LexSYED ASKARI HADI ALI AUGUSTINE IMAM & ANR. versus STATE (DELHI ADMN.) & ANR.
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[2009] 3 S.C.R. 1017 < ,..._ SYED ASKARI HADI ALI AUGUSTINE IMAM & ANR. A v. STATE (DELHI ADMN.) & ANR. (Criminal Appeal No. 416 of 2009) MARCH 3, 2009 8 [S.B. SINHA, LOKESHWAR SINGH PANTA AND B. ' SUDERSHAN REDDY, JJJ J Code of Criminal Procedure, 1973: c s. 309 - Prayer for stay of criminal proceedings pending probate case - Criminal case alleging the Will to be forged - HELD: Primacy has to be given to criminal case over civil. case - Orders of courts below declining to stay criminal .... proceedings need no interference, in view of the fact that D criminal case was instituted much prior to initiation of probate proceedings and because of the conduct of the appellant and the stage in which the probate proceedings are pending - Practice and Procedure - Evidence Act, 1872 - s.41 - Constitution of India, 1950 - Article 136. E Evidence Act, 1872: s. 41 - Pendency of probate case - Its effect on criminal case alleging the will to be· forged - Held: Pendency of two proceedings, whether civil o' criminal, by itself would not F attract the provisions of s. 41 - A judgment has to be pronounced - The genuineness of the will must be gone into - s. 41 would become applicable only when a final judgment is rendered - On facts, courts below rightly declined to stay criminal proceedings - Code of Criminal Procedure, 1973 - G s.309. -1 "' The appellant filed an application before the Sub- Registrar, Hazaribagh, Jharkhand for registration of a will 1017 H 1018 SUPREME COURT REPORTS [2009] 3 S.C.R. A dated 3.5.1998 stated to have been executed by one Mst. ~ . 'SA', and applied before the Delhi Development Authority for grant of mutation in respect of a property in Delhi on the basis of the alleged will. Mst. 'SM', the daughter of Mst. 'SA' also made an application to the ODA for grant B of mutation in respect of the Delhi property in her favour. Mst. 'SM' filed a civil suit in Patna questioning the genuineness of the will dated 3.5.1998,and also filed a criminal complaint u/ss 420/468/444/34 IPC in Delhi against the appellant alleging the will dated 3.5.1998 as c a forged one. The appellant filed an application for grant of probate in respect of the will dated 3.5.1998 before the Jharkhand High Court u/s 276 of the Indian Succession Act, 1925. The appellant first filed a writ petition before the belhi High Court seeking to quash the criminal D proceedings and on its dismissal filed an application u/s 309 Cr.P.C. before the Metropolitan Magistrate seeking stay of the proceedings in the criminal case. The said application was dismissed. Appellant's revision petition also having been dismissed by the High Court, he filed E the instant appeal. Meanwhile Mst. 'SM' died after having executed a will in favour of respondent no.2, and the Delhi property was mutated in his name. He was impleaded as respondent no.2 in the appeal. It was contended for the appellant that a judgment F in probate proceedings being a judgment in rem as envisaged u/s 41 of the Evidence Act, the criminal proceedings should have been directed to be stayed. Dismissing the appeal, the Court G HELD: 1.1. Section 41 of the Evidence Act, 1872 would become applicable only when a final judgment is t 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 H rendered in one proceeding subject to the admissibility •, , SYED ASKARI HADI ALI AUGUSTINE IMAM & ANR. v. 1019 STATE (DELHI ADMN.) & ANR. thereof keeping in view s.43 of the Evidence Act may be A 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 8 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 C 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. D 1.2. Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of s.41 o
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