IQBAL SINGH MARWAH Vs. MEENAKSHI MARWAH

JUDGEMENT

(1.) Leave granted in Special Leave Petition (Crl.) No. 4111 of 2000.

(2.) In view of conflict of opinion between two decisions of this Court each rendered by a bench of three learned Judges in Surjit Singh vs. Balbir Singh, (1996) 3 SCC 533 and Sachida Nand Singh vs. State of Bihar, (1998) 2 SCC 493, regarding interpretation of Section 195(1)(b)(ii) of Code of Criminal Procedure 1973 (for short Cr.P.C.), this appeal has been placed before the present Bench.

(3.) The facts of the case may be noticed in brief. The appellant Nos. 1 and 2 are real brothers of Mukhtar Singh Marwah, while respondent Nos. 1 and 2 are his widow and son respectively. Mukhtar Singh Marwah died on 3-6-1993. The appellant No.1 filed Probate Case No. 363 of 1993 in the Court of District Judge, Delhi for being granted probate of the Will allegedly executed by Mukhtar Singh Marwah on 20-1-1993. The petition was contested by the respondents on the ground that the Will was forged. On their application the appellant No.1 filed the original Will in the Court of District Judge on 10-2-1994. Thereafter, the respondents moved an application under Section 340 Cr.P.C. requesting the Court to file a criminal complaint against appellant No.1 as the Will set up by him was forged. A reply to the said application was filed on 27-7-1994 but the application has not been disposed of so far. Thereafter, the respondents filed a criminal complaint in May 1996 in the Court of Chief Metropolitan Magistrate, New Delhi, for prosecution of the appellants and their mother Smt. Trilochan Kaur Marwah under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the ground that the Will of Mukhtar Singh Marwah set up by the appellants is a forged and fictitious document. It is stated in the complaint that though Mukhtar Singh Marwah was an educated person, but the Will bears his thumb impression. He had accounts in Bank of Tokyo and Standard Chartered Bank which he used to operate by putting his signature. Under the Will he had completely divested the respondents, who were his widow and son respectively and also a daughter who was spastic and had bequeathed his entire property to his mother and after her death to his brothers and sisters. The appellant No.1 Iqbal Singh Marwah was appointed as the sole executor and trustee of the Will. Before the learned Metropolitan Magistrate, the complainant examined six witnesses including two persons from the banks who brought the relevant records and deposed that Mukhtar Singh Marwah used to operate the accounts by putting his signature. The learned Metropolitan Magistrate held that as the question whether the Will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the Will had been filed, Sections 195 (1)(b)(i) and (ii) Cr.P.C. operated as a bar for taking cognizance of the offences under Sections 192, 193, 463, 464, 471, 475 and 476 IPC. The complaint was accordingly dismissed by the order dated 2-5-1998. The respondents thereafter filed a criminal revision against the order of the learned Metropolitan Magistrate, before the Sessions Judge, who, relying upon Sachida Nand Singh vs. State of Bihar, (1998) 2 SCC 493, held that the bar contained in Section 195(1)(b)(ii), Cr.P.C. would not apply where forgery of a document was committed before the said document was produced in Court. The revision petition was accordingly allowed and the matter was remanded to the Court of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Additional Sessions Judge by filing a petition under Section 482, Cr.P.C. before Delhi High Court, but the same was dismissed on 15-9-2000 following the law laid down in Sachida Nand Singh. Feeling aggrieved, the appellants have preferred the present appeal in this Court.