsildar, Kairana, district Muzaffarnagar, for mutation in favour of Sm. Shanti Devi of certain plots in Qasba Jhinjhana, standing in the name of one Sm. Chameli Devi, deceased, on the ground of Sm. Shanti Devi being a legatee of Sm. Chameli Devi under a will. An unregistered will, purporting to be executed by Sm. Chameli Devi, deceased, on 18 -1 -1956 in favour of Smt. Shanti Devi, was actually produced in the mutation proceedings. In those proceedings Shyam Lal made a statement on oath in support of the will. The Tahsildar passed an order of mutation in favour of Sm. Shanti Devi, on 30 -3 -1963. On 31 -12 -1963 the will was got registered. In these circumstances the complainant (who is also named Shyam Lal but is the son of Kishan Lal) filed a complaint purporting to be Under Sections 420, 405 and 467 IPC against ten accused persons including Shyam Lal and his wife Sm. Shanti Devi, alleging that Smt. Chameli Devi had died intestate in 1960 and her property had passed to her legal heirs, including the complainant's father -in -law, Kashi Ram that Jyoti Prasad and Shyam Lal (accused) had been managing the property on behalf of some cosharers and that with the help of other accused embezzled the proceeds thereof by deceiving the owners and had further forged the will on the basis of which mutation was obtained.
(3.) THE Magistrate had originally discharged the accused persons on 31 -8 -1965 but the order of discharge was set aside in revision and therefore, the Magistrate committed the accused for trial to the sessions court charging five of them (namely, Shyam Lal, Smt. Shanti Devi, Telu Ram, Atma Ram and Sadho Ram) Under Section 467 IPC and the remaining five (namely, Jyoti Prasad, Jagdish Prasad, Suraj Prakash, Satya Prakash and Miner Sen) Under Sections 467/109 IPC. Till this stage the accused had not pleaded the bar of Section 195 Code of Criminal Procedure to the prosecution. In the meantime, Jyoti Prasad (accused) died and there were only nine accused left. Before the trial commenced the accused raised the aforesaid plea as a preliminary objection, giving rise to the present reference and the connected revisions.;