Prashant Kumar Agarwal, J. - (1.) 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.
(2.) 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 inter alia 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 Ss. 420, 467, 468, 471 read with Sec. 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.
(3.) Assailing the impugned order, learned counsel for the petitioners submitted that infact the IO/SHO filed the aforesaid application under Sec. 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 Sec. 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 Sec. 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 Sec. 195 Cr.P.C., cognizance can be taken for offence of forgery only on the basis of a complaint made by the Court and, therefore, police has no jurisdiction to investigate about its genuineness. It was also submitted that even if it is admitted that the will in dispute can be handed over to IO for its examination by FSL even then the correct procedure is that application is to be made to the Criminal Court and if the Criminal Court is satisfied that it is necessary to examine its genuineness then a requisition is to be sent by that Court to the Court in which the document is lying and only on such requisition the document can be handed over to investigating officer for investigation purpose, but in the present case the aforesaid procedure has also not been followed by the learned Court below.;