- (1.) This Misc. Petition under Section 482 Cr.P.C has been filed against the order dated 7.3.2008 passed by the learned Sessions Judge,Jaipur in Criminal Revision No.2/2008 whereby cognizance taken by the court below against the present petitioner has been confirmed.
(2.) The chequered history of this case is that on 5.9.2003 a complaint was filed by Radhadevi against the present petitioners alleging therein that the present petitioner no.3 Prabhunarain Saini has fabricated a forged will in his favour for the properties which were in share of complainant and on the strength of the will, further sale deed has been executed in 1990 in favour of Ramswaroop-petitioner no.1. With this allegation the complaint was lodged which was sent for the investigation under section 156(3) Cr.P.C.. After investigation, final negative report was filed by the prosecution. The complainant moved a protest petition. Witnesses were examined and during course of proceedings, the matter was again sent for investigation under section 156(3). Impugned order dated 29.7.2004 is abuse of process and whole proceedings should stand vitiated as power under section 156(3) cannot be invoked by the Magistrate, after taking cognizance on the complaint. When the court below has started inquiry under section 202 Cr.P.C it was not within his jurisdiction to send the complaint for investigation under section 156(3)Cr.P.C and reliance has been placed on 2010 (2) Supreme 626, Rameshbhai Pandurao Hedau vs State of Gujrat. Further his contention is that court below has directed investigating officer to investigate on specific points which is not the domain of court below and reliance has been placed on Sagarmal and ors vs State of Rajasthan,2010 1 CrLR 113.
(3.) Per contra, contention of the complainant is that he lodged an FIR stating allegations regarding commission of offence, the investigation has not been rightly done and final report has been filed, on which the protest petition was submitted. During the course of inquiry, the court below has ordered further investigation which was within the domain of the court below. Looking to the provisions of section 202 Cr.P.C which clearly empowers the court below to direct investigation to be made by a police officer and only mentioning of wrong provision would not take away the right of the court below of ordering the further investigation and his further contention is that after the investigation, the positive report has been filed. The alleged registered sale deed has been sent to FSL and report of F.S.L. suggests that the signatures of Jagdeesh Narain on the alleged sale deed are forged one. Jagdeesh Narain was not heard since 1998 and after inquiry a death certificate was issued in 2003 to verify the fact of death of the Jagdeesh Narain. The court below after considering the material on record has taken cognizance against the petitioner on 11.9.2007. The order of cognizance has been assailed in revision and this petition is not maintainable in view of the provisions of section 397 sub clause (3) Cr.P.C and the petition should be dismissed.;