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Syed Askari Hadi Ali Augustine Imam&Anr.; Vs. State (Delhi Admn.) & on 3 March, 2009

Syed Askari Hadi Ali Augustine Imam&Anr.; Vs. State (Delhi Admn.) & on 3 March, 2009
Bench: S.B. Sinha, Lokeshwar Singh Panta, B. Sudershan Reddy

HELD: 1.1. Section 41 of the Evidence Act, 1872 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 would take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view s.43 of the Evidence Act may be produced in another proceeding. It is 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 in a civil proceeding. [Para 12] [1034-D-G]

Surinder Kumar & Ors. vs. Gian Chand & Ors. AIR 1957 SC 875; Sardool Singh & Anr. vs. Smt. Nasib Kaur 1987 (Supp.) SCC 146; Mt. Daropti vs. Mt. Santi 1929 Lahore 483 and Darbara Singh vs. Karminder Singh & Ors. AIR 1979 Punjab & Haryana 215 – referred to.

Commissioner of Income Tax, Mumbai vs. Bhupen Champak Lal Dalal & Anr. (2001) 3 SCC 459, cited.

1.2. Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of s.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 s.63(c) of the Indian Succession Act, and s.68 of the Evidence Act. [Para 13] [1038-C-D]

Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria & ors. 2009 (1) SCALE 328, relied on.

1.3. As noticed in several decisions of this Court, including two Constitution Bench decisions*, primacy has to be given to a criminal case over a civil case. 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 evidences brought in it and not in terms of the evidence brought in the criminal proceedings. In the instant case, the FIR was lodged not only in regard to forgery by the Will but also on the cause of action of a trespass. Not only another civil suit is pending, but a lis in relation to mutation is also pending. [Para 10, 14 and 15] [1029-G; 1038-E; 1039-A]

*M.S. Sheriff & anr. vs. State of Madras & Ors. AIR 1954 SC 397 and Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. (2005) 4 SCC 370, relied on.

K.G. Premshanker vs. Inspector of Police and Anr. (2002) 8 SCC 87 M/s Karam Chand Ganga Prasad & anr. etc. vs. Union of India & Ors. (1970) 3 SCC 694 and P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu AIR 2008 SC 1884, referred to.

1.4. 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 not been sent to the handwriting expert for his opinion, which is essential for determination of the question in regard to its genuineness. It is alleged that the Will was registered at Hazaribagh after the death of the testatrix. 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 charge-sheet has been filed and cognizance of the offence has been taken. Exercise of such a jurisdiction furthermore is discretionary. [Para 15] [1039-A-C]

1.5. In the facts and circumstance of the case, orders of the Metropolitan Magistrate and the High Court need not be interfered with. Firstly, because the criminal case was instituted much prior to the initiation of the probate proceeding and, secondly, because of the conduct of the appellant and the stage in which the probate proceedings are pending. Therefore, it is not a fit case where the Court should exercise discretionary jurisdiction under Article 136 of the Constitution of India. [Para 15] [1039-D]

Case Law Reference:

AIR 1954 SC 397 relied on para 10

(2002) 8 SCC 87 referred to para 10

(1970) 3 SCC 694 referred to para 10

(2005) 4 SCC 370 relied on para 11

AIR 2008 SC 1884 referred to para 11

1987 (Supp.) SCC 146 referred to para 12

(2001) 3 SCC 459 cited para 12

AIR 1957 SC 875 referred to para 12

1929 Lahore 483 referred to para 13

AIR 1979 Punjab & Haryana 215 referred to para 13 2009 (1) SCALE 328 relied on para 13

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 416 of 2009.

From the Judgment and Order dated 23.07.2008 of the High Court of Delhi in Criminal Revision No. 184 of 2005.

Dinesh Dwivedi, S.K. Sinha, Manish Shanker and Prateek Dwivedi for the Appellant.

A. Sharan, ASG, A.M. Singhvi, S.C. Maheshwari, Neera Gupta, Sadhna Sandhu, Anil Katiyar, Sandhya Goswami, H.C. Kharbanda and M.P.S. Tomar for the Respondent.

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