2009 Supreme(SC) 421

2009(4) Supreme 222
SUPREME COURT OF INDIA
S.B. Sinha, B. Sudershan Reddy and Lokeshwar Singh Panta, JJ.
Syed Askari Hadi Ali Augustine Imam & Anr. — Appellants
versus
State (Delhi Admn.) & Anr. — Respondents
Criminal Appeal No. 416 of 2009
[Arising out of Special Leave Petition (Criminal) No. 5791 of 2005]
Decided on : 03-03-2009

IMPORTANT POINT
A civil proceeding as also a criminal proceeding may proceed simultaneously; ordinarily a criminal proceeding having primacy over the civil proceeding in the matter of stay.

Headnote:(a) Judicial Review – A civil proceeding as also a criminal proceeding may proceed simultaneously – However, ordinarily a criminal proceeding will have primacy over the civil proceeding in the matter of stay – In that case, civil suit must be determined on its own merit. (Paras 9 and 10)

        AIR 1954 SC 397; (2002) 8 SCC 87 – Relied upon.

        (1970) 3 SCC 694 – Referred.

        (b) Indian Evidence Act, 1872 – Sections 40-43 – 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. (Para 11)

        (2005) 4 SCC 370; AIR 2008 SC 1884 – Relied upon.

        (c) Indian Evidence Act, 1872 – Section 41 – Section 41 of the Evidence Act would become applicable only when a final judgment is rendered – A judgment rendered by a probate court being a judgment in rem is conclusive in a criminal as well as in a civil proceeding. (Para 12)

        AIR 1957 SC 875 – Relied upon.

        1987 (Supp.) SCC 146; (2001) 3 SCC 459; AIR 1957 SC 875 – Referred.

        (d) Indian Evidence Act, 1872 – Section 41 – 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. (Para 13)

        (e) Indian Evidence Act, 1872 – Section 41 – Pendency of two proceedings whether civil or criminal by itself would not attract the provisions of Section 41 – Instantly criminal case not liable to be interfered with because of its institution prior to the probate proceeding and conduct of the parties. (Para 13)

        (f) Indian Succession Act, 1925 – Section 63(c) and section 68, Indian Evidence Act, 1872 – 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 Succession Act and Section 68 of the Evidence Act. (Para 13)

        2009 (1) SCALE 328 – Relied upon.

       Facts of the case :

        1. One Shamim Amna Imam (testatrix) who was the owner of the properties in question executed a Will in favour of the appellants on 3.5.1998. She expired on 23.5.1998.

        2. Her legal heir was one Smt. Syeda Mehndi Imam, the mother of the testatrix.

        3. On or about 23.1.1999, Syed Askari Hadi Ali Augustine Imam filed an application before the office of the Sub-Registrar for registration of the said Will dated 3.5.1998. He also applied before the Delhi Development Authority (DDA) for grant of mutation in respect of the property situated at A-4, Chirag Co-operative Housing Society Limited known as Chirag Enclave, New Delhi on or about 25.2.1999 in view of the Will dated 3.5.1998.

        4. Syeda also made an application to the DDA on 23.4.1999 for grant of mutation in her favour.

        5. On or about 17.7.2000, the said Authority informed ‘Askari’ that his request for mutation could not be acceded to as (1) the appellant could not produce the original copy of the Will dated 3.5.1998; (2) the property in question was under the possession of Shri M.C. Reddy and Shri M.H. Reddy, and (3) Title Suit (T.S. No. 262 of 1991) filed by testatrix against the appellant was pending in the civil court in Hazaribagh.

        6. Thereafter, appellant approached Permanent Lok Adalat (PLA) of the DDA, which by an award dated 20.2.2001 directed DDA to grant mutation in his favour.

        7. Syeda filed a writ petition for quashing of the said order dated 20.2.2001 of the PLA in pursuance whereof further proceedings before the PLA was directed to be stayed by an order 3.5.2002.

        8. Askari’s Writ Petition and further appeals thereagainst were dismissed.

        9. Syeda filed a civil suit in the court of Subordinate Judge, Patna, questioning the genuineness of the said will based on which the appellants had claimed mutation in respect of the property at Delhi.

        11. Syeda also filed a criminal complaint on or about 19.9.2002 against the appellants alleging that the Will dated 3.5.1998 had been forged by the appellants.

        12. The matter was investigated into and the disputed Will was sent for examination by the experts to the Forensic Science Laboratory and the same was found to be forged.

        13. Appellants were granted anticipatory bail on 16.11.2002.

        14. On or about 30.1.2003, appellants filed an application for grant of probate being Testamentary Case No. 1 of 2003 in respect of the Will dated 3.5.1998 before the Jharkhand High Court.

        15. Syeda on or about 9.9.1999 executed a Will bequeathing her right, title and interest in the property in favour of Mr. Faiz Murtaza Ali. She died on 22.2.2004. After her death Faiz claimed himself to be her legal heir on the strength of the said registered will dated 9.9.1999.

        16. Appellants preferred Writ Petition (Criminal) for quashing of the FIR dated 19.9.2002, which by reason of an order dated 29.7.2004 has been disposed of.

        17. Relying on or on the basis thereof, the appellants filed an application before the learned Metropolitan Magistrate seeking stay of proceedings of the criminal case, which has been dismissed.

        18. Appellants preferred Criminal Revision which has been dismissed by reason of the impugned judgment.

       Finding of the Court :

        It would not be proper to interfere with the criminal case at this stage.

       Result : Appeal dismissed.