Hilla Homi Dadysett alias Hilla H. Dadysett v. Hoshang Jehangir Khan

16) Mr. Madan submits that it is prima facie evident that the Caveator has fabricated the purported Will dated 23rd March 2023 to support his false claim over the estate of the Deceased. Such acts fall squarely within the ambit of section 463, 464 and 467 of the Indian Penal Code, 1860 and render him liable for prosecution and punishment under Sections 465 and 467 of the Indian Penal Code, 1860 (IPC).

17) Mr. Madan further submits that the Caveator has committed an offence under section 471 of the IPC, by fraudulently and dishonestly using a forged Will dated 23rd March 2023, claiming to be genuine, despite knowing it to be forged and fabricated.

18) In these circumstances, it is submitted that, in the interest of Justice, an inquiry should be conducted into the offences committed by the Caveator in relation to the forged Will dated 23rd March 2023, which he produced before this Court through his Caveat and Affidavit in support.

19) Learned Senior Counsel, Mr. Madan, accordingly, prays that this Application be allowed in terms of prayer clause A or B as deemed fit by this court.

20) In further support of his submissions, Mr. Madan places reliance on the Judgment of the Supreme Court in State of Punjab versus Jasbir Singh[1] wherein it was held that, in circumstances such as the present, there is no question of affording an opportunity of hearing to the accused prior to initiation of proceedings.

21) The relevant paragraphs of the judgment are extracted herein below for ready reference: “1. The matter has been placed before a three Judges Bench arising from a reference made vide Order dated

26.02.2020 seeking the following questions to be answered: "(i) Whether Section 340 of the Criminal Procedure Code, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?

(ii) what is the scope and ambit of such preliminary inquiry?"

5. To put the aspect in the right perspective and in sequence, we may note that the first judgment of three Judges Bench was Pritish v. State of Maharashtra¹ which noticed that the purpose of a preliminary inquiry under Section 340(1), Cr.P.C. was not to find whether a person is guilty or not but only to decide whether it was expedient in the interest of justice to inquire into the offence. It was thus observed that the Court is not obliged to make a preliminary inquiry on a complaint but if the Court decides to do so, it should make a final set of the facts which is expedient in the interest of justice that offence should be further probed into.

6. The reference Order is a conflicting view in Sharad Pawar v. Jagmohan Dalmiya to the extent that in para 7 while noticing the submissions of the counsels it was observed that it was necessary to conduct a preliminary inquiry as contemplated under Section 340 Cr.P.C. and "also to afford an opportunity of being heard to the defendants, which was admittedly not done." The latter was stated to be contrary to the view in Pritish's case.

7. The reference Order also simultaneously noted the observations in the Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah which was post the judgment in Pritish's case (supra) but prior to the judgment in Sharad Pawar's case (supra). In this behalf the extracted portion in 23 of the judgment reads as under: “In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1) (b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice.” This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i) (b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint.

8. On having considered the matter, it is our view that the Constitution Bench's view would naturally prevails that makes the legal position quite abundantly clear. Not only that, if we may notice, what is reported in Sharad Pawar's case (supra) is only an Order and not a judgment. An Order is in the given factual scenario. The judgment lays down the principles of law. The scenario is that any Order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent. The observations in the quoted paragraph extracted aforesaid apparently came out of the flow of the Order rather than pronouncing any principles of law and that is why the Bench itself categorized what is observed as an Order i.e., in the given factual scenario.

9. We have little doubt that there is no question of opportunity of hearing in a scenario of this nature and we say nothing else but that a law as enunciated by the Constitution Bench in Iqbal Singh Marwah's case (supra) is in line with what was observed in Pritish case (supra).

10. Interestingly both the judgments in Pritish's case and the Constitution Bench judgment in Iqbal Singh Marwah's case (supra) have not been noted in Order passed in Sharad Pawar's Case (supra). The answer thus to the first question raised would be in the negative.”

22) Mr. Sameer Logade, Advocate for the Respondent, sought time to file an Affidavit in Response to the Interim Application. This request was opposed by the Applicants counsel Mr. Madon. The Court accordingly granted Mr. Logade time to consider the decision in State of Punjab v Jasbir Singh’s (supra) and to place on record any case law that would entitle him either to file a reply or to be heard in the matter.

23) On the next date of hearing, Mr. Logade again insisted on being heard for at least 15 minutes. This was once more opposed by Mr. Madon.

24) Upon a specific query posed by this Court to Mr. Logade, as to whether there existed any judgement entitling him to be heard at this stage, the answer was in the negative. Thereafter, I heard Mr. Madon and perused the record.

25) Prima Facie, this case appears to be a posthumous pursuit of riches unearned and a concerted attempt by unrelated party to usurp the estate. There is merit in Mr. Madon’s submissions. A plain reading of the alleged Will raises serious suspicion. The Caveator is neither an heir nor a relative of the Deceased. The phrases ‘just like my son’ and ‘my nearest person’ appear to have been craftily employed to mislead the reader into believing that the Deceased shared a close relationship with the Caveator.

26) A comparison of the signature on the alleged Will relied upon by the Caveator and the Will and Codicils relied upon by the Applicants shows clear dissimilarity. There is merit in Mr. Madon’s contention that the description of the bungalow in the alleged Will has been lifted from the genuine Will dated 25th December 2015. The typographical errors in the names and addresses also raise suspicion, particularly since the Deceased was a well-read and meticulous person. The conduct of the Caveator - approaching the court after nearly a year – further adds to the suspicion.

27) Another factor warranting doubt is that the Deceased had executed a Will as far back as 18th December 2015, followed by several codicils, the last of which was as recent as 27th February

2023. This supports the genuineness of the 2015 Will. The mention of her nephew, coupled with his Affidavit consenting to grant of probate to the Applicants despite receiving only a monetary bequest, also strengthens the Applicant’s case. The execution of a purported new Will just 24 days after the last codicil is highly suspicious. I find merit in Mr. Madon’s submission that a preliminary inquiry under Section 340(1) CrPC is not to determine guilt, but to decide whether it is expedient in the interest of justice to inquire into the offence.

28) In this regard, the Hon’ble Supreme Court in the case of Himanshu Kumar & Ors. vs. State of Chhattisgarh & Ors.[2] analysis the law under Section 340 of the Cr.P.C., the relevant paragraphs are reproduced as under for ready reference:

85. Section 340 CrPC came up for the consideration before a three-Judge Bench of this Court in Pritish v. State of Maharashtra[Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140]. In Pritish [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140], this Court was called upon to consider, whether it is mandatory on the part of the court to make a preliminary inquiry under Section 340 CrPC before filing a complaint under Section 195 CrPC and further, whether the court is required to afford an opportunity of hearing to the person against whom a complaint is filed before a Magistrate for initiating prosecution proceedings. This Court took the view that an opportunity to the would-be accused before the filing of the complaint was not mandatory and observed that the preliminary inquiry was itself not mandatory. The Court observed thus: (SCC pp. 258- 61, paras 9-14 & 18)

11. Section 238 of the Code says that the Magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the accused. Section 239 enjoins on the Magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial. Until then the inquiry continues before the Magistrate.

12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the Magistrate that the allegations against him are groundless and that he is entitled to be discharged.

13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings. The learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry.

14. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would-be accused. In any event the appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier.

18. We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry (vide M. Muthuswamy v. CBI [M. Muthuswamy v. CBI, 1984 SCC OnLine Mad 158] ).” (emphasis supplied)

86. In M.S. Sheriff v. State of Madras [M.S. Sheriff v. State of Madras, (1954) 1 SCC 524: AIR 1954 SC 397], a Constitution Bench of this Court said that no expression on the guilt or innocence of persons should be made by the court while passing an order under Section 340CrPC. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. This decision of the Constitution Bench has also been followed in Pritish [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140] observing that the court, when decides to make a complaint under Section 340, is not to record finding of guilt or innocence of person against whom complaint is to be made before a Magistrate.

90. Later, the judgment in Pritish [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140] came to be relied upon by a two-Judge Bench of this Court in Amarsang Nathaji [Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113: (2017) 1 SCC (Cri) 237]. While dealing with the propriety of the procedure adopted by the court making a complaint under Section 340CrPC, the Bench in Amarsang Nathaji [Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113: (2017) 1 SCC (Cri) 237] observed as follows: (SCC p. 117, para 7) “7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253:

91. The conflict between the two decisions of this Court of equal strength i.e. Pritish [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140] and Sharad Pawar [Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290: (2013) 1 SCC (Civ) 1188: (2013) 2 SCC (Cri) 197], was taken notice of by this Court in State of Punjab v. Jasbir Singh [State of Punjab v. Jasbir Singh, (2020) 12 SCC 96: (2020) 4 SCC (Cri) 140]. A Bench of two Judges of this Court ultimately thought fit to refer the question to a larger Bench. The Court observed as under: (Jasbir Singh case [State of Punjab v. Jasbir Singh, (2020) 12 SCC 96: (2020) 4 SCC (Cri) 140], SCC p. 104, para 14) “14. In any event, given that the decision of the three- Judge Bench in Sharad Pawar [Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290: (2013) 1 SCC (Civ) 1188: (2013) 2 SCC (Cri) 197] did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140] regarding the necessity of a preliminary inquiry under Section 340 CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah [Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370: 2005 SCC (Cri) 1101], we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions:

14.1. (i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a court?

14.2. (ii) What is the scope and ambit of such preliminary inquiry?”

29) Subsequently, the full bench of Supreme Court in Jasbir Singh (supra) decided the issue that the purpose of a preliminary inquiry under Section 340(1), Cr.P.C. was not to find whether a person is guilty or not but only to decide whether it was expedient in the interest of justice to inquire into the offence.

30) In my view, the purported Will relied upon by the Caveator would certainly impact the administration of justice, cause a substantial injury to the Applicants, and deprive the Charity of a very valuable property. The existence of such a document would compel Courts to require the parties to lead evidence to prove it. The ratio of the Full-Bench decision in Jasbir Singh's (supra) squarely applies to the facts of this case.

31) I find no reason to permit the Respondents either to file a reply to the Interim Application or to address oral arguments in the matter.

32) Interim Application is allowed in terms of prayer clause (b) altered as under: “The Prothonotary and Senior Master through his representative shall lodge an appropriate Complaint before the jurisdictional Magistrate in respect of the offences punishable under Bharatiya Nyaya Sanhita, 2023 or Indian Penal Code, 1860 including under Sections 196, 199, 200, 463 and 471 of the Indian Penal Code, 1860, alleged to have been committed by the Caveator. Such Complaint shall be filed in accordance with Section 340(1)(b) and (c) read with Section 340 (3) (a) of the Code of Criminal Procedure, 1973.”

33) The Prothonotary and Senior Master to report compliance and status of the Complaint every three months to this Court. List matter for compliance on 14th November 2025.

34) All concerned to act on an authenticated copy of this Order. (KAMAL KHATA, J.)