Delhi District Court
Ravi Mohan Anand vs State on 27 September, 2013
ID No. 02406R0264482012
ID No. 02406R02704012012
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04 &
SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET: NEW DELHI
(I) CR No. 59/2012
ID No. 02406R0264482012
Ravi Mohan Anand
s/o Major (retd.) R. N. Anand
r/o D-11, Vivek Vihar
New Delhi - 110096 ..........Revisionist
Versus
State ..........Respondent no. 1
Bimalendu Ghosh Dastidar
s/o late Amulya Chandra Ghosh Dastidar
r/o W-41, 3rd Floor,
Rear side, Greater Kailash-II, New Delhi ..........Respondent no. 2
AND
(II) CR No. 61/2012
ID No. 02406R02704012012
Dr. Prashant K. Chakraborty
s/o late P. C. Chakraborty
r/o B-234, Chittaranjan Park,
New Delhi - 110019 ..........Revisionist no. 1
Amarnath Ghosh Dastidar
s/o late A. C. Ghosh
r/o G-1224, Chittranjan Park,
New Delhi -110019 ..........Revisionist no. 2
Versus
State ..........Respondent
CR No. 59/2012 - Instituted on : 19th October ,2012
CR No. 61/2012 - Instituted on : 26th October,2012
Both revisions argued on - 20th September,2013
Both revisions decided on - 27th September,2013
1/37
ID No. 02406R0264482012
ID No. 02406R02704012012
ORDER
1. Whether the Will dated 10.05.1996 contains the last desire of the testator-late Sh. Amulya Chandra Ghosh. According to one son, who has set the criminal law into motion in this case, the said Will is forged whereas according to the other son, who is accused in this case and had applied for grant of probate prior to the initiation of criminal proceeding , the said Will is genuine and validly executed.
2. Two separate revision petitions are preferred against orders dated 05.02.2011 and 11.02.2011, passed by Learned Additional Chief Metropolitan Magistrate, South , Saket Court New Delhi whereby charges u/s 420/468/471 r/w 120-B IPC are framed against revisionist in case FIR No. 171/2006 PS Chittranjan Park. Both these revision petitions are being disposed of vide this common order.
3. I have heard submissions advanced by Sh. L. K. Upadhayay, Sh. Vivek Sood and Sh. A. K. Sen , Learned Counsels for revisionists as well as by Sh. Pawan Kumar Mittal and Sh. Amit Saxena , Learned Counsels for the respondents and Sh. Wasi-ur-Rahman, Learned Addl. PP for State and have perused the record.
Facts
4. In brief, facts leading to the filing of these revision petitions are that late Sh. Amulya Chandra Ghosh, father of complainant-Sh. Bimalendu Ghosh as well as Sh. Amarnath Ghosh (A-1) (one of the revisionist herein) was the owner of the property bearing No. G-1224, CR Park, New Delhi. Case of the complainant is that during his lifetime, their father bequeathed the aforesaid property by virtue of a Will dated 07.08.1986 and a codicil dated 31.12.1989, in 2/37 ID No. 02406R0264482012 ID No. 02406R02704012012 equal proportion in favour of his wife Smt. Usha Ghosh and complainant-Sh. Bimalendu Ghsoh Dastidar. Testator Late Sh. Amulya Chandra Ghosh expired on 16.12.1996 and his wife Smt. Usha Ghosh expired on 27.05.1998. Smt. Usha Ghosh also left behind her last Will dated 12.01.1998. On the other hand, case of the revisionist-Amarnath Ghsoh Dastidar is that late Sh. Amulya Chandra Ghosh executed his last Will in his favour on 10.05.1996 in the presence of the attesting witnesses namely Dr. Prashant K. Chakraborty (A-2) and Ravi Mohan Anand (A-3) (both of whom are also revisionists herein). On 27.02.2003, a Probate petition, for grant of Probate of Will dated 10.05.1996, purported to have been executed by Late Sh. Amulya Chandra Ghosh Dastidar was filed in the Court of Learned District Judge, Tis Hazari Court, Delhi which is pending adjudication before the court of Learned ADJ, Delhi. On coming to know about the aforesaid Will dated 10.05.1996, a criminal complaint was filed by the complainant on 24.05.2005, alleging that the said Will was forged, whereupon an FIR NO. 171/2006 , PS C.R. Park u/s 468/471/420/120-B IPC, E.O.W, Crime Branch Delhi was registered at the instance of complainant Sh. Bimalendu Ghosh on 25.04.2006, i.e. after three years of filing of Probate petition by Sh. Amarnath Ghosh Dastidar (A-1). During investigation, police got the alleged Will dated 10.05.1996 examined from G.E.Q.D, Shimla, who after comparing the same with the admitted handwritings of late Sh. Amulya Chandra Ghosh collected by the police, opined that signature thereon, did not match with the admitted signatures of Late Sh. Amulya Chandra Ghosh.
5. On 06.08.2007, on conclusion of investigation, charge-sheet was filed before the court of Metropolitan Magistrate against accused Amarnath Ghosh Dastidar (A-1)brother of complainant and Dr. Prasant Chakroborty (A-2) 3/37 ID No. 02406R0264482012 ID No. 02406R02704012012 as well as Ravi Mohan Anand (A-3). A-2 and A-3 are attesting witnesses to the Will purported to be executed on 10.05.1996, which is alleged to be forged.
6. It may be noted that accused persons filed Crl. M.C No. 3234/07 before High Court of Delhi praying for quashing of the FIR which was dismissed as withdrawn vide orders dated 11.10.2007. An application under Section 309 Cr.P.C for stay of the proceedings till the decision of the Civil court in Probate case filed by revisionists was dismissed by Learned Metropolitan Magistrate vide orders dated 31.08.2009. Revisionists, challenged the said order dated 31.08.2009 vide Crl. M.C No. 3638/2009, which was withdrawn with the permission to file appropriate application before the Sessions Court on 23.10.2009. Thereafter, revisionists filed revision petition against the orders which were disposed off vide order dated 18.02.2010, wherein Learned ASJ held that the "Trial Court shall not pass final orders till the decision of the probate case." Respondent-Amarnath Ghosh (A-1) filed a Crl MC No. 837/2010 challenging order of Ld. ASJ, which was dismissed vide order dated 17.03.2010.
7. On 05.02.2011, Learned Trial Court, after hearing the arguments directed framing of charges and on 18.02.2011, charges Under Section 420/467/468/471 all r/w 120-B IPC were framed. Charges framed against revisionist , in nutshell, are that they entered into a conspiracy of forging the Will dated 10.05.1996 of late Sh. Amulya Chandra Ghosh for the purpose of cheating, his brother-the complainant and in furtherance of which they forged the aforesaid Will and got it registered with sub-registrar VII inducing him to believe the existence of the Will.
8. Revisionist/Dr. Prasant Chakroborty filed a Crl.M.C No. 440/2011 praying for quashing of FIR and charges. Revisionist/Ravi Mohan Anand filed a 4/37 ID No. 02406R0264482012 ID No. 02406R02704012012 Criminal Revision 196/2011 and Amarnath Ghosh also filed a Crl. Rev. No. 228/2011 challenging the order of framing of charges, wherein the Hon'ble High Court on 05.05.2011 was "pleased to stay the proceedings" and all these petitions were disposed of on 08.10.2012, whereby liberty was granted by the High Court to the revisionists to approach Sessions Court. Hence, these two separate revision petitions are preferred by the three accused, before this Court. Submissions
9. Sh. Sood, Ld. Counsel appearing on behalf of Sh. Amarnath Ghosh Dastidar (A-1), submitted that he had filed a Probate Case No. 386/06/03 on 27.02.2003 for obtaining probate of Will dated 10.05.1996 of his late father who expired on 16.12.1996. Probate case was filed about 3 years prior to the registration of the FIR in question. Admittedly, complainant as well as his sisters are objectors and respondents in the aforesaid probate proceedings. It is submitted that in Probate petition, petitioner filed the affidavits by way of evidence of three witnesses and evidence of PWs was recorded in the year 2006-2007. Testimony of PW-6 was recorded on 19.08.2008. It is pointed out that order sheet dated 20.01.2009 in the said probate case shows that the petitioner's witness (handwriting expert) was available on the date but the counsel for the respondents (one of whom is complainant) sought adjournments and subsequent order sheets of 21.04.2009, 12.08.2009 and 04.12.2009 (in the said Probate case) would reveal delaying tactics of the respondents. It is submitted that due to delaying tactics of the respondents in the Probate case, on 04.12.2009, Respondent's Evidence was closed and they were proceeded ex- parte. Subsequently, ex-parte order was recalled. On 15.02.2012, and on 04.07.2012, last and final opportunity was granted to respondents to complete 5/37 ID No. 02406R0264482012 ID No. 02406R02704012012 RE. Again, last and final opportunity for completion of RE was given on 16.11.2012 but, till date, RE has not been deliberately completed by respondents (complainant-herein).
10. Learned counsel urged that delaying tactics of the respondents is apparent from the order sheets of Probate petition. He drew attention of the Court towards portion of said orders. Portion of said orders shown to the Court is reproduced below:-
"PC No. 386/06 Amar Nath Ghosh vs. State 15.02.2012 ......
"Ld. Counsel for respondent no. 2 to 6 prays for grant of adjournment on the ground that the witness RW2 is not in the town. Ld. Counsel for plaintiff opposes the same stating that various opportunities have been taken by the witness on one ground or the other. Be that as it may, in the interest of justice, one and last final opportunity is granted to the respondent to complete his RE on next date, subject to a normal cost of Rs.500/-."
ADJ-06 (Central) Delhi 04.07.2012 (jb)"
04.07.2012 .....
"Put up for RE on 21.09.2012. Last and final opportunity."
ADJ-06 (Central) Delhi 04.07.2012 (jb)"
16.11.2012 .....
"RW2 partly cross-examined and discharged for today. Further cross- examination of RW2 is deferred at the request of the witness on the ground that he has to meet an urgent work at ITO. No further adjournment shall be granted. Last and final opportunity for completion of entire RE on 18.02.2013.
ADJ-06/Central/Delhi 16.11.2012 (pk)"
11. It is urged that impugned order has been passed in complete disregard to the settled law with respect to the maintainability of a criminal case alleging forgery of a Will, while the probate case is pending. It is submitted that 6/37 ID No. 02406R0264482012 ID No. 02406R02704012012 our Hon'ble High Court in "Ravinder Kumar Jain & Ors. Vs. State & Anr. 1held that only a Probate Court is the competent Court to decide about the genuineness of the Will and the judgment of the Probate Court is considered as a judgment in rem. High Court held that Ld. M.M. should have asked the complainant that the MM's Court was not the competent Court to decide upon the genuineness of the Will and summoning order was quashed with the directions that the petitioners / accused shall move the Probate Court with a probate petition regarding the Will. In case the Probate Court holds that the Will was not genuine, the legal remedy would be available to the complainant to proceed against the petitioner.
12. It is submitted that Hon'ble Supreme Court of India in "Sardool Singh & Anr. v. Smt. Nasib Kaur"2 held that where the validity of a Will is in issue in a civil suit, the party alleging that the Will is a forged one, cannot be permitted to institute a criminal prosecution till the pendency of the case before the Civil Court. Ld. Counsel also relied upon Gurmeet Singh Chopra vs Taruna Chopa & ors3; Sunil Gupta vs Kiran Girhotra 4.
13. It is submitted that Hon'ble Supreme Court of India in "Syed Askari Hadi Ali Augustine Imam & Anr. v. State5 an authority which is referred by respondent was called upon to decide whether criminal proceedings deserved to be stayed as the Probate proceedings were also pending. Hon'ble Supreme Court on facts, found that the criminal case had been instituted much prior to the initiation of the probate proceedings and hence the Hon'ble Court permitted the criminal proceedings to continue inspite of the pendency of the probate 1 (Crl. M.C. No. 620/2009)" decided on 10.09.2010 2 1987 (Supp) SCC 146 3 169 (2010) DLT 688 4 157 (2009) DLT 705 5 2009 (3) JCC 1705 7/37 ID No. 02406R0264482012 ID No. 02406R02704012012 proceedings.
14. It is argued that decision in the aforesaid case by the Hon'ble Supreme Court that the criminal proceedings should continue, was based on the facts that the criminal case was instituted much prior to the initiation of the probate proceedings, the conduct of the appellant/accused and the stage at which the probate proceedings are pending and that aforesaid three factors, which weighed with the Hon'ble Supreme Court in arriving at the decision not to quash or stay the criminal proceedings, when applied to the facts of the present case would lead to a different result. It is argued that the present case is clearly distinguishable on facts with the case before the Supreme Court. It is humbly submitted that in the instant case, due to the factum of probate proceedings having been initiated much prior to the criminal proceedings, the delaying tactics by the complainant/respondents in the probate proceedings and the probate proceedings being in the final stages, the said judgment would apply in favour of the petitioner. Without prejudice to the aforesaid submission that the summoning order itself was bad in law, alternatively, it is submitted that till the pendency of the Probate Case, the Trial Court should not proceed with the trial which deserves to be stayed and postponed.
15. It is contended that prior to filing of the present Criminal Revision Petition, Ravi Mohan Anand, who had preferred Criminal Revision Petition No. 196/2011 & the petitioner herein had preferred Criminal Revision Petition No. 228/2011 before the Hon'ble Delhi High Court against the order on charge. Hon'ble High Court vide a speaking and detailed order dated 05.05.2011 in Crl. Revision Petition No. 196/2011 was 'pleased to stay the Trial Court proceedings' in view of the pendency of the probate petition. It is submitted that the order is 8/37 ID No. 02406R0264482012 ID No. 02406R02704012012 binding upon this Court or at least has substantial persuasive value in the adjudication of the present petition. The relevant extract from the aforesaid order dated as is follows:-
"4. The learned counsel for the petitioner has also placed reliance on the judgment of Apex Court in case titled Sardool Singh & Anr. Vs. Nasib Kaur 1987 (Supp) SCC 46, wherein it has been observed by the Apex Court that when the question of validity of the Will is subjudice criminal prosecution on the allegation of the Will being forged cannot be instituted. Although, the said observations of the Court have been passed in the case where the facts are not given, the same could not be treated as a precedent. Nevertheless, this is a point which in my view merits consideration.
8. In the meantime, the proceedings of the case bearing FIR No. 471/2006 u/s 193/467/468/471 IPC registered by P.S. C. R. Park, which are pending in the Court of Sh. Naveen Arora, learned ACMM, shall remain stayed till the next date."
16. Sh. L. K. Upadhyay, Learned counsel appearing for revisionist/Prashant K. Chakraborty submits that there is no evidence at all against revisionist Prashant K. Chakraborty, who is attesting witness to the Will dated 10.05.1996 in question. Attesting witnesses have been charge sheeted simple because they have not supported the investigation. It is submitted that Will can be proved by the attesting witnesses and here is a case, where attesting witnesses have been made accused simply because they have not supported the investigating agencies as noted in the charge sheet and on the basis of a FSL report, which is only an opinion , cannot take place of the testimony of attesting witnesses . In any case, there are Experts' reports, to the contrary including report of Sh. Nehra, a renowned FSL expert which supports 9/37 ID No. 02406R0264482012 ID No. 02406R02704012012 the case of revisionists apart from report of Sh. B. N. Srivastava. Attention of the Court is also drawn towards statements of witnesses (five sisters of complainant) recorded u/s 161 Cr. P.C which are verbatim the same, which seem to have been cut, copied and pasted and mere glance of statements of witnesses would show the tainted manner in which their statements are recorded and the case has been unfairly investigated. It is submitted that in the report prepared by Sh. T. R. Nehra, Forensic (document) consultant, who worked as a head of the questioned document, a Division of CFSL was filed in the Probate petition, after comparing with the admitted signatures of the Testator, wherein it has been opined that question signatures appearing on the Will dated 10.05.1996, were of late Sh. Amulya Chandra Ghosh. It is submitted that the report of this expert as well as one more expert Mr. Sriwastav filed in the protest petition shows that the will is genuine and furthermore the expert's opinion cannot take the place of substantive evidence of attesting witnesses, as required u/s 68 of Evidence Act.
17. Sh. A. K. Sen, Learned counsel for revisionist-Ravi Mohan Anand, who is also an attesting witness to the Will in question purported to be executed by one Shri Amulya Chandra Ghosh on 10.05.1996. It is submitted that this witness of Will, is not a beneficiary in any manner, who had only signed as an attesting witness on the request of the testator and Shri Ravi Mohan Anand has been made an accused in this case, solely on the ground that he did not support the investigation and Investigating Officer has categorically stated this fact in the challan that the witness has not supported the investigation and thus, he was made an accused without any basis.
18. It is submitted that in the pending Probate case, before the 10/37 ID No. 02406R0264482012 ID No. 02406R02704012012 Additional District Judge at Tis Hazari, mediation proceedings were held. Elder brother Bimalendu Ghosh (the complainant herein) tried to pressurize the younger brother to settle according to his terms which was declined and consequently lateron, a police complaint was filed against the younger brother as well as the witnesses to the Will executed by their father on 10.05.1996. It is argued that this aspect has not been considered by the Court below. It is argued that statement of witnesses were recorded under Section 161 Cr.P.C. by the I.O. Section 161(3) requires the I.O. to reduce into writing any statement made to him in the course of an examination. The statement of the sisters of the complainant are alleged to be recorded as provided under Section 161(3). These statements recorded under Section 161(3) Cr.P.C. at a glance would show as to how the investigation was conducted. The statements of each witness reveals that the statements are in verbatim and are only computerized ditto copies of a statement having everything same including comma and full stop, common for all. It is submitted that Learned Trial Court in the impugned order has referred to the Will of the testator dated 07.08.1986 holding that the same was bequeathed in favour of his widow and elder son to the extent of half share each but the Ld. Court below did not consider that the said observation was not correct, because the testator in the same Will bequeathed a substantial portion of the property in favour of his younger son Amarnath Ghosh, accused herein. It further goes to show that the Ld. Court below did not take into consideration, the deed of dedication executed by the testator on 21.12.1993 which is also a part of the record being relied upon by the prosecution.
19. It is argued that it is the cardinal principle of law is that any observation made by the Apex Court of India becomes law of the country and all 11/37 ID No. 02406R0264482012 ID No. 02406R02704012012 Courts below are duty bound to obey the same. Ld. Counsel relied upon in a case reported in "Ishwari Prasad Mishra Vs. Mohd. Isa6"; Shashi Kumar Banerjee & ors. vs Subodh Kumar Banerjee7 ; "Magan Behari Lal vs State of Punjab8;
"Bhagwan Kaur Vs. Maharaj Krishan Sharma & Ors. 9 and "Kamal Narain Ram Saran Lal Vs. Ram Kishore Lal & Anr 10"
20. It is urged that the Learned Trial Court has brushed aside all the above observations and findings of the superior Courts in the impugned order with its own incorrect opinion by observing that "in my opinion expert opinion is the best piece of evidence and can be relied upon if proved on record with reasoning and justification even for the purpose of conviction of an accused persons as in these type of cases the other evidence does not carry much value unless they are coupled with expert opinion."
21. It is urged that above observation of Ld. Magistrate is contrary to the view taken by the Apex Court of the country. Learned counsel wondered that as to which of the opinion among the two, one by the highest Court of India and the other by the Learned Magistrate (Trial Court) is to be considered as law.
22. Per contra, Sh. Mittal, Learned counsel appearing for complainant (respondent herein) submits that all the accused persons since beginning have been trying to scuttle the criminal trial despite the fact that GEQD, Shimla has opined that the will dated 10.05.1996 produced by Amarnath Ghosh and signed by accused Dr.Prasant Chakroborty and Ravi Mohan Anand as witnesses, was not signed by Late Sh. A.C Ghosh. It is submitted that petitioners, while filing the revision petition concealed the factum of earlier orders passed by this Court 6 AIR 1963 SC 1728 7 AIR 1964 SC 529 8 AIR 1979 SC 1091 9 AIR 1973 Page 1346 10 AIR 1958 MP 246 12/37 ID No. 02406R0264482012 ID No. 02406R02704012012 wherein the prayer for quashing of FIR and charge-sheet were declined on the similar grounds as taken in the revision petition.
23. It is argued that one of the major grounds urged for quashing the charges is the pendency of probate petition filed by Amarnath Ghosh which as per the submissions of the accused persons is prior in time, than the criminal proceedings, has been rejected in the petition filed by the accused persons. It is submitted that accused persons are protected, as Learned ASJ has directed the continuation of the proceedings but had stayed the final outcome.
24. It is argued that Hon'ble Supreme Court in catena of judgments including the Constitutional Bench Judgment in "Iqbal Singh Marwah & Anr V/s Meenakshi Marwah & Anr "
11
held that there is no bar if both the criminal proceedings and civil proceedings are continued together. It is submitted that Judgment relied upon by the petitioners in the case of "Ravindra Kumar Jain & Ors V/s State & Anr."12" passed by Hon'ble Justice S.N.Dhingra is per-inquirium and not applicable in the facts of the present case and has been passed ignoring the law laid down by the Hon'ble Supreme Court in "Iqbal Singh Marwah & Anr V/s Meenakshi Marwah & Anr" (supra) and "Syed Askari Hadi Ali Augstine Imam V/s State (Delhi Admin) (supra)".
25. Learned counsel for respondent further submits that Sardool Singh's case (Supra) of the Supreme Court relied upon by the petitioners was not approved by the Hon'ble Apex Court in case of "Syed Askari Hadi Ali Augstine Imam V/s State (Delhi Admin) (supra)" wherein, Supreme Court observed that "no ratio however, can be culled out therefrom. Why such a 11 (2005) 4 SCC 370 12 in Crl. M.C No. 620/2009 13/37 ID No. 02406R0264482012 ID No. 02406R02704012012 direction was issued or such observations were made do not appear from the said decision". Sh. Mittal, learned counsel, contended that the the judgment in case of Sardool Singh (supra) relied upon by the petitioners is passed by a Division Bench and the same is also per-inquirium in view of judgment passed by the Constitution Bench of Apex Court in "Iqbal Singh Marwah & Anr V/s Meenakshi Marwah & Anr" (supra) and Full Bench Judgment of the Apex Court in "Syed Askari HadiAli Augstine Imam V/s State (Delhi Admin)" (supra). It is submitted that law laid down by Hon'ble Supreme Court is binding and judgments relied upon by the revisionists is not good law and not binding on this Court. In support, Learned Counsel relied upon "Sharad Kumar Aggarwal Vs State13"
26. It is submitted that complainant and other witnesses are more than 65 years of age and if the trial is not permitted to proceed with or delayed, valuable evidence might be lost. Learned counsel contended that Apex Court has time and again held that while exercising Revisional Jurisdiction, Courts should not go into intricate details as regards the merits of a matter and can interfere only when there is any illegality or material irregularity or impropriety in the order passed by the Lower Court and a revisional Court cannot act as court of Appeal and re-appraise the merits of the case. Learned counsel for respondent prayed that revision petitions be dismissed and the Learned Trial Court be directed to conclude the trial expeditiously. Nature of evidence
27. At the outset, it is pertinent to note the nature of evidence on record, in this case. Prosecution witnesses listed in this case are mainly five sisters of complainant, namely, Deepti Dutta, Geeta Kuhar Roy, Tripti Saxena, 13 194 (2012) DLT 489 14/37 ID No. 02406R0264482012 ID No. 02406R02704012012 Sweta Ray, Rita Atorthy. On perusal of their statements u/s 161 Cr. P. C, this Court is in agreement with the submissions advanced by learned Counsel for revisionists that the statement of these witnesses are verbatim, stereotyped and word by word, almost the same. Statement of Tarun Dutta , stamp vendor is to the effect that he had sold the stamp paper on 01.04.1996 vide sl. no. 017 for the purpose of Will to one Amarnath Ghosh Dastidar i.e. the testator. Apart from this, there is statement of Jaishree- an advocate and the FSL report. Besides this, no other incriminating evidence accused persons was brought to the notice of the Court .
Redrawing of conclusion at different stages
28. Earlier on filing of an application u/s 309 Cr. P.C , the pronouncement of Judgment in this case was stayed and Trial Court is restrained to finally hear and dispose of the case vide order dated 18.02.2010 of Learned ASJ. It may be noted that even the said order observed that "the Judgment in the Probate case would be of binding nature and may have its legal repercussions on criminal case." The said order was maintained by the High Court on 17.03.2010. The reason, why a fresh conclusion is required to be drawn is that the orders dated 18.02.2010 and 17.03.2010 were passed before framing of the charge and now vide order dated 05.02.2011, Trial Court has ordered to frame charges. Now, after sifting and weighing material on record, this Court has to see the legality and propriety of the impugned order. Legal position is well settled that as the matter proceeds to the next stage, all the earlier conclusions stand effaced and are required to be redrawn in accordance with Law ( reliance may be placed on para 41 "Nupur Talwar vs CBI (2013) 1 SCC 465"). Now, the challenge in these petitions is to the framing of charges, therefore, while 15/37 ID No. 02406R0264482012 ID No. 02406R02704012012 exercising revisional jurisdiction, this Court is also called upon to consider the relevance of Judgment in probate case u/s 41 of Indian Evidence Act and its effect and impact on framing of charges against accused and likelihood of embarrassment to them in continuation of trial.
29. After hearing arguments advanced by Learned counsel for the parties, the main point which emerges for determination in these revision petitions, is whether in view of the pending previously filed instituted probate petition by the accused (A-1), trial in this criminal proceeding should be allowed to be continued or be postponed , when the "fact in issue" in both the proceedings is the "genuineness and validity of Will dated 10.05.1996 purported to be executed by the testator-Sh. Amulya chandra Ghosh and accused no. 1."? Legal Position In order to address the issue, relevant legal position may be noted.
30. In "Gurmeet Singh Chopra vs Taruna Chopra & Ors. (supra)" it was held that Probate Court has exclusive jurisdiction to adjudicate upon the genuineness of a Will and even the civil Court has no jurisdiction to go into the said question.
30.1 In "Sunil Gupta v. Kiran Girhotra (supra)", our High Court reiterated that the Probate Court has exclusive jurisdiction to determine the genuineness or otherwise of the Will and hence a suit seeking cancellation and declaration with respect to the Will is required to be stayed till the decision by the Probate Court. 30.2 In Ishwari Prasad Mishra vs Mohd. Isa (supra) Supreme Court opined that, "Evidence given by an expert of hand writing can never be conclusive because it is, after all, an opinion evidence". In Shashi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee (supra)", it was held that, "The 16/37 ID No. 02406R0264482012 ID No. 02406R02704012012 mere opinion of the expert cannot override the positive evidence of the attesting witness". In "Magan Behari Lal Vs. State of Punjab (supra), Supreme Court held that, it is now well settled that expert opinion must always be received with great caution none so with more caution than the opinion of a hand writing expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence being opinion evidence is by its very nature, weak and infirm and cannot of itself form the basis of a conviction. 30.3 In "Bhagwan Kaur Vs. Maharaj Krishan Sharma & Ors.(supra), Honble Apex Court held that "evidence of a hand writing expert unlike that of a finger print expert is generally of the frail character". In "Kamal Narain Ram Saran Lal Vs. Ram Kishore Lal & Anr(supra) ", it was observed that "It is common knowledge that handwriting of persons are never uniform when they are old".
30.4 In "Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao & ors"14 , Hon'ble Supreme Court held that, the burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a wound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. 14 2006 (14) SCALE186 17/37 ID No. 02406R0264482012 ID No. 02406R02704012012 However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator (See Madhukar D. Shende vs Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. vs Jayaraja Shetty and Ors. (2005) 8 SCC 784) . Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
30.5 In "Syed Askari Hadi Ali Augustine Imam & anr. Vs State"
(supra), Supreme Court considered previous judgments operating in the field. In order to delve deep into the issue, it is necessary to extract relevant portion of the judgment, which reads as under:-
9. "Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal Court upon arriving at the satisfaction that there exists a prima facie case.
The question as to whether in the facts and circumstances of the case one or the other proceedings would be be stayed would depend upon several factors including the nature and the stage of the case.
10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding . Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. The law in this behalf has been laid down in a large number of decisions.
In M. S. Sheriff & anr. Vs State of Madras and ors. (AIR 1954 SC 397), a Constitution Bench of this Court was seized of a question as to whether a civil suit or a criminal case should be stayed in the event both are pending; it was opined that the criminal matter 18/37 ID No. 02406R0264482012 ID No. 02406R02704012012 should be given precedence.
In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment.
If primacy is to be given to a criminal proceeding, indisputably , the civil suit must be determined on its own merit, keeping in view the evidence brought before it and not in terms of the evidence brought in the criminal proceeding.
The question came up for consideration in "K. G. Premshanker vs Inspector of Police and anr. ", (2002(3) JCC 1975), wherein this Court inter alia held:"What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 Cr. P. C makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein."
31. Further the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each, the Court has to decide to what extent it is binding or conclusive with regard to the 19/37 ID No. 02406R0264482012 ID No. 02406R02704012012 matters decided therein. Take for illustration, in a case of alleged trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the Court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is whether, judgment, order or decree is relevant, if relevant its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case." ..............................................
11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a Judgment of a criminal Court will certainly not be binding on a civil court. We have noticed herein before that Section 43 of the Evidence Act categorically states that judgments, orders or decrees , other than those mentioned in Sections 40, 41 and 42 are irrelevant , unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.
Another Constitution Bench of this Court had the occasion to consider a similar question in "Iqbal Singh Marwah & Anr. Vs Meenakshi Marwah & anr." 2005 (2) JCC 768 wherein................... .......................................................................................................... Relying inter alia on M. S. Sheriff , it was held:
32. "Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, tis necessary to point that the standard of proof required in the two proceedings are entirely different . Civil cases are decided on the 20/37 ID No. 02406R0264482012 ID No. 02406R02704012012 basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
The question yet again came up consideration in "P. Swaroopa Rani vs M. Hari Narayana @ Hari Babu" , wherein it was categorically held that :
13. "It is however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously.
Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."
12. Mr. Dwivedi, however, would urge that in a case of this nature Section 41 of the Indian Evidence Act, 1872 would be applicable. In support of his aforementioned contention place strong reliance on "Sardool Singh & anr. Vs Smt. Nasib Kaur" (1987) (Supp.) SCC
146), Commissioner of Income tax, Mumbai vs Bhupen Champak Lal Dalal & anr 2001 (1) JCC 328 : [(2001) 3 SCC 459] and and Surinder Kumar & ors. Vs Gian Chand & ors. [AIR1957 SC 875] "Section 41 of Indian Evidence Act reads as under:
41. "Relevancy of certain judgments in probate, etc., jurisdiction- a final judgment, order or decree of a competent court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character , or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such Judgment, order or decree is conclusive proof- 21/37
ID No. 02406R0264482012 ID No. 02406R02704012012 that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued, to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment , order to decree declares that it had been or should be his property."
Section 41 of the Evidence Act would become applicable only when a final judgment is rendered. Rendition of a final judgment which would be binding on the whole world being conclusive in nature shall take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may be produced in another proceeding. It is however, beyond any cavil that a judgment rendered by a Probate Court is a judgment in rem. It is binding on all Courts and authorities. Being a Judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as civil proceedings.
.........................................................
The question came up for consideration again before this Court in "Sardool Singh & Anr. Vs Smt. Nasib Kaur (supra)", wherein it was opined that "A civil suit between the parties is pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellants is that a Will has been executed by the testator. A case for grant of probate is also pending in the Court of Learned District Judge, Rampur. The civil Court is therefore, seized of 22/37 ID No. 02406R0264482012 ID No. 02406R02704012012 the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil Courts. At this juncture the respondent cannot therefore, be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil Court............ This Will not come in the way of instituting appropriate proceedings in future in case the civil Court comes to the conclusion that the Will is forged one."
"No ratio, however, can be culled out therefrom. Why such a direction was issued or such observations were made do not appear from the said decision."
13. Herein, however criminal case had already been instituted. Whether the same would be allowed to be continued or not is the question....................... The Court therein was concerned with a case involving Section 42 of the Evidence Act. The learned counsel may be correct as it was held that Section 41 is an exception to Sections 40,42 and 43 of the Act providing as to which judgment would be conclusive proof of what is stated therein.
.................................................
A Constitution Bench of this Court in Iqbal Singh Marwah & anr. (Supra) also does not appears to have dealt with this aspect of the matter.
The question , however would be as to whether despite the same should we interfere with the impugned judgment. We do not think that we should firstly, because the criminal case was instituted much prior to the initiation of the Probate proceeding 23/37 ID No. 02406R0264482012 ID No. 02406R02704012012 and secondly, because of the conduct of the appellant and the stage in which the probate proceedings are pending.
For the aforementioned purpose, it may not be relevant for us to enter into the disputed question as to whether the Will is surrounded by suspicious circumstances as the same would appropriately call for decision in the testamentary proceeding. Pendency of two proceedings whether civil or criminal , however, by itself would not attract the provisions of Section 41 of the Evidence Act. A judgment has to be pronounced. The genuineness of the Will must be gone into. Law envisages not only genuineness of the Will but also explanation to all the suspicious circumstances surrounding thereto besides proof thereof in terms of Section 63 (c) of the Indian Succession Act and Section 68 of the Evidence Act.
14. The FIR was lodged not only in regard to forgery of the Will but also on the cause of action of a trespass. Appellant admittedly is facing trial under Section 420, 468 and 448 of the IPC. It is, thus, possible that even if the Will is found to be genuine and that no case under Section 468 IPC is found to have been made out, appellant may be convicted for the commission of other offences for which he has been charged against, namely, trespass into the property and cheating. It is found that the appellant is guilt of trespass, he may be asked to handover possession of the premises in question to the complainant".
15. Exercise of such a jurisdiction further more is discretionary. As noticed by several decisions of this Court, including two Constitution Bench decisions, primacy has to be given to a criminal case. The FIR was lodged on 19.09.2002. No only another civil suit is pending , as noticed herein-before , but a lis in relation to mutation is also pending.
Whereas the criminal case is pending before the Delhi court, the testamentary suit has been filed before the Jharkhand High Court. Since 2003 not much progress has been made therein. The Will has 24/37 ID No. 02406R0264482012 ID No. 02406R02704012012 not been sent to the handwriting expert for his opinion, which is essential for determination of the question in regard to the genuineness of the Will. It is alleged that the Will was registered at Hazaribagh after the death of the testarix . For the last seven years in view of the pendency of the matters before the High Courts in different proceedings initiated by the appellant, the criminal case has not proceeded, although as noticed herein-before charge sheet has been filed and cognizance of the offence has been taken.
We, therefore, are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India having regard to the facts and circumstances of the present case."
(emphasis supplied)
31. Therefore, it is obvious that "Syed Askari Hadi Ali Augustine Imam Vs. State (Delhi Admn.) (supra)" relied upon by the respondent, Hon'ble Supreme Court held that in that case, the FIR was lodged not only in regard to forgery of the Will but also on the cause of action of a trespass. It was observed that "appellant admittedly was facing trial not only u/s 420 & 468 but also u/s Section 448 of the IPC. It is, thus, possible that even if the Will was found to be genuine and that no case under Section 468 of the IPC is found to have been made out, appellant may be convicted for commission of other offences for which he was charged against, namely, trespass into the property and cheating. Thus, Syed Askari's case was decided in its peculiar factual matrix. In "Sardool Singh's case (supra)", "a civil suit between the parties was pending wherein the contention of the respondent was that no Will was executed whereas the contention of the appellants is that a Will has been executed by the testator. A case for grant of probate was also pending in the court of District Judge, 25/37 ID No. 02406R0264482012 ID No. 02406R02704012012 Rampur. Civil Court was seized of the question as regards the validity of the Will. In these circumstances, it was noted that juncture, respondent cannot be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. It was observed that it would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court. Criminal proceedings pending in the Court of the Judicial Magistrate. Chandigarh was quashed and it was further observed that this will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one.
32. No doubt, in Sardool Singh's case detailed facts were not given and also previous precedents operating in the field were not referred and analyzed therein but, this Court finds no merits in the contention advanced by Learned counsel for respondent that observations made by Hon'ble Supreme Court in Sardool singh's case were 'per inquirium' or observations made therein were 'over-ruled'. In Syed Askari's case , it was only noted that no ratio can be culled out therefrom. 'Ratio' is a binding principle which emerges from a course of decisions.
33. Now, adverting to the ratio of M. S. Sheriff's case, which has been referred and quoted in Syed Askari's case, K. G. Premshanker's case and in Iqbal Singh Marwah's case, it is necessary to understand the context, in which observations were made. In short, the facts of that case were, that the two persons, namely, Govindan and Damodaran had filed petitions u/s 491 of Code of criminal procedure for release, claiming that they had been illegally detained by the two sub-Inspectors of Police (appellants in the said case) . Each of the sub-Inspector sworn an affidavit in support of his return . In view of conflict 26/37 ID No. 02406R0264482012 ID No. 02406R02704012012 between their two sets of statements, High Court directed District Judge to make an inquiry. District Judge reported that the statement by the two sub-Inspectors were correct but the High Court disagreed and after an elaborate examination of evidence, reached the conclusion that petitioners were telling truth and not the sub-Inspectors. Petitioners applied to High Court u/s 476 Cr P. C. (of the old Code, now Section 340 Cr. P. C) for prosecution of sub-Inspectors for perjury for offence u/s 193 of IPC. Their applications were granted and Deputy Registrar of High Court was directed to make necessary complaints. Sub-Inspectors appealed against the aforesaid order and against the order u/s 476 Cr.P. C. but Supreme Court found no reason for interfering with the High Court's order in directing prosecution of the sub-Inspector u/s 476 Cr. P.C.
34. In the aforesaid, factual scenario, it was observed:
14. "...... It was said that the simultaneous prosecution of these matters will embarrass the accused... but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused . We have therefore to determine which should be stayed."
15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence.
There is some difference of opinion in the High courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, on even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
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16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interest demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.
35. Thus, reading M. S. Sheriff's case would show that the civil suit which was stayed was for 'damages for wrongful confinement' and, it was noted that the simultaneous prosecution of the criminal proceedings i.e.( the proceedings u/s 476 of the Code directed by High Court, out of which the appeal before the Supreme Court arose) and the civil suit for damages will embarrass the accused and that the only relevant consideration, in the said case was the likelihood of embarrassment .
36. Thus, principle which can be culled out from the analysis of existing judgments, is that stay of proceedings or postponement of proceeding, in exercise of jurisdiction under Section 309 Cr.PC, is permissible. There is no such principle that stay of one or other proceeding can never be granted. It 28/37 ID No. 02406R0264482012 ID No. 02406R02704012012 would depend on the facts of each case and on special consideration obtaining in a particular case. No hard and fast rule can be laid down as to which of the proceedings-civil or criminal - must be stayed. It was noted that possibility of conflicting decisions in the civil or criminal courts cannot be considered as a relevant consideration for stay of the proceedings as law envisaged such as eventuality. Likelihood of Embarrassment was considered to be the only relevant consideration and having regard to certain facts, Hon'ble Apex Court found it expedient in M. S. Sheriff's case to stay the civil proceedings. Hon'ble Supreme Court made it clear that this was not a hard and fast rule; special considerations obtaining in any particular case might make some other course more expedient and just.
37. Now, in K. G. Premshanker's case, the appellant had moved the apex Court for quashing of prosecution against them. The factual matrix of this case is noteworthy. One Madhwan, who was arrested in a case u/s 228-A IPC and u/s 7 (1) (d) of protection of Civil Rights Act was taken in a police jeep to the police station and on the way he was assaulted by the policemen. He complained that he was assaulted by the policemen. He was enlarged on bail . He got himself admitted in the hospital and lodged the FIR against sub-Inspector and other policemen of Kannaur . The case registered against Madhwan was quashed by High Court . As no progress was made in the FIR, registered by Madhwan , High court directed DIG of police, Northern range to investigate the police . Thereafter, the Court entrusted the investigation to CBI. Thereafter, final report was filed before CJM, Arnakulum against 12 accused including appellant- K. G. Premshanker for the offences punishable u/s 324/341/357/219 and 166 IPC. Appellant filed an application for dropping of proceedings. High Court found 29/37 ID No. 02406R0264482012 ID No. 02406R02704012012 that it was not a fit case for jurisdiction u/s 482 Cr. P. C. Appellant had raised another contention before High Court that de-facto , complainant Madhwan had filed a suit for damages before the sub-Court Tellicherry against the appellant and other, which was dismissed by Trial Court and against which an appeal was preferred. It was contended that as the suit was dismissed, the decision rendered by the Civil Court will prevail and therefore, criminal prosecution against appellant and others was required to be dropped.
38. Hon'ble Supreme Court considered Sections 40,41,42 and 43 of the Evidence Act,1872 and observed that the decision in M. S. Sherif's case would be binding wherein it has been held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration.
39. It was further observed that in each and every case, the first question which would require consideration is, whether judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case. In K. G. Premshanker, the effect of Sections 40 to 43 of the Evidence Act has been noted that, if the criminal case and and civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of Sections 40 to 43 are satisfied but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is sated therein. It is important to note that in both cases, i.e. M. S. Sherrif's case and in K. G. Premshanker's case, pending civil suits were for damages and Section 41 of Indian Evidence Act was actually not involved therein and the Court was concerned with facts involving Section 42 of Evidence Act. 30/37
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40. Court has to find out 'material facts' of the case in hand as well as 'material facts' of case referred as precedent. It is well settled that a Judgment is binding precedent for what it decides and not what logically follows from it. In "Bhavnagar University vs Palitana Sugar Mill (P) Ltd.15 the following observations were made, " A decision , as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
41. In Syed Askari's case, aforesaid cases were discussed and observations made therein were quoted with approval. It was also noted that "no ratio could be culled out from Sardool Singh's case (wherein, it does appears that Section 41 of Evidence Act came into 'play' as validity of Will was being tested in a pending Probate case), but, it is obvious that Syed Askari's case was decided on the facts .
42. In Ravinder Kumar's Judgment (supra) decided on 10.09.2010, by our High Court, Learned Metropolitan Magistrate had summoned the petitioner u/s 420/463/464/467/468/469/471/474 IPC relying upon a Will dated 28.12.2003 executed by his late father as the last and genuine Will. Complainant alleged that the Will relied upon his late father was a forged document. In this case, Section 41 came into the picture and Hon'ble High Court held that only the Probate Court is the competent Court to decide about the genuineness of the Will and the Judgment of the Probate Court is considered as a Judgment in rem and that is why it is always advisable that if there is dispute about the 15 (2003) 2 SCC 111 31/37 ID No. 02406R0264482012 ID No. 02406R02704012012 genuineness of a Will, the same should be carried to the Probate Court. It was noted that in case, the Probate Court holds that the Will was not genuine , the legal remedy would be available to the respondent to proceed against the petitioner. To my mind, it cannot be observed, as desired by Learned counsel for respondent, that this case is also 'per incuriam' and thus, not binding on this Court.
43. Therefore, the question as to whether in the facts and circumstances of the case, one or the other proceedings would be stayed or postponed would depend upon several factors including the nature and the stage of the case. If criminal and civil case are for the same cause, Judgment, decree or order referred in Section 41 of Indian Evidence Act , which pertains to probate of a Will shall not only be relevant but shall also be conclusive.
44. "Likelihood of embarrassment" to a party is held to be a relevant consideration. The question to be considered is that what is the meaning of term " likelihood of embarrassment" It is therefore necessary to understand the meaning of the term 'embarrassment'. How "embarrassment" can be conceived of in a criminal proceedings. In this context, relevant extracts of Section 309 Cr.PC may be noted:-
45. "Section 309 Power to postpone or adjourn proceedings.
(1) ...........
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, ..............."
46. It is noticeable from a reading of Section 309 Cr.PC, that the discretion to exercise such powers may arise after taking cognizance or on 32/37 ID No. 02406R0264482012 ID No. 02406R02704012012 commencement of trial. A trial commences with the framing or explanation of charges. A comprehensive power and a Judicial discretion has been vested in the Court to postpone and/or adjourn the proceeding in an appropriate case. The question, therefore, is when and why such power has to be exercised. Now, so far as 'embarrassment' is concerned, neither Code of Criminal Procedure lays down specifically as to what 'embarrassment' actually means nor the term has been 'elucidated' in M. S. Sheriff's or subsequent Judgments which have quoted with approval the said 'expression', when Court confronts a situation as in the present case. Court is required to determine whether the continuation of proceedings can be said to be embarrassing and should it be allowed to continue or not. What would be the consequences of continuation of such a proceeding and further, if it allowed to be postponed then for, how long?
47. In order to find an answer as to what could mean 'embarrassing' provisions of Section 41 of Indian Evidence Act are significant, in the context of instant case, as it clearly speaks inter-alia of Probate cases which are judgments in rem and these judgments are conclusive proof of the status or legal character and a 'Will' has an effect of conferring, declaring, accruing or taking away any right to property to any person .
48. If the circumstances, mentioned in section 41, are shown to be relevant in a criminal proceeding, running simultaneously with Probate proceeding, then accused apprehends likelihood of embarrassment and continuation of criminal proceeding may be prejudicial to his interest. The ratio laid down in the case of MS Sheriff (supra), more particularly with reference to facts and circumstances of the case, has to be understood in the context of relevancy of judgments u/s 41 of the Evidence Act. It will cause embarrassment 33/37 ID No. 02406R0264482012 ID No. 02406R02704012012 to the accused persons (revisionists herein), if they are forced to face a trial in a criminal proceeding on the same 'facts in issue' prior to the decision of previously instituted petition pending before the Probate Court, particularly, when attesting witnesses themselves are made accused. In the present criminal case 'fact in issue' is validity and genuineness of the Will dated 10.05.1996 and the material point for determination is "whether this Will is forged or genuine" and exactly similar question is involved to be determined, in the Probate petition. Thus, as noted above, finding of Probate Court will be binding on the Criminal Court and in the instant case, special considerations are that criminal case is only at its initial stages, whereas Probate proceeding is at an advanced stage, therefore, it is a fit case for the postponement of the present criminal proceedings, till the decision in the Probate proceedings.
49. The postponement of the case shall be co-terminus with the end of pending Probate proceedings before the Probate Court. In case, decision in the Probate petition is such that the Will in question is found to be genuine and stands proved then, the status so declared will not only be relevant but Will have a direct bearing on the allegations of forgery of Will in this criminal case, at the stage of 'charge'.
Conclusions
50. To conclude, legal and factual position which emerges from the aforesaid analysis is as under:
(i) In a given case, civil proceedings and criminal proceedings can proceed simultaneously and one of the proceedings can be stayed or postponed u/s 309 Cr P. C. Whether civil proceedings or criminal proceedings shall be stayed depends on the facts and circumstances of each case. 34/37
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(ii) There is no hard and fast rule. Course, which is expedient and just depends upon special consideration obtaining in a case and in each and every case, the question for consideration is whether Judgment or order of the other proceeding is relevant and if relevant, then its effect.
(iii)Judgment in Probate petition is Judgment in rem and is relevant u/s 41 Indian Evidence Act. grant of Probate is a Judgment in rem and conclusive and binds not only parties but the entire world and Probate Court alone has the jurisdiction to adjudicate upon proof or validity of a Will propounded by the executrix .
(iv) Askari Hadi Ali's case relied upon by respondent is distinguishable as in the said case criminal case was instituted prior to Probate petition and there not only conduct of petitioner and stage of proceedings were considered but also the fact that apart from forgery, allegations of trespass were existing, whereas in the instant case only the validity and genuineness of Will is in question in both the cases.
(v) In Iqbal Singh Marwah's case relied upon by respondent, the question which fell for consideration was as to whether a Bar under section 195 (1)
(b) (i) and (ii) operates for taking cognizance, when a complaint is filed alleging that Will filed by accused in a Probate case was forged and it was held that the Bar would not operate, if the Will is forged before its filing in the Court. Hence, the observations in the said case have no bearing on the facts and circumstances of present case. Even, in Askari's case, it was noted that Iqbal Singh Marwah's case does not appear to have dealt with this aspect of the matter i.e. Section 41 of Evidence Act.
(vi) Legal position is well settled that evidence given by expert of handwriting can never be conclusive because it is after all an opinion evidence, which by its very nature is weak & infirm and it is unsafe and cannot of itself form the basis for conviction, therefore, observation made by the Learned Trial Court in the impugned order that "expert opinion is best piece of evidence and can be relied upon even for the purpose of conviction of accused or in these type of cases, other evidence does not carry much value", are erroneous.
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(vii)Legal principles in regard to proof of a Will are no longer res-integra. A Will has to be proved having regard to the provisions contained in clause
(c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a Will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator.
(viii) In view of Section 68 of Indian Evidence Act, revisionist-Amarnath Ghosh (A-1) has to be given an opportunity to prove the Will, in the Probate petition by examining attesting witnesses, but in this criminal proceedings, attesting witnesses cannot be examined as prosecution witnesses, being arraigned as accused.
(ix) In the present, case, Probate petition was filed earlier in point of time by revisionist-Amarnath Ghosh (A-1) on 27.02.2003, whereas, criminal proceedings, at the instance of complainant (respondent herein) was registered on 25.04.2006 vide FIR no. 171/2006, at PS C. R. Park , Delhi i.e. after three years of initiation of Probate proceedings and secondly, Probate petition is pending at the fag end i.e. stage of respondents' evidence whereas in criminal proceedings , trial has yet to begin.
(x) Continuation or commencement of trial in this case will greatly prejudice the accused persons herein and there is likelihood of embarrassment to revisionist, as 'facts in issue' before the Probate Court and charges in criminal proceedings are intimately linked and therefore, in the factual setting of the case, till a final decision is given by Probate Court, it will not only be advisable but also necessary in the interest of Justice, not to proceed further with the trial against the revisionists.
51. In the result, this Court is of the considered view that interest of justice requires that commencement of trial in this case should be stayed and postponed till the announcement of Judgment by the Probate Court in the pending previously instituted Probate proceedings. Parties shall place on record 36/37 ID No. 02406R0264482012 ID No. 02406R02704012012 certified copy of judgment within two weeks of passing of the order therein and thereafter, this criminal proceeding arising out of FIR No. 171/2006, PS Chittranjan Park shall be revived and Learned Trial Court shall re-hear the parties afresh on the point of charge, in the light of findings and conclusions arrived at by the Probate Court. Revision petitions are disposed of in aforesaid terms.
52. TCR be sent back alongwith a copy of this order. Revision files be consigned to Record Room.
announced in the
open Court
on 27th September , 2013 (Vinay Kumar Khanna)
Additional Sessions Judge-04 &
Special Judge (NDPS) South East,
Saket Courts/New Delhi
37/37