ADVOCATE'S CHECK LIST(TO BE CERTIFIED BY

ADVOCATE-ON-RECORD)

SI.No Particulars YES/NA

1. SLP(C) has been filed in Form No.28 with Yes
Certificate
2. The Petition is as per the provisions of Order Yes
XV Rule 1
3. The papers of SLP have been arranged as per | yes
Order XXI Rule (3)(1)(
4. Brief list of dates and events has been filed YES
5. Paragraphs and pages of paper books have YES
been numbered consecutively and correctly
noted in Index.
6. Proper and required number of paper books YES
(1+1) have been filed.
/. The contents of the petition, applications and YES
accompanying documents are clear, legible
and typed in double space on one side of the
paper.
8. The particulars of the impugned judgment
passed by the court(s) below are uniformlyES
written in all the documents.
9. In of appeal by certificate the appeal is
case NA
accompanied by judgment and decree
appealed from and order granting certificate.
10. If the petition is time barred, application for | NA
condonation of
delay mentioning the no. of |
days of delay, with affidavit and court fee has
been filed.
11. The Annexures referred to in the petition are | YES
true copies of the documents before the
court(s) below and are filed in chronological
order as per List of Dates.
12. The annexures referred to in the Petition are YES
filed and indexed separately and not marked
collectively.
 13.| The relevant provisions o f the Constitution, | NA
statutes, ordinance, rulés, regulations, bye
laws, orders ete. referTed to in the inpugned
judgment/orde; has been filed as Appendix to
SLP.
14.| In SLP against the order passed in Second NA
Appeal, copies o f the orders p a s s e d b y the
Trial Court and First Appellate Court have
been filed._
5 . The complete listing proforma has been filled YES
in, signed and included in the paper books.
16. In a petition (PILL) filed under clause (d) o f |NA
Rule 12(1) Order XXVIII,. the Petitioner
has disclosed:
(a) His full name, complete postal
address, e-maill address, phone
number, proof regarding personal
identification, occupation and annual
income, PAN numbe and National
Unique Identity Card number, if any
(b) The facts constituting the cause
of action;
(c)The nature o f injury caused or likely to
be caused to the public;
The nature arid extent of
ersonal interest, if any, of the
petitioner(s);
Ce) Details regarding any civil,
criminal or reveue litigation,
involving the petitioner or any o f the
Petitioners, which has or could have a
legal nexus with the issue(s) involved
in the Public Interest Litigation.
NA
17.Ifany identical matter is pending/disposed of
by the Hon. Supreme Court, the complete
particulars of such matters have been givenn.

18. Thestatement in terms ofthe Order XIX Rule YES

3(1) of Suprene Court Rules 2013 has been
given in the Petition ofappeal.
19. Whether Bank Draft of Rs. 50,000/-
a 50%6 or NA
of the amount, whichever is less, has been
deposited by the person intending to aPpeal,
i f required to be paid as p e r the order o f the
NCDRC, in terms of Section 23 of the
Consumer Protection Act, 1986.
20. In case of appeals under Armed Forces NA
Tribunal Act, 2007. The Petitioner/Appellant
has moved before the Armed Forces Tribunal
for granting certificate for leave to appeal to
the Supreme Court.
YES
21. All the paper books to be filed after curing the|
defects shall be in order.

I hereby declare that I have personally verified the petition and its
contents and it is in conformityy with the Supreme Court Rules
2013. I certify that the above requirements o f this Check List have
been complied with, I further certify that all the documents
necessary for the purpos of hearing of the matter have been filed.

Signature--
AOR'S Name:

pate:
 IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
ORDER XXII RULE 2 (1)
(Under Article 136 of Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO OF 2024
(Arising out of Impugned Judgment & Final Order
dated 05.12.2023 passed by the Hon’ble High Court of
Delhi at New Delhi in Crl. Misc. 1303/2024 & Crl. M.A.
4416/2014)

(With Prayer for Interim Relief)

Amarnath Ghosh Dastidar ...Petitioner

Versus

Bimalendu Ghosh Dastidar & Ors Respondents

WITH

Crl. MP. No. ___ of 2024: An application seeking

exemption from filing certified copy of the Order

Crl. MP. No. ___ of 2024: An application seeking

condonation of delay in filing the present SLP.

PAPER BOOK
(FOR INDEX PLEASE SEE
INSIDE)

ADVOCATE FOR THE PETITIONERS: ADEEL AHMED

 INDEX

SL. Particulars of Page No. of part to Remark

document which it belongs s

Part I Part II
(Content (Content
s of s
Paper of file
Book) alone)
(i) (ii) (iii) (iv) (v)
Court Fees
1 O/R on Limitation A
2. Listing Proforma A1-A2 A1-A2
3. Cover Page of Paper A2
Book
4. Index of Record of A3
Proceedings
5. Defect List A4
6. Note Sheet NS1 to
7. Synopsis and List of B-G H-V
Dates
8. Arising out of 1-
Impugned Judgment 26
& Final Order dated
05.12.2023 passed by
the Hon’ble High Court
of Delhi at New Delhi
in Crl. Misc.
1303/2024 & Crl. M.A.
4416/2014
9. Special Leave Petition
with affidavit 27-41
10 Annexure-P/1 True
copy of the “Deed of 42-43
Dedication” dated
07.08.1987 which was
notarized and
 executed by the
testator on
21.12.1993 in the
presence of his two
daughters
11 Annexure-P/2
True copy of the Will 44-47
dated 10.05.1996
12 Annexure-P/3
True copy of the 48-52
Probate Petition No.
90 of 2003
13 Annexure-P/4
True copy of the FIR 53-61
No. 171/2006
15 Annexure-P/5
True copy of the
62-81
Chargesheet dated
06.08.2007
16 Annexure-P/6
True copy of the
opinion of handwriting 82-108
expert dated
01.12.2007
17 Annexure-P/7
True copy of the
opinion of handwriting 109–110
expert dated
01.07.2008
18 Annexure-P/8
True copy of the order 111-116
dated 18.02.2010
passed by the
19 Annexure-P/9
True copy of the order 117-118
dated 11.02.2011
passed by the

20 Annexure-P/10
True copy of the order
119-164
dated 27.09.2013
passed by the
21 Annexure-P/11
The Respondent No. 1
filed Crl. MC 1303 of 165-206
2014 dated
26.02.2014

22 Annexure-P/12
True copy of the Order
sheet of the mediation 207
center dated
24.09.2019 of the
Hon’ble High Court
23 Application for
Exemption from filing
certified copy in the 208-210
impugned order
24 Application for C/delay
211-213
in filing SLP
16 F/M
17 V/A
 RECORD OF PROCEEDINGS

S.N DESCRIPTION PAGES

. OF
DOCUMENTS
 “A”
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL) NO. OF 2024

IN THE MATTER OF:

Amarnath Ghosh Dastidar ...Petitioner

Versus

Bimalendu Ghosh Dastidar & Ors Respondents

OFFICE REPORT ON LIMITATION

1. The Petition is/are within time.

2. The Petition is barred by time and there is delay of days in
filing the same against Order dated 05.12.2023 and petition for
condonation of delay has been filed.
3. There is delay of … days in re-filing the petition and Petition
for condonation of … … days delay in re-filing has been filed.

BRANCH OFFICER

NEW DELHI
DATED : 10/07/2024
 A-1
LISTING PROFORMA
SECTION: II

The case pertains to (Please tick/check the correct box):

□ Central Act: (Title) NA

□ Section : NA

□ Central Rule : (Title) NA

□ Rule No(s): NA

□ State Act: (Title) NA

□ Section: NA

□ State Rule : (Title) NA

□ Rule No(s): NA
□ Impugned Interim Order : (Date) NA
□ Impugned Final Order/Decree : 05.12.2023
□ High Court: (Name): The Hon’ble High Court of Delhi
at New Delhi
□ Names of Judges: Hon’ble Mr. Justice Amit Sharma
□ Tribunal/Authority ; (Name) NA
1. Nature of matter : □ Criminal
2. (a)Petitioner/appellant No : Amarnath Ghosh Dastidar
(b) e-mail ID: NA
(c) Mobile phone number: NA
3. (a) Respondent No. 1: Bimalendu Ghosh Dastidar & Ors.
(b) e-mail ID: NA

(c) Mobile phone number: NA

 A-2
4. (a) Main category classification: 18

(b) Sub classification: 1807

5. Not to be listed before: NA

6. (a) Similar disposed of matter with citation, if any, &

case details:
No similar disposed of matter. NA
(b) Similar pending matter with case details: No similar
matter pending
7. CRIMINAL. Matters: YES
(a) Whether accused/convict has surrendered: □ NA □ No
(b) FIR No. FIR No. 171/2006 Date: 25.05.2006
(c) Police Station:Chittaranjan Park
(d) Sentence Awarded: No
(e) Sentence Undergone: No
8. Land Acquisition Matters: NA
(a) Date of Section 4 notification: NA
(b) Date of Section 6 notification: NA
(c) Date of Section 17 notification: NA
9. Tax Matters: State the tax effect: NA
10. Special Category (first petitioner/appellant only): NA
□ Senior citizen > 65 years □SC/ST □Woman/child □
Disabled □ Legal Aid case □ In custody:
11. Vehicle Number (in case of Motor
Accident Claim matters): NA

Date:
10/07/2024

Advocate-On-Record for Petitioner(s)/Appellant/Respondent(s)

(Name): ADEEL AHMED; Registration No.2734
14, Lawyers Chamber, Supreme Court of
India, New Delhi -110001
Mob- 8585908959; e-mail :adeelbox@gmail.com
 B
SYNOPSIS & LIST OF DATES

The present Special Leave Petition is being preferred against

Judgment & Final Order dated 05.12.2023 passed by the Hon’ble

High Court of Delhi at New Delhi in Crl. Misc. 1303/2024 & Crl. M.A.

4416/2014 (hereinafter referred to as “the impugned judgment and

final order”). That vide the impugned judgment the Hon’ble High

Court has erroneously reviewed the order of his predecessor judge

who had directed the Petitioner to approach the Sessions Court

vide an order dated 08.10.2012. The said order dated 08.10.2012

was passed in a petition challenging the order passed by the Trial

Court dismissing the application of the Petitioner u/S 309 CrPC and

thereafter a detailed and reasoned order was passed by the Ld.

Sessions Court which upheld the settled law by stating that the

criminal proceedings be stayed and after the findings of the

Probate Court the parties were to argue again on the point of

Charge in the criminal proceedings.

That the Petitioner and the Respondent No. 1 are both senior

citizens of 67 and 78 years respectively as on date and are real

brothers and are in litigation in respect of a Will dated 10.05.1996

which was as per the Petitioner, was executed by their father Late
 C

Sh. Amulya Chandra Ghosh @ A.C. Ghosh whereby the father had

bequeathed the property bearing No. G-1224, Chittaranjan Park,

New Delhi in favour of the Petitioner, herein after mentioned as

“Said Property”.

That Late Sh. Amulya Chandra Ghosh @ A.C. Ghosh i.e.

father of the Petitioner and Respondent No. 1 herein was allotted

a lease hold property, namely the “Said Property”. That the “Said

Property” consisted of the ground floor (three roomed house) only.

That Late Sh. Amulya Chandra Ghosh entered into a “Deed of

Dedication” whereby he permitted as the absolute owner of the

“Said Property” the Petitioner herein to raise the first floor on the

said house complete with separate water and electricity

connections and tax assessments as the owner of the first floor.

That Late Sh. Amulya Chandra Ghosh executed a Will dated

10.05.1996. That the said Will was witnessed by two independent

witnesses one being his doctor over the years and the other his

family friend, namely Dr. Prashanta K. Chakraborty and Mr. Ravi

Mohan Anand (Proforma respondents No. 2 and No. 3

respectively). That Late Sh. Amulya Chandra Ghosh @ A.C. Ghosh

(father of the Petitioner and Respondent No. 1) expired on

 D

16.12.1996 and Smt. Usha Ghosh (mother of the Petitioner and

Respondent No. 1) expired on 27.05.1998.

That the Petitioner, Amarnath Ghosh Dastidar, with an

intention to follow his father’s Will subsequent to the death of both

his parents, sent a copy of the Will dated 1996 under UPC to his

brother and sisters and also informed them over phone about this

Will left behind by the father. Unable to receive an appropriate

response or NOC, the Petitioner went for registration of the Will

with the intention to get the “Said Property” mutated in his favour

and thereafter on 27.02.2003 had filed Probate Petition No. 90 of

2003 (currently 386/2006) titled “Amarnath Ghosh Dastidar Vs

State & Ors”, for grant of probate of Will dated 10.05.1996

executed by Late Sh. A.C. Ghosh in Tis Hazari Court, Delhi, which

is pending adjudication. The probate case is at the stage of

Respondent evidence which they have been evading on one pretext

or the other since 2009 when PE was closed.

The Respondent No. 1 after being served with notice of the

Probate case 90 of 2003 filed some counter probate petition therein

bearing No. 254/2005 and 253/2005 of a purported Will dated

07.08.1986, which was allegedly amended on 31.12.1989 which

also had Will of the now deceased mother of Petitioner and

 E
Respondent No. 1 which she had executed on 12.01.1998 whereby

she had bequeathed her one-half share in the property to the

Respondent No. 1. However, as per the Will of the late father of

the Petitioner and Respondent No. 1, he being the sole owner of

the “Said Property” the mother only had right to residence and not

any ownership rights. That at the time of the Respondent No. 1

filing his probate case as a counter to the probate case of the

Petitioner bearing No. 90 of 2003, he had taken a plea of the same

being false and fabricated.

That later on as an afterthought, the Respondent No. 1

herein filed a complaint to the EOW cell of Delhi Police who despite

knowing that the matter is subjudice in the Probate Court, carried

out a parallel investigation overriding the jurisdiction of the Probate

court. An FIR bearing No. 171 of 2006, P.S. CR Park, under section

468, 471, 420, 120B of IPC 1886 was registered on 25.05.2006

against the Petitioner and the attesting witnesses of the subject

Will, a lapse of three years of having gone in for Probate.

That since the Probate Petitions were being adjudicated,

Petitioner and Respondent No 2 and 3. filed an application u/s 309

Cr.P.C. on 24.02.2009 for stay on the proceedings of the Criminal

 F
Matter till the final disposal of the Probate Petitions before the Ld.

ACMM (South-East), Saket Courts, New Delhi which was dismissed.

That in the interregnum multiple applications and revisions

were filed between the parties which have only been

counterproductive and have caused unnecessary delay to the

Probate proceedings.

The Petitioner herein as well as the accused attesting

witnesses of the questioned Will filed a revision petition before the

Ld. Sessions Court vide Crl. Rev. No. 59 of 2012 and Rev. Petition

No. 61 of 2012. After several hearings, the Ld. Sessions Court gave

a 36 page detailed order and disposed the case by granting a stay

order and held that “….In the result, this court of the considered

view that interest of justice requires that commencement of trial in

this case should be stayed and postponed till the announcement of

Judgment by the Probate Court in the pending previously instituted

Probate proceedings.”

The Respondent No. 1 herein filed an Appeal in the Hon’ble

High Court of Delhi vide Crl. MC 1303 of 2014 titled “Bimalendu

Ghosh Dastidar Vs State & Ors.” An order allowing the petition of

the Respondent No. 1 herein was passed by Hon’ble High Court of

Delhi which is perverse and suffers from infirmities and is bad in

 G
law. Hence the petitioner is constrained to file the present Special

Leave Petition for the redressal of his grievance.

Hence the Special leave Petition.

 H
LIST OF DATES AND EVENTS

16.07.1974 That Late Sh. Amulya Chandra Ghosh @

A.C. Ghosh i.e. father of the Petitioner and

Respondent No. 1 herein was allotted a

lease hold property bearing no. G-1224,

CR. Park, New Delhi admeasuring 160 sq.

yards, herein after mentioned as “Said

Property” which consisted of 2 BHK ground

floor.

07.08.1987 Late Sh. Amulya Chandra Ghosh as the

absolute owner of the “Said Property”

entered into a “Deed of Dedication”

whereby he permitted the Petitioner herein

to raise the first floor on the said house with

separate water and electricity connections

and tax assessments in his own name, as

the owner of the first floor. True copy of the

“Deed of Dedication” dated 07.08.1987

which was notarized and executed by the

testator on 21.12.1993 in the presence of

 I
his two daughters, is annexed herewith as

Annexure P/1(Pages )

10.05.1996 That Late Sh. Amulya Chandra Ghosh

executed a Will of the said date when he

was of good health and mentally fit wherein

he specifically mentioned “…. I therefore,

declare that after my death the sole

ownership of the household property on

plot No. G-1224 Chittaranjan Park, New

Delhi will devolve upon my son Amarnath

Ghosh Dastidar, and bequeath this property

in his favor absolutely to the exclusion of

my daughters, other son and wife.

However, my wife shall have full rights to

reside in the said premises till her demise

and enjoy the property according to her

free and sweet will. My son, Amarnath,

shall look after her welfare according to his

best abilities. This Will shall be enforceable

only after death of myself and my wife and

until I remain alive ….”

 J
That the said Will was witnessed by two

independent witnesses one being his

doctor over the years and the other his

family friend, namely Dr. Prashanta K.

Chakraborty (Respondent No. 2 herein) and

Mr. Ravi Mohan Anand (Respondent No. 3

herein). True copy of the Will dated

10.05.1996 is annexed herewith as

Annexure P/2(Pages )

16.12.1996 That Late Sh. Amulya Chandra Ghosh @

A.C. Ghosh (father of the Petitioner and

Respondent No. 1 expired on 16.12.1996

27.05.1998 Smt. Usha Ghosh, mother of the Petitioner

and Respondent No. 1 expired.

2003 That the Petitioner Amarnath Ghosh

Dastidar subsequent to the death of both

his parents went for registration of the Will

with the intention to get the “Said Property”

mutated in his favour and thereafter he

filed a Probate Petition No. 90 of 2003, for

grant of probate of Will dated 10.05.1996

 K
executed by Late Sh. A.C. Ghosh in Tis

Hazari Court, Delhi. The matter is pending

adjudication and is at the stage of

Respondent evidence which they have

been evading on one pretext or the other

after closure of PE as early as 2009.

24.05.2005 The Respondent No. 1 after being served

with notice of the Probate case 90 of 2003

filed some counter probate petition bearing

Case No. 254/2005 of a purported Will

dated 07.08.1986, alongwith a codicil

allegedly amended on 31.12.1989 and also

separately a Will bearing Case No.

253/2005 of now deceased mother of

Petitioner and Respondent No. 1 which she

had executed on 12.01.1998 whereby she

had bequeathed her one-half share in the

property to the Respondent No. 1.

Whereas, as per the Will of the late father

of the Petitioner and Respondent No. 1,

who being the sole owner of the “Said

 Property” the mother only had right to L

residence and not any ownership rights.

Whereas, at the time of the Respondent

No. 1 filed this counter probate case to the

probate case of the Petitioner bearing No.

90 of 2003, he had already taken a plea of

the same being false and fabricated. True

copy of the Probate Petition No. 90 of 2003

is annexed herewith as Annexure

P/3(Pages )

25.05.2006 That going against the settled principle of

law, an FIR was registered against the

Petitioner after a lapse of three years of

having gone in for Probate.

FIR bearing No. 171 of 2006, P.S. CR Park,

under section 468, 471, 420, 120B of IPC

1886 was registered against the Petitioner

and the other proforma Respondents No. 2

and 3 who neither had any vested interest,

nor were beneficiaries of the Will of the

 M
deceased but were close friends and

confidants of the Executor, one of them

being his doctor over the years. True copy

of the FIR dated 25.4.2006 is annexed

herewith as Annexure P4(Pages )

06.08.2007 That the Police authorities filed

chargesheet against the Petitioner. That in

the chargesheet, the Police Authorities

failed to record the 161 Cr.P.C. statements

of the material witnesses in the criminal

matter. True copy of the Chargesheet

06.08.2007 is annexed herewith as

Annexure P5(Pages ).

01.12.2007 That in the meanwhile, one Sh. T.R. Nehra,

handwriting expert & former head

(Document Division) Central Forensic

Science Laboratory, C.B.I. New Delhi

submitted his expert opinion confirming the

genuineness of the Will dated 10.05.1996.

True copy of the opinion of handwriting

 N
expert dated 01.12.2007 is annexed

herewith as Annexure P6(Pages )

01.07.2008 That another handwriting expert; Sh. B.N.

Srivastava also examined the genuineness

of the Will in the Probate Petition filed by

the Petitioner wherein the expert confirmed

the genuineness of the Will dated

10.05.1996. True copy of the opinion of

handwriting expert dated 01.07.2008 is

annexed herewith as Annexure

P7(Pages )

24.02.2009 That since the Probate Petitions were being

adjudicated, Petitioner and Respondent No

2 and 3. filed an application u/s 309 Cr.P.C.

for stay on the proceedings of the Criminal

Matter till the final disposal of the Probate

Petitions before the Ld. ACMM (South-

East), Saket Courts, New Delhi.

31.08.2009 That the Ld. ACMM (South-East), Saket

Courts, New Delhi vide Order dated

31.08.2009 dismissed the Application u/s

 O
309 Cr.P.C. for stay on the proceedings of

the Criminal Matter till the final disposal of

the Probate Petitions.

28.10.2009 That the Petitioner and the Respondent No.

2 and 3 filed a Revision Petition u/s 397

Cr.P.C. with ASJ South East for stay of

criminal trial until final decision of the

Probate Case vide order dated 18.02.2010

with the direction that the trial court can

continue but shall refrain from hearing final

argument and disposal of the case and trial

court shall not pass any final order till the

decision of the probate case. True copy of

the order dated 18.02.2010 passed by ASJ

South East Delhi is annexed herewith as

Annexure P8(Pages )

04.12.2009 That in the Probate case of the Petitioner

herein bearing No. 90 of 2003 which has a

direct bearing on the outcome of this

criminal case filed against the Petitioner by

the Respondent No. 1 is being purposely

 P
delayed with malafide intentions. It is

pertinent to point out that the evidence of

the Respondent No. 1 were closed and he

was proceeded ex-parte as from

20.01.2009, 21.04.2009, 12.08.2009,

04.12.2009. The Respondent No. 1

knowingly with the intention to delay the

outcome of the proceedings was acting as

such. Subsequently, on an application by

the Respondent No. 1, the ex-parte order

was recalled and a last and final

opportunity for completion of the RE was

given on 16.11.2012 but shockingly till date

the Respondent No. 1 has evaded the

proceedings and has been delaying the

proceedings endlessly by taking

innumerable adjournments and not

allowing the court to come to a proper

finding in the Probate case filed by the

Petitioner in 2003. The Respondent No. 1

has obvious malafide intention of usurping

 Q
the property which was bequeathed to the

Petitioner herein.

18.02.2010 The Petitioner filed a Revision Petition

against the order of the Ld. MM dated

31.08.2009 wherein under section 309 of

CrPC, the Ld MM had dismissed the

application for stay. The Ld. ASJ vide an

order dated 18.02.2010 held that “….Trial

Court refrain from hearing final argument

and shall not pass any final order till the

decision of the probate case…”

04.12.2010 That arguments were advanced before the

trial court on the point of charge together

with written submissions supported by the

various judgments.

05.02.2011 Order for framing of charge under section

420, 467, 468, 471, 120-B IPC was passed

against the Petitioner and Respondent No.

2 and 3. True copy of the order dated

11.02.2011 is annexed herewith as

Annexure P9(Pages )
 R
05.05.2011 That a Crl. Rev. Petition bearing No. 228 of

2011 was filed by the Petitioner herein

before the Hon’ble High Court of Delhi

wherein the Hon’ble Court was pleased to

grant interim stay.

08.10.2012 That the said Petition bearing No. Crl. Rev.

Petition No. 228 of 2011 was disposed of

by allowing the Petitioner to “…to withdraw

this petition with liberty to file a revision

petition before the sessions court. Leave

and liberty granted. In case revision is filed

within two weeks, same shall be heard and

disposed of the present petition...”

27.09.2013 The Ld. Sessions Court disposed of the Crl.

Rev. No. 59 of 2012 filed by the

Respondent No. 2 and Rev. Petition No. 61

of 2012 filed by the Petitioner herein by a

detailed order going into the facts and

settled law in cases of Probate. The order

running into pages is well reasoned as the

Hon’ble Court held “….In the result, this

 S

court of the considered view that interest

of justice requires that commencement of

trial in this case should be stayed and

postponed till the announcement of

Judgment by the Probate Court in the

pending previously instituted Probate

proceedings. Parties shall place on record

certified copy of judgment within two

weeks of passing of the order therein and

thereafter, this criminal proceeding arising

out of FIR No. 171/2006. PS Chittranjan

Park shall be revived and Learned Trial

Court shall re-hear the parties afresh on the

point of charge. in the light of findings and

conclusions arrived at by the Probate Court.

Revision petitions are disposed of in

aforesaid terms….” True copy of the order

dated 27.09.2013 is annexed herewith as

Annexure P10(Pages )

26.02.2014 The Respondent No. 1 filed Crl. MC 1303 of

2014 titled “Bimalendu Ghosh Dastidar Vs

 T
State & Ors..” True Copy of the Crl. MC

1303 of 2014 is annexed herewith as

Annexure P11(Pages )

28.08.2015 That the parties were open to settle the

matter by mediation and the matter kept

lingering on before the Ld. Mediator from

28.08.2015, 04.09.2015, 07.09.2015,

05.10.2015, 15.10.2015, 17.10.2015,

23.02.2016, 04.08.2017, 08.08.2017,

18.09.2017, 23.10.2017, 17.11.2017,

15.12.2017, 23.03.2018, 17.05.2018,

11.04.2019, 09.04.2019, 22.05.2019,

23.05.2019, 31.05.2019, 01.06.2019,

16.07.2019, 29.07.2019, 20.08.2019,

28.08.2019, 17.09.2019 and 24.09.2019

and eventually went back to the court as

“Not Settled.” That it is shocking as to how

the Respondent No. 1 managed to

manipulate and linger the matter from 2015

to 2019 before the Mediator to not only

delay the process but also stall the Probate

 U
matter filed so that there is no outcome of

the same. True copy of the Order sheet of

the mediation center dated 24.09.2019 of

the Hon’ble High Court to the effect are

Annexed herewith as Annexure

P12(Pages ) True copy of the Crl.

Misc. 1303/2024 & Crl. M.A. 4416/2014

preferred before the Hon’ble High Court is

Annexed herewith as Annexure P12 (Pages

It is also pertinent to point out that the

Respondent No. 1 and the Petitioner herein

had signed an out of court memorandum of

settlement but the same was neither acted

upon by the Respondent No. 1, nor has

been inadvertently been filed as an

annexure. The Petitioner during the course

of arguments can place it before the

Hon’ble Court if so permitted.

05.12.2023 The Impugned Judgment & Final Order

dated 05.12.2023 was passed by the

 V

Hon’ble High Court of Delhi at New Delhi in

Crl. Misc. 1303/2024 & Crl. M.A.

4416/2014. which is erroneous, perverse

and suffers from infirmities and is bad in

law. The Hon’ble Court while allowing the

petition of the Respondent held “……In

view of the above discussion, the impugned

judgment is not sustainable in law and

therefore, is set aside. Since the revision

petitions were filed with respect to

challenge of an order framing charge by the

learned Metropolitan Magistrate and the

said issue was not decided, the matter is

remanded back to the learned ASJ for

deciding the said petitions in accordance

with law.….."

09/07/2024 Hence this petition.

 1

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved On: 2nd November, 2023

Pronounced On: 5th December, 2023

CRL.M.C. 1303/2014 & CRL.M.A. 4416/2014 (Stay)

BIMALENDU GHOSH DASTIDAR ... Petitioner

Through: Mr. Aseem and Mr. Amit

Saxena, Advocates

Versus

STATE & ORS ...Respondents

Through: Mr. Aman Usman, APP

for the State. SI Amit

Kumar Dagar, Sec-V,

EOW. Mr. M.L. Yadav,

Advocate for R-2 to 4.

CORAM:

HON’BLE MR. JUSTICE AMIT SHARMA

JUDGMENT
 2

AMIT SHARMA, J.

1. The present petition under Section 482 of the Code of Criminal

Procedure, 1973 (‘CrPC’) challenges the judgment dated

27.09.2013 passed by learned Additional Sessions Judge-04 and

Special Judge (NDPS), South-East, Saket in CR No. 59/2012 and

61/2012, whereby the proceedings pending in the Court of learned

Chief Metropolitan Magistrate, South-East, Saket, arising out of FIR

No. 171/2006 under Sections 420/467/468/471/120B of the Indian

Penal Code, 1860 (‘IPC’), registered at P.S. C.R. Park (investigated

by Crime Branch, EOW) were stayed till the conclusion of

proceedings in Probate Case No. 90 of 2003; 386/06 pending

before the Court of learned Additional District Judge, Central, Tis

Hazari, Delhi.

2. The facts necessary for adjudication of the present petition are

as under:

i. At the instance of the present petitioner, FIR No. 171/2006

under Sections 420/467/468/471/120B of the IPC, was

registered at P.S. C.R. Park (investigated by Crime Branch,

EOW).

ii. It is the case of the petitioner that his father, late Sh. AC Ghosh

had bequeathed the property bearing no. G 1224, C.R. Park,

 3

New Delhi by way of a will dated 07.08.1989 and a codicil

dated 31.02.1989 in equal proportions to his wife Smt. Usha

Ghosh Dastidar and the present petitioner/Sh. Bimalendu

Ghosh Dastidar.

iii. It is stated that late Sh. A.C. Ghosh passed away on

16.12.1996 and his wife Smt. Usha Ghosh passed away on

27.05.1998. It is the case of the petitioner that his mother

Smt. Usha Ghosh left behind her will dated 12.01.1998

bequeathing her share in the said property in favour of the

present petitioner.

iv. It is the case of the petitioner that respondent no.2 filed a

probate petition in 2003 seeking grant of probate of will dated

10.05.1996 alleged to have been executed by late Sh. AC

Ghosh in the Court of the learned District Judge, Tis Hazari.

On being served with the notices of the said probate case, the

petitioner came to know about the aforesaid forged and

fabricated will.

v. That report from GQD was sought and it came on record that

the will before the Probate Court was allegedly forged. After

investigation in the aforesaid FIR, the chargesheet was filed

 4

against respondents no. 2 to 4. (respondents no. 3 and 4 were

witnesses to the alleged forged will).

vi. The present respondents 2 to 4 filed a petition, i.e., CRL.MC.

3234/2007, which was dismissed as withdrawn vide order

dated 11.10.2007.

vii. Subsequently, an application under Section 309 of the Cr.P.C.

was filed by the respondents before the Court of learned

ACMM seeking stay of proceedings till the decision of the Civil

Court in the Probate Case. The said application was dismissed

vide order dated 31.08.2009.

viii. The aforesaid order dated 31.08.2009 was challenged by

respondents no. 2 to 4 before this Court vide CRL.M.C.

3638/2009. The said petition was withdrawn with permission

to file an appropriate application before learned Session Court

vide order 23.10.2009. In pursuance of the aforesaid order, a

revision petition against the order dated 31.08.2009 was filed

before the learned Additional Sessions Judge, which was

disposed of vide order dated 18.02.2010 holding that the trial

would continue but the learned Trial Court would not pass a

final order till the decision of the Probate Case.

 5

ix. Respondent no.4 herein challenged the said order dated

18.02.2010 in CRL.M.C. 29/2010 and sought quashing of FIR

and the chargesheet and the same was dismissed as

withdrawn vide order 08.01.2010.

x. The aforesaid order 18.02.2010 passed by learned ASJ in the

revision petition challenging the order dated 31.08.2009

dismissing the application under Section 309 of the CrPC, was

challenged by respondent no.2 herein vide CRL.M.C.

837/2010, which was dismissed vide order dated 17.03.2010

passed by a learned Single Judge of this Court.

xi. The learned Trial court, after hearing arguments directed

framing of charges vide order dated 05.02.2011 and formal

charges were framed on 18.02.2011 under Sections

120B/420/467/468/471 of the IPC.

xii. Thereafter, Respondent no. 3 filed CRL.MC. 440/2011 before

this Court seeking quashing of FIR and consequent

chargesheet. Similarly, respondents no. 2 and 4 also filed

CRL.REV. P. 288/2011 and 196/2011, respectively challenging

the order framing charge. The said three petitions were

disposed of by a learned predecessor bench of this Court vide

 6

order dated 08.10.2012 with liberty to approach the learned

Sessions Court.

xiii. Pursuant to the aforesaid order, respondents no. 2 to 4

approached the Sessions Court by way of revision petitions,

which were disposed of by the learned ASJ vide the impugned

judgment dated 27.09.2013.

3. Learned counsel for the petitioner submitted that the learned

ASJ has committed a grave error and illegality by exceeding his

jurisdiction and superseding order dated 17.03.2010 passed by a

learned Single Judge of this Court in CRL.MC 837/2010, wherein it

was recorded that ‘Appropriate course for the petitioner would be

to get the Probate proceedings expedited, rather than to get the

criminal proceedings stalled or postponed.’ It was submitted that

despite the specific orders by this Court, the learned ASJ passed

the impugned judgment. Learned counsel for the petitioner placed

reliance on Iqbal Singh Marwah & Anr. v. Meenakshi Marwah &

Anr., (2005) 4 SCC 370, wherein it was held as under:

24. There is another consideration which has to be kept in

mind. Sub-section (1) of Section 340 CrPC contemplates

holding of a preliminary enquiry. Normally, a direction for

filing of a complaint is not made during the pendency of the

 7

proceeding before the court and this is done at the stage

when the proceeding is concluded and the final judgment is

rendered. Section 341 provides for an appeal against an

order directing filing of the complaint. The hearing and

ultimate decision of the appeal is bound to take time. Section

343(2) confers a discretion upon a court trying the complaint

to adjourn the hearing of the case if it is brought to its notice

that an appeal is pending against the decision arrived at in

the judicial proceeding out of which the matter has arisen. In

view of these provisions, the complaint case may not proceed

at all for decades specially in matters arising out of civil suits

where decisions are challenged in successive appellate fora

which are time-consuming. It is also to be noticed that there

is no provision of appeal against an order passed under

Section 343(2), whereby hearing of the case is adjourned

until the decision of the appeal. These provisions show that,

in reality, the procedure prescribed for filing a complaint by

the court is such that it may not fructify in the actual trial of

the offender for an unusually long period. Delay in

prosecution of a guilty person comes to his advantage as

witnesses become reluctant to give evidence and the

 8

evidence gets lost. This important consideration dissuades us

from accepting the broad interpretation sought to be placed

upon clause (b)(ii).

25. An enlarged interpretation to Section 195(1)(b)(ii),

whereby the bar created by the said provision would also

operate where after commission of an act of forgery the

document is subsequently produced in court, is capable of

great misuse. As pointed out in Sachida Nand Singh [(1998)

2 SCC 493: 1998 SCC (Cri) 660] after preparing a forged

document or committing an act of forgery, a person may

manage to get a proceeding instituted in any civil, criminal or

revenue court, either by himself or through someone set up

by him and simply file the document in the said proceeding.

He would thus be protected from prosecution, either at the

instance of a private party or the police until the court, where

the document has been filed, itself chooses to file a

complaint.

26. The litigation may be a prolonged one due to which the

actual trial of such a person may be delayed indefinitely. Such

an interpretation would be highly detrimental to the interest

of the society at large.

 9

27.The learned author has referred to Sheffield City Council

v. Yorkshire Water Services Ltd. [(1991) 1 WLR 58 : (1991)

2 All ER 280] , WLR at p. 71, where it was held as under:

“Parliament is taken not to intend the carrying out of

its enactments to be unworkable or impracticable, so the

court will be slow to find in favour of a construction that leads

to these consequences. This follows the path taken by judges

in developing the common law. ‘..…the common law of

England has not always developed on strictly logical lines,

and where the logic leads down a path that is beset with

practical difficulties the courts have not been frightened to

turn aside and seek the pragmatic solution that will best

serve the needs of society’.”

28. In S.J. Grange Ltd. v. Customs and Excise Commrs.

[(1979) 2 All ER 91 : (1979) 1 WLR 239] while interpreting a

provision in the Finance Act, 1972, Lord Denning observed

that if the literal construction leads to impracticable results,

it would be necessary to do little adjustment so as to make

the section workable. Therefore, in order that a victim of a

crime of forgery, namely, the person aggrieved is able to

exercise his right conferred by law to initiate prosecution of

 10

the offender, it is necessary to place a restrictive

interpretation on clause (b)(ii).

29. Dr. Singhvi has also urged that since we are dealing with

a penal provision it should be strictly construed and in

support of his proposition he has placed reliance upon a

Constitution Bench decision in Tolaram Relumal v. State of

Bombay [(1955) 1 SCR 158 : 1954 Cri LJ 1333] wherein it

was held that it is well-settled rule of construction of penal

statutes that if two possible and reasonable constructions can

be put upon a penal provision, the court must lean towards

that construction which exempts the subject from penalty

rather than the one which imposes penalty and it is not

competent for the court to stretch out the meaning of

expression used by the legislature in order to carry out the

intention of the legislature. The contention is that since

Section 195(1)(b)(ii) affords protection from private

prosecution, it should not be given a restrictive interpretation

to curtail its scope. We are unable to accept such broad

proposition as has been sought to be urged. In Craies on

Statute Law (1971 Edn., Chapter 21), the principle regarding

penal provisions has been stated as under:

 11

“But penal statutes must never be construed so as to

narrow the words of the statute to the exclusion of cases

which those words in their ordinary acceptation would

comprehend……. But where the thing is brought within the

words and within the spirit, there a penal enactment is to be

construed, like any other instrument, according to the fair

common-sense meaning of the language used, and the court

is not to find or make any doubt or ambiguity in the language

of a penal statute, where such doubt or ambiguity would

clearly not be found or made in the same language in any

other instrument.

32. Coming to the last contention that an effort should be

made to avoid conflict of findings between the civil and

criminal courts, it is necessary to point out that the standard

of proof required in the two proceedings are entirely

different. Civil cases are decided on the basis of

preponderance of evidence while in a criminal case the entire

burden lies on the prosecution and proof beyond reasonable

doubt has to be given. There is neither any statutory

provision nor any legal principle that the findings recorded in

one proceeding may be treated as final or binding in the

 12

other, as both the cases have to be decided on the basis of

the evidence adduced therein. While examining a similar

contention in an appeal against an order directing filing of a

complaint under Section 476 of the old Code, the following

observations made by a Constitution Bench in M.S. Sheriff v.

State of Madras [1954 SCR 1144: AIR 1954 SC 397 : 1954

Cri LJ 1019] give a complete answer to the problem posed:

(AIR p. 399, paras 15-16)

15. As between the civil and the criminal proceedings

we are of the opinion that the criminal matters should be

given precedence. There is some difference of opinion in the

High Courts of India on this point. No hard-and-fast rule can

be laid down but we do not consider that the possibility of

conflicting decisions in the civil and criminal courts is a

relevant consideration. The law envisages such an

eventuality when it expressly refrains from making the

decision of one court binding on the other, or even relevant,

except for certain limited purposes, such as sentence or

damages. The only relevant consideration here is the

likelihood of embarrassment.
 13

16. Another factor which weighs with us is that a civil

suit often drags on for years and it is undesirable that a

criminal prosecution should wait till everybody concerned has

forgotten all about the crime. The public interests demand

that criminal justice should be swift and sure; that the guilty

should be punished while the events are still fresh in the

public mind and that the innocent should be absolved as early

as is consistent with a fair and impartial trial. Another reason

is that it is undesirable to let things slide till memories have

grown too dim to trust.

This, however, is not a hard-and-fast rule. Special

considerations obtaining in any particular case might make

some other course more expedient and just. For example,

the civil case or the other criminal proceeding may be so near

its end as to make it inexpedient to stay it in order to give

precedence to a prosecution ordered under Section 476. But

in this case we are of the view that the civil suits should be

stayed till the criminal proceedings have finished.

 14

Reliance was further placed on Syed Askari Hadi Ali

Augustine Imam & Ors. v. Dtate (Delhi Administration) &

Ors., (2009) 5 SCC 528.

4. Learned counsel for respondents no. 2 to 4 submitted that the

impugned judgment does not overreach the order dated

17.03.2010 passed by a learned Single Judge of this Court in

CRL.MC. 837/2010 as in a subsequent order passed on 08.10.2012,

a learned Single Judge of this Court had given liberty to

respondents no. 2 to 4 to agitate the issue regarding continuation

of criminal proceedings in view of the pendency of the probate

proceedings, instituted at an earlier point in time.

5. It was submitted that order dated 17.03.2010 was passed before

charges were framed by the learned Trial Court and the impugned

judgment was passed in the context of framing of charge. It was

further pointed out that the sequence of orders passed by this

Court has been duly considered in the impugned judgment, in

paragraphs 6 to 8 which read as under:

“6. It may be noted that accused persons filed CrI. M.C

No. 3234/07 before High Court of Delhi praying for quashing

of the FIR which was dismissed as withdrawn vide orders

dated 11.10.2007. An application under Section 309 Cr.P.C

 15

for stay of the proceedings till the decision of the Civil court

in Probate case filed by revisionists was dismissed by Learned

Metropolitan Magistrate vide orders dated 31.08.2009.

Revisionists, challenged the said order dated 31.08.2009 vide

CrI. M.C No. 3638/2009, which was withdrawn with the

permission to file appropriate application before the Sessions

Court on 23.10.2009. Thereafter, revisionists filed revision

petition against the orders which were disposed off vide order

dated 18.02.2010, wherein Learned ASJ held that the “Trial

Court shall not pass final orders till the decision of the probate

case.” Respondent-Amarnath Ghosh (A-1) filed a CrI MC No.

837/2010 challenging order of Ld. ASJ, which was dismissed

vide order dated 17.03.2010.

7. On 05.02.2011, Learned Trial Court, after hearing

the arguments directed framing of charges and on

18.02.2011, charges Under Section 420/467/468/471 all r/w

120-B IPC were framed. Charges framed against revisionist,

in nutshell, are that they entered into a conspiracy of forging

the Will dated 10.05.1996 of late Sh. Amulya Chandra Ghosh

for the purpose of cheating, his brother-the complainant and

in furtherance of which they forged the aforesaid Will and got

 16

it registered with sub-registrar VII inducing him to believe

the existence of the Will.

8. Revisionist/Dr. Prasant Chakroborty filed a CrI.M.C

No. 440/2011 praying for quashing of FIR and charges.

Revisionist/Ravi Mohan Anand filed a Criminal Revision

196/2011 and Amarnath Ghosh also filed a Crl. Rev. No.

228/2011 challenging the order of framing of charges,

v/herein the Hon’ble High Court on 05.05.2011 was “pleased

to stay the proceedings” and all these petitions were

disposed of on 08.10.2012, whereby liberty was granted by

the High Court to the revisionists to approach Sessions Court.

Hence, these two separate revision petitions are preferred by

the three accused, before this Court.”

6. Learned counsel for respondents no. 2 to 4 further submitted

that the petitioner has been delaying the proceedings in the

Probate Case initiated on behalf of respondent no. 2. It was

submitted that the petitioner has been proceeded ex-parte twice in

the said proceedings, on 28.02.2005 and 04.12.2009. It was

further argued that the petitioner has been taking adjournments

and ensuring that the case does not reach its conclusion. It was

submitted that respondent no.2 has concluded the evidence in the

 17

probate proceedings, however, the petitioner has not even

completed his evidence after passage 14 years since 2009. Learned

counsel further submitted that the dates of filing of Probate Case

and the criminal complaint are most relevant to decide whether the

criminal proceedings should be kept in abeyance till the conclusion

of the probate case. Reliance was placed on Sardool Singh & Anr.

v. Smt. Nasib Kaur, 1987 Supp SC 146, Ravinder Kumar Jain & Ors.

v. State & Anr., order dated 10.09.2010 passed by a coordinate

bench in CRL.MC. 620/2009, Usha Chakraborty & Anr. v. State of

West Bengal & Anr., 2023 INSC 86 and State of Andhra Pradesh v.

Golconda Linga Swamy & Anr., 2004 SCC OnLine SC 747.

7. Heard learned counsel for the parties and perused the record.

8. The impugned judgment was passed in revision petitions

challenging the order of framing of charge by learned Metropolitan

Magistrate. The learned ASJ, while passing the impugned

judgment, was exercising the powers under Section 399 read with

Section 401 of the CrPC. The learned ASJ, while exercising such

power, was examining the correctness, legality or propriety of the

order challenged by respondents no.2 to 4. The impugned

judgment, without examining the order on charge proceeded to

exercise power under Section 309 of the CrPC.

 18

9. Section 399 of the CrPC provides that in case of any proceedings,

the record of which has been called by the learned Sessios Judge,

the latter may exercise any of the powers which may be exercised

by the High Court under Section 401(1) of the CrPC, which provides

as under:

“401. High Court’s powers of revision. - (1) In the case of any

proceeding the record of which has been called for by itself

or which otherwise comes to its knowledge, the High Court

may, in its discretion, exercise any of the powers conferred

on a Court of Appeal by sections 386, 389, 390 and 391 or

on a Court of Session by section 307, and, when the Judges

composing the Court of Revision are equally divided in

opinion, the case shall be disposed of in the manner provided

by section 392.

Section 386 of the CrPC lays down the powers of the

appellate court, in the following manner:

386. Powers of the Appellate Court. - After perusing

such record and hearing the appellant or his pleader, if he

appears, and the Public Prosecutor if he appears, and in case

of an appeal under section 377 or section 378, the accused,

if he appears, the Appellate Court may, if it considers that

 19

there is no sufficient ground for interfering, dismiss the

appeal, or may –

(a) in an appeal from an order or acquittal, reverse

such order and direct that further inquiry be made, or that

the accused be re-tried or committed for trial, as the case

may be, or find him guilty and pass sentence on him

according to law;

(b) in an appeal from a conviction

(i) reverse the finding and sentence and acquit or

discharge the accused, or order him to be re-tried by a

Court of competent jurisdiction subordinate to such

Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

168

(iii) with or without altering the finding, alter the

nature or the extent, or the nature and extent, of the

sentence, but not so as to enhance the same:

(c) in an appeal for enhancement of sentence –

(i) reverse the finding and sentence and acquit or

discharge the accused or order him to be re-tried by a

Court competent to try the offence, or

 20

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the

nature or the extent, or, the nature and extent, of the

sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse

such order;

(e) make any amendment or any consequential or

incidental order that may be just or proper:

Provided that the sentence shall not be enhanced

unless the accused has had an opportunity of showing

cause against such enhancement:

Provided further that the Appellate Court shall not

inflict greater punishment for the offence which in its

opinion the accused has committed, than might have

been inflicted for that offence by the Court passing the

order or sentence under appeal.”

Section 389 of the CrPC provides for suspension of sentence

pending appeal and release of the appellant on bail. Sections 390

and 391 of the CrPC provide for arrest of the accused in an appeal

from acquittal and for power of the appellate court to take further
 21

evidence, respectively. A perusal of the aforesaid provisions

demonstrates that the learned ASJ, while examining the petitions

challenging the order on charge, had no jurisdiction to pass an

order under Section 309 of the CrPC.

10. In the aforesaid context, it is relevant to note that in CRL.MC

837/2010, a learned Single Judge, vide order dated 17.03.2010,

held as under:

“Pendency of Probate proceedings is a ground put forth for

the stay of the criminal proceedings in FIR No. 171/2006 under

Sections 420/467/468/471/120-B of IPC registered at PS C.R. Park,

New Delhi. Revisional Court in the impugned order of 18th

February, 2010 has declined to do so by giving the following

reasoning:-

In the present case the criminal case is at the stage of charge

and it would definitely take some time before the case wouid

come at the stage of evidence. The Probate case is stated to

be at the stage of evidence. I am of the view that it would

not serve any purpose if the proceedings before the criminal

court are stayed at this stage. The passage of time make

evidence stale and insipid. To avoid that it would be

appropriate if the Trial Court proceed with the criminal trial

 22

as well simultaneously with the civil proceedings because

there is no bar at proceeding with the criminal trial when the

civil proceedings are also pending. However, I am also of the

view that the Judgment in Probate case would be of a binding

nature and it may have its legal repercussions on the

proceedings in the criminal court. Therefore, it would be

more appropriate if the criminal proceedings are allowed to

continue but the Trial Court refrain from hearing final

argument and disposal of the case. The Trial Court can

continue with the trial hut shall not pass any final order till

the decision of the Probate case. After the Probate case is

decided either of the party6 may file certified copy thereof

before the Trial Court in the criminal proceedings which shall

take into consideration the decision of a Probate Court and

thereafter proceed as per the mandate of law.”

Counsel for the petitioner relies upon decisions reported in

1984 RLR 125; 1987 (Supp) Supreme Court Cases 146 and 2009

[3] JCC 1705 to contend that Probate proceedings were initiated

first and are at fairly advanced stage and have important bearing
 23

upon the criminal proceedings which are at the initial stage of

charge.

“After having heard learned counsel of the petitioner

and upon perusal of the decisions cited, this Court finds that

the mandate of Section 309 of the Code of Criminal

Procedure is that the trial in the criminal proceedings has to

be expeditious and for valid reasons only, the criminal

proceedings should be adjourned. Learned counsel for the

petitioner could not find any fault with the aforesaid

reasoning of the trial court and I find no reason to take a

different view than the one taken by the trial court in the

impugned order. Appropriate course for the petitioner would

be to get the Probate proceedings expedited, rather than to

get the criminal proceedings stalled or postponed.

In the light of the aforesaid, this petition and the

pending application are dismissed while refraining to express

any opinion on the merits of the case.”

The aforesaid order clearly closed the issue between the parties

with respect to postponement of the criminal proceedings, awaiting

the outcome of the probate proceedings. The said order was

 24

passed after examining Section 309 of the CrPC. Since the

aforesaid order was not challenged, the same has attained finality.

The learned ASJ, while dealing with the aforesaid order in the

impugned judgment, observed as under:

28. Earlier on filing of an application u/s 309 Cr. P.C ,

the pronouncement of Judgment in this case was stayed and

Trial Court is restrained to finally hear and dispose of the case

vide order dated 18.02.2010 of Learned ASJ. It may be noted

that even the said order observed that “the Judgment in the

Probate case would be of binding nature and may have its

legal repercussions on criminal case.” The said order was

maintained by the High Court on 17.03.2010. The reason,

why a fresh conclusion is required to be drawn is that the

orders dated 18.02.2010 and 17.03.2010 were passed before

framing of the charge and now vide order dated 05.02.2011,

Trial Court has ordered to frame charges. Now, after sifting

and weighing material on record, this Court has to see the

legality and propriety of the impugned order. Legal position

is well settled that as the matter proceeds to the next stage,

all the earlier conclusions stand effaced and are required to

be redrawn in accordance with Law (reliance may be placed

 25

on para 41 “Nupur Talwar vs CBI (2013) 1 SCC 465”). Now,

the challenge in these petitions is to the framing of charges,

therefore, while exercising revisional jurisdiction, this Court

is also called upon to consider the relevance of Judgment in

probate case u/s 41 of Indian Evidence Act and its effect and

impact on framing of charges against accused and likelihood

of embarrassment to them in continuation of trial.”

11. The aforesaid observation made by the learned ASJ is not

tenable. There was no fresh application under Section 309 of the

CrPC which was filed after framing of charge by the learned

Metropolitan Magistrate, requiring a consideration of the

applicability of the said section in the facts of the case. Further, in

any case, the said power vests with the concerned Trial Court and

not with the learned Session Court in revisional jurisdiction. As

pointed out hereinabove, the present issue of exercise of power

under Section 309 of the CrPC was not under challenge before the

learned ASJ in petitions filed by respondents no. 2 to 4.

12. In view of the above discussion, the impugned judgment is

not sustainable in law and therefore, is set aside. Since the revision

petitions were filed with respect to challenge of an order framing

charge by the learned Metropolitan Magistrate and the said issue

 26

was not decided, the matter is remanded back to the learned ASJ

for deciding the said petitions in accordance with law.

13. The parties are directed to appear before the learned ASJ on

18.12.2023, at 02:30 PM.

14. The petition is allowed and disposed of with the above

directions.

15. Pending application, if any, also stand disposed of.

16. Copy of the judgment be sent to the concerned learned

Sessions Court for necessary information and compliance.

17. Judgment be uploaded on the website of this Court,

forthwith.

AMIT SHARMA
JUDGE
DECEMBER 05, 2023/nk

// True copy//
 27

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
ORDER XXII RULE 2(1) (A)
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)
SPECIAL LEAVE PETITION (CRL) NO. : OF 2024
(WITH PRAYER FOR INTERIM RELIEF)
IN THE MATTER OF: POSITION OF PARTIES
Lower High Court This Court
Court
1 Amarnath Ghosh Respt Petitioner Petitioner
DastidarS/o Late
AmulyaChandra
Ghose Dastidar
R/o G-1224, C.R.
Park, New Delhi
Versus
1. The State of Delhi Respondent Opp. Respondent
through The
Party
Secretary,
Home & Hill
Affairs Department
New Delhi
2. Dr. Prashant K. Respondent Opp. Respondent
Chakraborty Party
S/o Late P.C.
Chakraborty
R/o B-234, C.R.
Park New Delhi
3. Ravi Mohan Anand Respondent Opp. Respondent
S/o Major(Rtd.) R. Party
N. Anand
 28

R/o D-11, Vivek

Vihar New Delhi-
110096.

TO,
The Hon’ble Chief Justice of India and his Hon’ble companion
Justices of the Supreme Court of India
The Humble Petition on behalf of the Petitioner above named

MOST RESPECTFULLY SHEWETH:-

1. The present Special Leave Petition is being preferred against

Judgment & Final Order dated 05.12.2023 passed by the

Hon’ble High Court of Delhi at New Delhi in Crl. Misc.

1303/2024 & Crl. M.A. 4416/2014 (hereinafter referred to as

“the impugned judgment and final order”).

2. QUESTIONS OF LAW:
a. Whether the Hon’ble High Court had gone beyond the

Jurisdiction of a criminal court by discussing the legality

of the will which confines under the jurisdiction of a civil

court?

b. Whether the Hon’ble High Court rightly appreciated the

settled provisions of law that the Probate Court has

exclusive jurisdiction to adjudicate upon the

 29

genuineness of the will and even the Civil Courts have

no jurisdiction to go into the said question?

c. Whether the Hon’ble High Court was right in setting

aside the order of the Ld. Sessions Court by subjecting

the Petitioner to multiple trials or court proceedings for

the same cause of action?

d. Whether the Hon’ble High Court was right in remanding

back the case to the Ld. ASJ for deciding the petition

again after a lapse of almost ten years when the Ld.

sessions court had already given a detailed reasoned

finding to the same as per settled principles of law?

e. Whether the Hon’ble High Court erred in enlarging the

scope of section 309 CrPC and discussing the sections

401, 386, 389, 390 and 391 of CrPC in a FIR alleging

fabrication and forgery of the Will, for which, the same

objections have already been taken by the Respondent

No. 1 in the Probate Case. The other sections which

pertains to the arrest of an accused and an appeal from

acquittal have no relevance to the dispute in question

which pertains to the veracity and genuineness of a

Will?
 30

f. Whether the Hon’ble High Court was right in enlarging

the scope of Section 482 CrPC by entertaining this

petition and remanding the matter back for the second

time to the Ld. Sessions Court for re-consideration and

this time after a lapse of 10 years?

3. DECLARATION IN TERMS OF RULE 2(2):

The Petitioner stated that no other petition seeking leave to appeal
has been filed by the Petitioner Impugned judgment & Final Order
dated 05.12.2023 passed by the Hon’ble High Court of Delhi at New
Delhi in Crl. MC 1303 of 2014.
4. DECLARATION IN TERMS OF RULE 4:
That the petitioner states that the Annexure P/1 to P-12 produced
file alongwith the petition are True copies of the pleadings
/documents which form part of the records of the case in the court
below against whose order the leave to appeal is sought for in this
petition.
5. GROUNDS:
The Petitioners crave the indulgence of this Hon’ble Court to grant
Special Leave to appeal inter alia on the following grounds set out
hereinafter without prejudice to one another:-
A. That the Hon’ble High Court erred in not appreciating that

the parties are both senior citizens, the Petitioner being 67 years

old, and the Respondent No. 1 being 78 years of age who have

been litigating since the past 20 plus years. The findings which

the Hon’ble High Court arrived at in the present matter has

 31

taken almost about 10 years, on account of the matter being

delayed in the Mediation Centre for more than 5-6 years and

with a report of the same being “Not Settled”. On account of the

impugned order, the parties have effectively been placed in a

situation as though they have just preferred a fresh petition.

That the Hon’ble High Court, under its inherent powers, should

have considered the long delay and could have exercised its

unfettered powers under Section 482 CrPC to determine the

dispute at this stage.

B. That the Hon’ble High Court failed to appreciate the law laid

down in the matter of Gurmeet Singh Chopra vs. Taruna Chopra

& Ors. 1969 (2010) DLT 688 , and upheld by a catena of

judgments, wherein it has been held that it is the Probate Court

that has the jurisdiction to decide the question of veracity and

genuineness of the will.

C. That the Hon’ble High Court erred in not appreciating that

the judgment of the Probate case would significantly affect the

charges that can or should be framed in the criminal matter.

That proceeding with the criminal matter at this stage would be

counterproductive, and if the Probate Case is decided in favour

 32

of the Petitioner herein, then he would have undergone the

rigours of criminal trial unnecessarily.

D. That the Hon’ble High Court erred in not appreciating that

the Session Court in revisional jurisdiction had called for the

entire trial court records, and exercising his powers under Sec.

397 CrPC had the authority to check the legality and propriety

of any order passed by the Trial Court, and also had the

authority to suspend the execution of any order. That the order

of the Trial Court to move ahead in the criminal case, without

waiting for the outcome of the Probate Case was against the

principles of natural justice, and the Sessions Court was correct

in directing the Trial Court to postpone the further hearing of

the case till the disposal of the probate case.

E. That the Hon’ble High Court wrongly interpreted the present

case on technical aspects of the issue that the Revision Petition

before the Sessions Court was not from the order dismissing the

application u/S 309 CrPC, but was from the order dated

11.02.2011 farming the charges. That the Ld. Sessions Court

rightly took a holistic view of the entire matter at hand correctly

came to a decision that the criminal trial should not proceed till
 33

the question of genuineness of the will is decided by the Probate

Court.

F. That the Hon’ble High Court erred in not appreciating that

the Probate case filed by the Petitioner pertains to a Will dated

10.05.1996, whereas the Respondent No. 1 is relying on a Will

dated 07.08.1986 modified on 31.12.1989. Unfortunately, the

Hon’ble High Court has decided all these issues in a criminal

proceeding thereby usurping the power and procedure laid

down for the Probate Court.

G. For that the Ld. Single Judge has gravely erred in stating that

the Ld. Sessions Judge vide an order dated 27.09.2013 has

superseded the order of the Hon’ble High Court of Delhi passed

in Crl. MC 837/2010 vide an order dated 17.03.2010 wherein it

was mentioned that “…Appropriate course for the petitioner

would be to get the Probate proceedings expedited, rather than

to get the criminal proceedings stalled or postponed…” That the

order of the predecessor High Court was prior to the stage of

framing of charges which were framed on 18.02.2011 under

section 120b, 420, 467, 468, 471 of IPC. That the Hon’ble High

Court erred in not appreciating that the revision petition bearing

No. 59 of 2012 and 61 of 2012 were as per the order of the

 34

Hon’ble Mr. Justice A.K. Pathak dated 08.10.2012 whereby

liberty was granted to the Petitioner herein to file fresh petition

before the sessions court.

H. That the Hon’ble High Court failed to appreciate that the Ld.

Sessions Court had not discharged the Petitioner from the

criminal charges, but had only acted in a supervisory capacity

and had suspended the criminal trial till the findings of the

probate court were brought on record.

I. That the Hon’ble High Court failed to appreciate that

permitting the criminal proceedings to continue would be pre-

empting the outcome of the Probate Case. Hypothetically, if the

Probate Case were to allow the case of the Petitioner and grant

him Probate and simultaneously if the criminal proceedings were

to reach a conclusion that all the offences are made out against

the Petitioner, then which judgment would prevail as both would

be juxtaposed and contrary to each other. That the general

objection in every Probate Case is qua the genuineness of the

Will and allegations of the same being forged and fabricated. If

the parallel proceedings were to continue in Probate Cases, then

it would tantamount to travesty of justice.

 35

J. That the Hon’ble High Court erred and over reached its

jurisdiction under Sec. 482 CrPC, which is an inherent

jurisdiction which should be used sparingly and preposterously

the same was not even applied and an order has been given in

favour of the Respondent No. 1 and against the Petitioner herein

by going into the merits of the Will and the charges framed

against the Petitioner.

K. That vide the impugned judgment the Hon’ble High Court has

erroneously reviewed the order of his predecessor judge who

had directed the Petitioner to approach the Sessions Court vide

an order dated 08.10.2012. The said order dated 08.10.2012

was passed in a petition challenging the order passed by the

Trial Court dismissing the application of the Petitioner u/S 309

CrPC and thereafter a detailed and reasoned order was passed

by the Ld. Sessions Court which upheld the settled law by stating

that the criminal proceedings be stayed and after the findings

of the Probate Court the parties were to argue again on the

point of Charge in the criminal proceedings.

L. That Hon’ble High Court failed to appreciate that the criminal

complaint is deliberately filed with a malafide intention to harass

the Appellant as well as the attesting witness of the Will.

 36

M. That Hon’ble High Court failed to appreciate that the Probate

Case is at the advance stage and parallel trial in criminal court

at this stage would be a futile exercise amounting to wastage of

time especially considering the fact that decision of the Probate

Court being “judgment in rem” would be binding on the criminal

trial court.

6. GROUNDS FOR INTERIM RELIEF:

i) That the Hon’ble High Court erred in not appreciating that
the parties are both senior citizens, the Petitioner being
67 years old, and the Respondent No. 1 being 78 years of
age who have been litigating since the past 20 plus years.
The findings which the Hon’ble High Court arrived at in
the present matter has taken almost about 10 years, on
account of the matter being delayed in the Mediation
Centre for more than 5-6 years and with a report of the
same being “Not Settled”. On account of the impugned
order, the parties have effectively been placed in a
situation as though they have just preferred a fresh
petition. That the Hon’ble High Court, under its inherent
powers, should have considered the long delay and could
have exercised its unfettered powers under Section 482
CrPC to determine the dispute at this stage.
ii) That the Hon’ble High Court failed to appreciate that
permitting the criminal proceedings to continue would be
pre-empting the outcome of the Probate Case.
Hypothetically, if the Probate Case were to allow the case
 37

of the Petitioner and grant him Probate and

simultaneously if the criminal proceedings were to reach
a conclusion that all the offences are made out against the
Petitioner, then which judgment would prevail as both
would be juxtaposed and contrary to each other. That the
general objection in every Probate Case is qua the
genuineness of the Will and allegations of the same being
forged and fabricated. If the parallel proceedings were to
continue in Probate Cases, then it would tantamount to
travesty of justice.

7. MAIN PRAYER:
In the foregoing premises, it is, therefore, most humbly prayed
that this Hon’ble Court may graciously be pleased to :
(a) Grant Special Leave to Appeal Arising out of
Impugned Judgment & Final Order dated 05.12.2023
passed by the Hon’ble High Court of Delhi at New Delhi
in Crl. Misc. 1303/2024 & Crl. M.A. 4416/2014.
(b) Pass such further or other order/orders as this
Hon’ble Court may deem fit and proper in the fact and
circumstances of the case and for the ends of justice.

8. PRAYER FOR INTERIM RELIEF:

The Hon’ble Court may graciously be pleased to :
a. Pass an Order granting stay of the proceedings in

connection with the Case Crime No. 171 of 2006 at

Police Station Chittaranjan Park, New Delhi.

 38

b. Pass such further order/orders as this Hon’ble Court

may deem fit and proper and, in the facts, and

circumstances of the case and for the ends of justice.

AND FOR THIS THE PETITIONER SHALL EVER PRAY

DRAWN BY
Ms.Puja Anand, Advocate
FILED BY :

(ADEEL AHMED)
Advocate for the Petitioners
DRAWN ON:01.07.2024
FILED ON: 10/07/2024
 39

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL) NO. OF 2024
IN IN THE MATTER OF:
Amarnath Ghosh Dastidar ...Petitioner

Versus

Bimalendu Ghosh Dastidar & Ors …Respondents

CERTIFICATE

Certified that the Instant Special Leave Petitions are confined

only to the pleadings before the Hon’ble High Court at Calcutta
whose order is challenged and the other documents relied upon
in those proceedings. No Additional facts, documents or grounds
have been taken therein or relied upon in the Special Leave
Petition. It is further certified that the copies of the documents /
annexure(s) attached to the Special Leave Petitions are
necessary to answer the question of law raised in the petition or
to make out grounds urged in the Special Leave Petition for
consideration of this Hon’ble Court.
This certificate is given on the basis of the instructions
given by the petitioner.
FILED BY :

FILED ON: 10/07/2024 (ADEEL AHMED)

Advocate for the Petitioner
 40

IN TH E SUPREME COURT OF IND

IA
CRIMINAL APPELLATE JURISDICT
ION

SPE CIA L LEAVE PETITION (CRL.)

NO OF 20 24

IN TH E MATTER OF :

AMARNATH GHOSH DASTIDAR

... Petitioner
VERSUS
BIMALENDU GHOSH DASTIDAR &
ORS Re spo nde nt

AFFIDAVIT

I, Am arn ath Gh osh Da stid ar S/o

Late Am uly a Ch and ra
Gh osh , age d abo ut 67 yea rs pre sen
tly R/ o G-1 224 , Fir st
Flo or, Ch itta ran jan Par k, New De
lhi do her eby sol em nly
aff irm and say as follows:

1. Th at I am the Pet itio ner in the Spe

cia l Leave Pet itio n
and am fully con ver san t wit h the fac
ts and cir cum sta nce s of
the pre sen t cas e and am com pet ent
to sw ear thi s affidavit.
2. Th at I hav e gon e thr oug h and un de
rst ~o ~o pte nts
•.- oa\n Comm. 'i::;1
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,, o' \:"'e
of the Spe cia l Leave Pet itio n in Par a 0'lst
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and Syn ops es and Lis t of Da tes at pa I /W~-~~ _\..,.( )1.L') •
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Ap plic atio ns are tru e to my knowle
.. dge and bel ief and on
~Oath~
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Del • High court .....
ui, Period: 15. 7 .2'.)23 to -#
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 41

advice of my counsel. Nothing material has been concealed

by me nor any material is false.

3. That the Annexures are the true and correct copi of

their originals.

DEPONEN T
VERIFICATION

I, the deponent abovenam ed do hereby verify that

averments made in this affidavit are true to my knowledge

and belief. No part of it is false and nothing material has

been concealed therefrom.

D9 JUL 2024
Verified at New Delhi on this Cf day of July, 2024.

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oath comr:
 42

ANNEXURE P/1

DEED OF DEDICATION

Let it be known by all those present and interested that I Amulya

Chandra Ghosh son of late Bilash Chandra Ghosh, am the owner

and resident of Plot No. G-1224, Chittaranjan Park, Delhi-110019

and the 3 roomed house along with kitchen toilets constructed

there on the ground floor. I am living in the house happily with my

family including my second son Mr. Amar Nath Ghosh Dastider

My second son Mr. Amar Nath Ghosh Dastider is financially

sound to raise first floor on my house on plot nо. G-1224,

Chittaranjan Park, so I allow him to erect Ist floor on this house by

his own money for his own use and/or occupation of the same with

separate water and electric connections and Tax assessments in

his own name as the owner of the first floor.

He can neither dispose of the property on first floor nor can

he put it on mortgage, give it on long term lease exceeding three

years or enter into any hire-purchase agreement without the

written consent of his elder brother. Mr. Bimalendu Ghosh Dastidar.

He will have the full right of easement.

 43

I am dedicating this right of construction/ownership in favour

of my second son Mr. Amarnath Ghosh Dastidar exercising my own

volition without undue influence from anybody in this World. I am

hale and hearty, both mentally and physically sound to deal with

my property and other affairs.

I put my signature in this deed on the 7th day of August in

the year one thousand nine hundred and eighty seven.

WITNESSES:

1. R.L. ARORA AMULYA CHANDRA GHOSH

G-1223, CR Park N. Delhi New Delhi 07.08.1987

2. SHWETA RAY

G-1237 A, CR Park

3. GITA GUHA ROY

Block III/86 EROS GARDEN

CHARMWOOD VILLAGE, FARIDABAD

//TRUE COPY//
 44

ANNEXURE P/2

WILL OF PETITIONER

This is the last will and testament of Shri Amulya Chandra

Ghosh son of late Bilash Chandra Ghosh aged 83 yrs, owner and

resident of House No G-1224, Chittaranjan Park, New Delhi,

hereinafter referred to as testator.

Whereas life is uncertain and I am now old so I consider it is

the proper time for me to bequeath my household property by a

will with the terms and conditions stated in the following

paragraphs of the will.

My family includes my wife Mrs. Usha Ghosh Dastidar aged

75 yrs two sons Shri Bimalendu Ghosh Dastidar and Shri Amarnath

Ghosh Dastidar- both qualified Engineers and five daughters (1)

Mrs. Geeta Guha Roy wife of Sh. J. Guha Roy (2) Mrs. Dipty Dutta

wife of Sh. A.K. Dutta (3) Mrs. Tripty Saxena wife of Shri Amrish

Saxena (4) Mrs. Shweta Roy wife of Sh. B.D. Roy and (5) Mrs. Rita

Atorthy wife of Sh S.K. Atorthy.

 45

At first it is stated that the ground floor three roomed house

along with kitchen and toilets constructed on a land measuring 160

sq. yds. was built on my behalf by DDA, I am living in this house

happily with my wife, younger son Amarnath Ghosh Dastidar and

his family. Amarnath is economically sound and so I empowered

him to extend and construct upstairs to create extra space for

comfortable living by his own money and exclusively for his own

use.

All my daughters are married and well settled in their family

life. I arranged their marriage according to my financial status and

best of abilities. My other son Bimalendu Ghosh Dastidar has been

living in the Middle East along with his family over the past 20

years. Of course he is financially very very sound, well placed in

the Middle East, and has acquired considerable property and

residential premises. He or his family needs no further aids or

consideration from me for the rest of their life.

Whereas my son Amarnath Ghosh Dastidar and his family are living

with me at the aforesaid premises and looked after me and my wife

during our old age, he has borne all house hold expenses. He used
 46

to pay regularly the house tax, water/ electric ty charges,

telephone bills etc. He has also financially assisted me to repay the

loan installments and settled full and final dues of DDA, in respect

of the construction of the said house. Moreover, I sought his help

to solve various family problems in day to day family life and he

has always proved himself to be a devoted and faithful son. I am

proud of him.

I therefore, declare that after my death the sole ownership

of the household property on plot No G-1224, Chittaranjan Park

New Delhi, will devolve upon my Son Amarnath Ghosh Dastidar,

and bequeath this property in his favour absolutely to the exclusion

of my daughters, other son and wife, However, my wife shall have

full rights to reside in the said premises till her demise and enjoy

the property according to her free and sweet will. My son Amarnath

shall look after her welfare according to his best abilities. This will

shall be enforceable only after death of myself and my wife and

until I remain alive I will be the sole owner of the said property. My

son Amarnath Ghosh Dastidar, after death of his parents, can get

the property substituted/ mutated in his own name in the records

 47

of the concerned authority on the basis of this will or its certified

true copy.

I declare with my clear conscience that I have made this will

voluntarily, in normal mental and physical health, and free from

any undue influence whatsoever. In witness thereof I have signed

this will on this 10thday of MAY 1996.

WITNESSES:

1) DR PRASHANTA R. CHAKRABORTY
B-234 C.R. PARK TESTATOR:
N.D.-110019

2) RAVI MOHAN ANAND

S/O MAJOR RN ANAND
R/O D-11, VIVEK VIHAR
DELHI

// True copy//
 48

ANNEXURE-P/3
IN THE COURT OF DISTRICT JUDGE DELHI
In ret:- Probate Case No. 90 of 2003
Shri Amar Nath Ghosh Dastidar …. Petitioner
Versus
The State & others ….
Respondents

MEMO OF PARTIES
Shri Amanath Ghosh Dastidar,
S on of Late Sh. Amulya Chandra Ghosh,
R/o H.No. 1224, Chittaranjan Park,
New Delhi. …. Petitioner
Versus

1. The State,
2. Dat. Rita Atorthy,
D/o Late Sh. Amulya Chandra Ghosh,
Ro 92.C, pkt. C, sidharth Extension,
New Delhi-1100 14.
3. Smt. Gita Guha Roy,
D/o Late sh. mulya Chandra Ghosh,
R/o Block III/86, Eros Garden,
Chamrood village, dist. Faridabad-182009, Haryana

4. Smt. Shweta Roy,

D/o Late Sh. Amulya Chandra Ghosh,
R/o Block III/53, Ems Garden,
Charmwod Village, Dist. t. Faridabad-121009, Haryana.

5. Smt. Tripti Saxena

D/o Late Sh. Amulya Chandra Ghosh,
R/o 85.B, Pkt. C, Sidharth Extension,
New Delhi-1100 14,

6. Mrs. Depty Dutta

W/o Shri A.K. Dutta,
D/o Late She Amulya Chai đưa chọ sh,
R/o C/o Ramdual Dutta, P & T Quarters,
PWD Comples, (Near Melar Math), Agartala-799001,
Tripura.
 49

7. Shri B.G. Deptidar,

S/o Late Shri Amulya Chandra Ghosh,
R/o D-281, Namada Apartments,
Alaknanda, New Delhi-19.

…. Respondents

Delhi:

Petitioner

Dated-27/2/2003
Through
Counsel.

IN THE COURT OF DISTRICT JUDGE DELHI.

In re:- Probate Case No. 90 of 2003

In the matter of:-

Shri Amar Nath Ghosh Dastidar,
son of Late Shri Amulya Chandra Ghosh,
resident of House No. 1224, Chittaraja Park,
Naw Delhi..
….Petitioner

Versus

1 The State;
2. Sat. Rita Atorthy,
92.C, Pocket C, Sidharth Ext..
New Delhi-1100 14.

3. Ant. Gita Guha Roy

Block III/66, Eros Garden,
Charmwood Villago, Distt. Faridabad,
Haryana.
4. Sat. Shweta Roy,
Block III/53, Eros Garden,
Charmwood village, Dist. Faridabad-12 1009,
Haryana.
5. Smt. Tripti Saxena,
 50

85-B Pocket-C,
Sidharth Extension, New Delhi-14.
6. Mrs. Dapt y Dutta,
M/o Shri A.K. Ditta,
R/o C/o Randuta Datta,
P&T Quarters, PWD Complex,
(Maar Molar Math), Agartala-799001,
Tripura.
7. shri B.O. Dastidar,
Da-201. Namada Apartments,
Alakanda, New Delhi-110019.
…. Respondents.

Petition under Section 276 of Indian

Succession Act for Probate/Letter of
Administration of the Will dt. 10/5/1996,
Executed by Eate ShriAmulya Chandra Ghosh.

Most Respectfully Showath: -

1. That shri Amulya Chandra Ghosh, son of Late Shri Bilash
Chandra Ghosh, died on 16.12.1996 at his residence G-1224,
Chittarajan Park, New Delhi. The death certificate is attached
herewith. The deceased at the time of his death had his
permanent place of abode at Delhi.

2. That the said Jednased left his estate in Delhi within the
territorial jurisciation of this Hon'ble Court and as such this
Hon'ble Court has jurisdiction to entertain and decide the
present petition.

3. That the deceased has at the time of his death left behind
the petitioner and the respondents no. 3 to 7 as his near
relatives/L.R.s.

4. That the deceaed during his life time made and executed his
WILL on 10/5/1996, which is duly registered with sub
Regisrar-VIII, New Delhi, vide Reg. No. 5156, Book No.3, Vol.
No. 119, Pages 32 to 34, dt. 3.8.2000.
 51

5. That the deceased was the allottee of the poperty bearing

no. G-1224, Chittaranjan Park, New Delhi, which was allotted
to him by the D.D.A.

6. That by virtue of bis aforesaid WILL, the testator, now

deceased, has bequeathed all his rights in aspect of the
aforesaid poperty in favour of the petitioner as sole legatee.

7. That the property rights which are likely to come to hand of

the petitioner as legatee/beneficiary are detailed in annexure
‫י‬a‫ י‬attached herewith.

8. That no similar petition/pods application has earlier benefiled

in any other court of law.

B. That the liabilities ad debts left by the deceased, which are

exempted from duty are given in ANNEXURE ‘B’ attached herewith.

PRAYER:-
It is, therefore, prayed that Probate/Letter of Administration in
respect of the state left by the deceased and mentioned in the
WILL annexed hereto may be granted to the petitioner, in the
interest of justice.
Delhi
Petitioner
(Amarnath Ghosh Dastidar)
Though
( Advocate.)
Verification:-
I, the above named petitioner, do hereby verify that the facts
stated herein above are true to my knowledge. Last para is prayer
to this Hon'ble Court.

Verified at Delhi on this day of February, 2003……….. Petitioner

Verification -
 52

I, Ravi Mohan Anand, son of Major R.N. Anand, resident of D-11,

Vivek Vihar, Delhi, one of the attestee witnesses of the last WILL
and testament dt. 10/5/1996 of the testator, Mr. Amulya Chandra
Ghosh. I declare that I was present and saw the said testator
affixed his signature thereon.
Verified at Delhi on this day of February 2003.
Ravi Mohan Anand
(witness of last will dt. 10/5/1996)

// True copy//
 53

ANNEXURE-P/4
First Information Report
Under Section 154 Cr. P.C.
Serial No. 8 Book No.
18517

1. District South P.S. C. R. Park Year 2006 FIR No. 171/06 Date
25.4.06

2. (i) Act IPC Section 193/467/468/471

(ii) Act Section

(iii) Act Section

(iv) Other Acts & Sections

3. (a) Occurrence of office Day Date from 1996 Date to on

wards

Time Period Time from...

Time to

(b) Information received at P. S. Date 25.04.06 Time-

(c) General Diary Reference: Entry No DDMOITA Time

3:50 PM

4. Type of information Written

5. Place of occurrence:
(a) Direction and distance from PS East North 1/2 km Beat
No. 13

(b) Address G-1224, C.R. Park. New Delhi

(c) In case outside the limit of this Police Station, then

Name of PS District

6. Complainant/Informant
 54

(a) Name Sh. Bimalendu Ghose Dastidar

(b) Father's Name

(c) Date/Year of Birth 7 August 1945 (d) Nationality Indian

(e) Passport No. Date of issue Place of issue

(f) Occupation Retired Engineer

(g) Address G-1224, C.R. Park. New Delhi

(h) Tel. No. 9818475656, 9871037124

1-32/ACP/Delhi/02

7. Details of known/suspected/unknown accused with full

particulars (Attach separate sheet if necessary)

(1)

(2)

8. Reasons for delay in reporting by the complaint/information.

No delay

9. Particulars of properties stolen (attached separate sheet, if

necessary)

10. Total value of property stolen

11 Inqest Report/UD case No, if any

12 FIR contents (attach separate sheet, if required)

24.5.05 To the DCP Economic Officer wing Qutab Institutional

Area,
New Delhi

Sub: Complaint against Sh. Amarnath Ghosh Dastidar

Dear Sir,
 55

The pertinent complaint is again St Ghosh Datidar with

regard to the house property bearing No G-1224, Chittaranjan
Park, New Delhi- 110019.

(1) Briefly the facts of the case are as follows

(A) My father Sh. Amulya Chadra Chosh Dastidar was working as

officer Astt. in D.C.S & D Govt. of India and had a family of 8
persons to look after i.e. his wife a house wife and seven children
(5 daughters and two sons (B) My father retired in 1971 at the time
of his retirement the particulars of his family members were as
follows S. No. Particulars Date of birth (1) Smt. Usha Ghosh
housewife (2) Smt. Gita Guha Roy married 15.11.1943 (3) Sh
Bimalendu Ghosh Dastidar working 7.8.1945 (4) Smt. Dipti Dutta
unmarried student 19.8 1950 (5) Sm Tripti Saxena
unmarried/student 8.12 953 (6) Sweta Roy unmarried/student
2.3.1956 (7) Sh. Amarnath Ghosh Dastidar 15.5.1957 (R) Sent Ris
Atortky unmarried cadent 7.3.1960 (C) is the year 1973 the
property bearing No. G-1224, CR. Park. New Delhi-110019
admeasuring 160 sq, yds was handed over to my father Sh. Amulya
Chandra Dastider by the DDA under the East Pakistan displaced
person (EPDP) scheme hereinafter referred to as said property (D)
At the time of allotment of the said property was working after
graduating in 1967 from the Indian Institute of Technology ITI with
a multi National Company in 1969 and I borne the entire of
construction of the said house and paid the installments along with
interest to the DDA. At that time when the said property was
constructed and handed over to my father the entire expenses
were borne by me and Amarnath Ghosh Dastider was merely a
student studying in school. (E) All the expenses for the education
 56

and all other expenses being hotel, cloths, food etc. of Amarnath
Ghosh Dastidar were borne by me being the only earning member
in the family. (F) Mr. Amarnath Ghosh Destidar never took my
family responsibilities and even after he got job, he never paid any
money to our parents and I used to send money to my father for
the household expenses and some money to my mother (G) 1 was
working in OMAN since 1978 and also arranged a job for Amarnath
Ghosh in the Sultanate of OMAN (H) I had contributed for the
expenses of the marriage of my sister alongwith my father (1)
During his lifetime my father was fed up with the activities of
Amarnath Ghosh Dastidar and used to write about the same to me
and several times requested me to ask him to mend his ways as
Amarnath Ghosh use to constantly threatened, abuse and
misbehave with my father, mother and my sisters. My father also
wrote and warned me that Amarnath Ghosh had illegal deigns to
usurp the said property and all kinds of nuisance and used to abuse
them and misbehave with them and his sisters in order to throw
them out of the said property my mother Smt. Usha Ghosh Dastidar
also wrote several letter to me staring that Amarnath Ghosh
Dastidar use to misbehave and abuse his father himself and his
sisters and also physically beaten his sisters and tried to throw
them out of the house (2) My father Sh. Amulya Chandra Ghosh
Dastidar during his lifetime executed a will and after his death on
16.12.1996 his last will and testamentary disposition dated
7.8.1986 as modified on 31.12.1999 was opened by Ms M Jayshree,
Advocate, G 1269, C. R. Park, New Delhi-110019 on 6.12.1997 in
the presence of all the other legal heirs including Sh. Amarnath
Ghosh Dastidar except Smt. Dipti Dutta who was not in town. As
 57

per the last will Sh. Amulya Chandra Ghosh had bequeathed one
half of his property to his wife Smt. Usha Ghosh Dastidar and the
other one half to me, no objection to the said will was raised by
Mr. Amarnath Ghosh to the said last will and testament of Sh.
Amulya Chandra Ghosh and no will was claimed or propounded by
Amarnath Ghosh (3) During his lifetime my father Sh Amulya
Chandra Ghosh Dastidar had permitted his younger son Sh.
Amarnath Ghosh Dastidar to construct/raise the first floor at the
said house for his use and occupation with separate water and
electric connection however, Sh. Amarnath Ghosh Dastidar was not
permined to sell, alienate create any third party right or dispose off
the first floor so constructed by him without my written consent (4)
Thereafter my mother Smt. Usha Ghosh Dastidar who left for her
heavenly abode on 27.5.1998 vide her last will and testamentary
disposition dated 12.1.1998 duly registered with the office of the
Sub registrar of Assurance V, New Delhi bequeathed all her one
half share in the house property bearing No. G-1224, C. R. Park,
New Delhi-110019 on 23.11.1999 in the presence of all legal heirs
including Mr. Amarnath. No objection was raised to the said will of
mother and no other will was produced or propounded by
Amarnath Ghosh or any other person at any point of time (5) I was
working in the Sultanate of Ornan and visited the country every
year. Since my younger sister namely Smt. Dipti Dutta was staying
in Delhi alongwith her Daughter Ms. Tania Dutta minor for her
education purpose and her request she started residing at the
ground floor of the house, since 1999. I also used to reside in the
same house whenever I visited India Delhi (6) Time and again Sh.
Amarnath Ghosh Dastidar who has not been residing in India and
 58

during his short visits used to stay at B-138, Santa Vihar her father
in laws place as his wife and daughter are staying there since the
time he has been staying abroad he has forcibly and illegally tried
to occupy the ground floor and has threatened his elder sister Mrs.
Dipti Dutta and her daughter of dire consequences like throwing
acid on their face, threatening of killing both of them if they tried
to stop him from occupying the ground floor or if they object to the
same and if they do not vacate the premises. He has even
mishandled and abuse them on several occasions and it was only
on the compliant of Smt. Dipti Dutta the police official from the
local police station visited the premises and protected her and her
daughter life in the property from being illegally occupied by him
and brought the situation under control. Even in March 2003 Mr.
Amanath Ghosh Dastidar broke open the door locks of the ground
floor and tried to forcibly enter and throw my sister Dipti Dutta out
of the property and she again had to dial 100 and call the local
police for help. However, by the time the local police Officer came
to help Mr Amarntath Ghosh Dastidar had fled from the scene. (7)
I was shocked and surprised to hear about the said incident it
further came as a rude shock and surprise when I received
summons from the court of Sh. J. P. Singh, District and Session
Judge, Delhi in probate case titled as Amarnath Ghosh Dastidar Vs.
State & Ors wherein Mr. Amarnath Ghosh Dastidar malafidely has
forced fabricated and created a will dated 10.5.1996 allegedly
made by my late father and on the basis of the same has filed for
probate letter of administration of the same (8) The signature of
the said will are not of my father Late Sh Amulya Chandra Ghosh
Dastidar are forced and fabricated with his admitted signatures on
 59

will dated 7.8.1986 modified on 31.12.1989. The said will was

never propounded by Mr. Amarnath at the time of when the will of
my father was opened by Ms Jayshree on 6.12.1997 and again on
23.11.1999 when the will of my mother late Smt. Usha Ghosh
Dastidar was opened or at any time thereafter. (9) From the bare
look of the will it can be seen that the alleged stamp paper has
been shown to be purchased by my Late Sh. Amulya Chandra
Ghosh from Asaf Ali Road on 7.4.1996 in 1996 my father was 83
years old and was not keeping well. My father who had earlier will
dated 7.8.1996 and its modification on 31.12.1989 was well aware
that for execution of will no stamp paper is required. Further in the
will propounded by Mr. Amarnath Ghosh there is no mention of the
earlier wills execution by my father. The said will has been
registered by Mr. Amarnath on 15.7.2000 after more than three
and half years of death of my father 16.12.1996 and after more
than 4 years of alleged execution the witnesses shown in the said
will have been shown as Dr. Prasant K. Chakraborty and Mr. Ravi
Mohan Anand who are friends of Mr. Amarnath Ghosh. The said
will has been allegedly registered with SR VII, East District Delhi by
Mr. Amarnath Ghosh (10) That on 28.2.05 I filed in application in
the court of district and session judge for stay and Mr. Amarnath
Ghosh was restrained from selling the property and my application
was allowed. (11) I fear the security of my younger sister Smt.
Dipti Dutta and her minor daughter and also for the security of the
property bearing No. G-1224. C. R. Park, New Delhi as Sh.
Amarnath Ghosh Dastidar on the basis of said forged and
fabricated will dated 10.5 1996 is trying to sell or dispose off the
entire property allegedly claiming the property to be his own. (12)
 60

I fear for the security of my younger sister Smt. Dipti Dutta and
her minor daughter and also for my wife, daughter and son who
stay there on visits and for the security of the said property request
your Hon'ble self so protect my sister Smt. Dipti Dutta and her
daughter Me Tania Dutta and my family from any threat to their
life and harassment at the hands of Sh. Amarnath Ghosh Dastidar
and the sell the property from being legally sold/disposed off by
Sh. Amarnath Ghosh Dastidar on the basis of false and fabricated
documents and false will dated 10.5.1996 and to make proper
enquiry into the matter and take necessary action. Thanking you,
yours sincerely Sd/- English 24.5.05 Sh. Bimalendu Ghosh Dastidar,
permanent resident of G-1224, C. R. Park, ND -110019 and also at
W41, 3rd Floor rear G. K. -11, New Delhi present address M
9818475656 M 9871037124 Mr. Dastidar PTO

To the duty officer PS C. R. Park. Dells from the contents of the

compliant and the enquiry conducted prima facie offence U/s
193/467/478/471 IPC are made out. The ruqqua is being sent
through Ct. Veer Singh 364, DRP for registration of the case. You
are requested to registered the case under above mentioned
sections of law and send back the ruqqus alongwith the original
copy of FIR. For further investigation to the undersigned date and
place and occurrence year 1996 onward G-1224, C. R. Park. Date
and time of sending ruqqua 23.4.06 at 3:20 PM ST/- English S1 S.
M. Sharma D 819 PS 16920084 AL Br BOW Crime Branch. Sd/-
proceedings of police at this time was received in writing from SI
S. M. Sharma Crime Branch through Veer Singh C1. 365/DRP at
the police station on which case has been registered and the
 61

original writing alongwith a copy is being sent back to SI S. M.

Sharma through Ct. Veer Singh who will investigate and send
copies to the officer Incharge S1 DO

13. Action taken: Since the above report reveals commission of

offence u/s at mentioned at Item No. 2
(1) Registered the case and took up the investigation or

(2) Directed/entrusted (Name of I0) S. M. Sharma rank SI No. D

819 PIS No. 16920084 to take up the investigation or
(3) Refused investigation due to _________________or
(4) Transferred to PS District
on point of jurisdiction.
F.I.R. read over te the complainant/informant, admitted to be
correctly recorded and a copy given to the complainant/informant
free of cost.
RO.& AC Signature of
Recd. Officer-in-charge/Duty Officer P.Stn.
Name TRIPTI, Rank 5.1. D-2849
PIS No
Sd/-
(Bimalendu Ghosh Dastidar)
26 April 2006

14 Signature/Thumb Impression of the complainant/informant

15 Date and Time of dispatch is the Court By Dak.

//True copy//
 62

ANNEXURE-P/5

CHARGESHEET

District: South Chargesheet No: 1 Date:

06.08.07
Police Station: CR Park First Information Report No: 171/06 Date:
25.04.06

Name, Name Names and Prope Nam Charge or

addres s and addresses of rty e and information-
s and addre accused persons (inclu addr Name and
occupa sses sent for trial ding ess offence and
tion of of In On bail weap of circumstance
compl accus cust or ons) witne s connected
ainant ed ody Recogni found sses with it, in
or perso zance , with concise detail
inform n not partic and under
ation sent ulars what section
up for of of the Law
trial wher charged
wheth e, u/s
er when 420/467/468
arrest and /471/120B
ed or by IPC
not whom
arrest found
ed, and
includi whet
 63

ng her
absco forwa
nders rded
(show Magis
absco trate
nders
in red
ink)
1 2 3 4 5 6 7
Sh. As As Sir,
Bimlen Per Per Briefly The
du Seizur List Facts Of The
Ghosh e Attac Case Are
Dastid Memo hed That Mr.
ar S/o Bimlendu
Sh. Ghosh
Amuly Dastidar
a (Mentioned
Chand In Column
Ghosh No. 1 Of The
Dastid Chargesheet)
ar R/o Filed A
W-41, Complaint
3rd And The
Floor, Contents Of
Rear The
Side, Complaint
Greate Are
 64

r Reproduced
Kailash Below:
– II, “To, The
New DCP,
Delhi - Economic
48 Offences
Wing, Qutab
Institutional
Area, New
Delhi…..
SUB: -
Complaint
against Sh.
Amarnath
Ghosh
Dastidar…..D
ear Sir, the
present
complaint is
aginst Sh.
Amarnath
Ghosh
Dastidar with
regard to the
house
property
bearing no.
G-1224,
 65

Chittaranjan
Park, New
Delhi 110019

(1) Briefly the facts of the case are as follows: (a) My father Sh.
Amulya Chandra Ghosh Dastidar was working as Office Asstt. In
DGS&D, Govt. of India and had a family of 8 persons to lookafter
ie. his wife (a housewife) and 7 children (5 daughters and two
sons). (b) My father retired in 1971. At the time of his retirement
the particulars of his fa members were as follows:
S. Particulars Date of Birth
No
1 Smt. Usha Ghosh Housewife
2 Smt. Gita Guha Roy Married 15.11.43
3 Sh. Bimlendu Ghosh Working 7.8.45
Dastidar
4 Smt. Dipti Dutta Unmarried/Student 19.8.50
5 Smt. Tripti Saxena Unmarried/Student 8.12.53
6 Smt. Sweta Ray Unmarried/Student 22 3.56
7 Sh. Amarnath Ghosh Student 15.5.57
Dastidar
8 Smt. Rita Atorthy Unmarried/Student 7.3.60

8. (c) In the year 1973 the property bearing No. G-1224,

Chittaranjan Park. New Delhi-110 019 ad-measuring 160 sq. yds.
was handed over to my father Sh. Amulya Chandra Ghosh Dastidar
 66

by the D.D.A. under the East Pakistani Displaced Persons (E.P.D.P)

scheme (hereinafter referred to as the "said property"). (d) At the
time of allotment of the said property I was working, after
graduating in 1967 from the Indian Institute of Technology (I.I.T)
with a Multi-National Company since 1969 and I bore the entire
costs of construction of the said house and paid the installments
alongwith interest to the DDA. At that time when the said property
was constructed and handed over to my father the entire expenses
were borne by me and Amarnath Ghosh Dastidar was merely a
student studying in school. (e) All the expenses for the education
and all other expenses being hostel, clothes, food etc. of Amarnath
Ghosh Dastidar were borne by me being the only earning member
in the family. (f) Mr. Amarnath Ghosh never took any family
responsibilities and even after he got job he never paid any money
to our parents and I used to send money to my father for the
household expenses and some money to my mother. (g) I was
working in Oman since 1978 and also arranged a job for Amarnath
Ghosh in the Sultanate of Oman. (h) I had contributed for the
expenses of the marriage of my sisters alongwith my father. (1)
During his lifetime my father was fed-up with the activities of
Amarnath Ghosh and used to write about the same to me and
several times requested me to ask him to mend his ways as
Amarnath Ghosh used to constantly threaten, abuse and
misbehave with my father, mother and my sisters. My father also
wrote and warned me that Amarnath Ghosh had illegal designs to
usurp the said property and was creating all kinds of nuisances and
used to abuse them and misbehave with them and his sisters in
order to throw them out of the said property. My mother Smt. Usha
 67

Ghosh Dastidar also wrote several letters to me stating that

Amarnath Ghosh used to misbehave and abuse his father, herself
and his sisters and had also physically beaten his sisters and tried
to throw them out of the house. (2) My father Sh. Amulya Chandra
Ghosh Dastidar during his lifetime executed a will and after his
death on 16.12.1996 his last will and testamentary disposition dt.
7.8.1986 as modified on 31.12.1989 was opened by Ms. M.
Jayashree, Advocate, G-1269, C.R.Park, New Delhi- 110019 on
6.12.1997 in the presence of all the above legal heirs including Sh.
Amarnath Ghosh Dastidar except Smt. Dipti Dutta who was not in
town. As per his last will Sh. Amulya Chandra Ghosh Dastidar had
bequeathed one-half of his property to his wife Smt. Usha Ghosh
Dastidar and the other one-half to me. No objection to the said will
was raised by Mr Amarnath Ghosh to the said last will and
testament of Sh. Amulya Chandra Ghosh and no will was claimed
or propounded by Amarnath Ghosh (3) During his lifetime my
father Sh. Amulya Chandra Ghosh Dastidar had permitted his
younger son Sh. Amarnath Ghosh Dastidar to construct/raise the
first floor on the said house for his use and occupation with
separate water and electricity connection. However, Sh. Amarnath
Ghosh Dastidar was not permitted to sell, alienate, create any third
party rights or dispose off the first floor so constructed by him
without my written consent (4) Thereafter my mother Smt. Usha
Ghosh Dastidar, who left for her heavenly abode on 27.5.1998,
vide her last will and testamentary disposition dt. 12.1.1998, duly
registered with the office of the Sub-Registrar of Assurances-V.
New Delhi, bequeathed all her one-half share in the house property
bearing No. G-1224, C.R. Park, New Delhi- 110019 in my favour.
 68

The said will was also opened by Ms. M. Jayashree, Advocate, G-

1269, CR. Park, New Delhi-110019 on 23.11.1999 in the presence
of all legal heirs including Mr. Amarnath. No objection was raised
to the said will of mother and no other will was produced or
propounded by Amarnath Ghosh or any other person at any point
of time. (5) I was working in the Sultanate of Oman and visited the
country every year. Since my younger sister namely Smt. Dipti
Dutta was staying in Delhi alongwith her daughter Ms. Tania Dutta
(minor), for her education purposes, and on her request she
started residing on the ground floor of the house since 1999 I also
used to reside in the same house whenever I visited India (Delhi).
(6) Time and again Sh. Amarnath Ghosh Dastidar, who has not
been residing in India and during his short visits he used to stay at
B-138, Sarıta Vihar, his father-in-laws place as his wife and
daughter are staying there since the time he has been staying
abroad. He has forcibly and illegally tried to occupy the Ground
Floor and has threatened his elder sister Ms. Dipti Dutta and her
daughter of dire consequences like throwing acid on their face and
threatening of killing both of them if they tried to stop him from
occupying the ground floor or if they object to the same and if they
do not vacate the premises. He has even manhandled and abused
them on several occasions and it was only on the complaint of Smt.
Dipti Dutta the police official from the local police station has visited
the premises and protected her and her daughter’s life and the
property from being illegally occupied by him and brought the
situation under control. Even in March, 2003, Mr. Amarnath Ghosh
Dastidar broke open the door locks of the ground floor and tried to
forcibly enter and throw my sister Smt. Dipti Dutta out of the
 69

property and she again had to dial 100 and call the local police for
help. However, by the time the local police officer came to help Sh.
Amarnath Ghosh Dastidar had fled from the scene. (7) I was
shocked and surprised to hear about the said incidents. It further
came as a rude shock and surprise when I received summons from
the court of Sh. J.P. Singh, District & Sessions Judge. Delhi in
probate case titled as "AMARNATH GHOSH DASTIDAR V/s STATE
& Ors." wherein Mr. Amarnath Ghosh Dastidar malafidely has
forged, fabricated and created a will dt. 10.5.1996 allegedly made
by my late father and on the basis of the same has filed for
probate/letter of Administration of the same. (8) The signatures on
the said will are not of my father Late Sh. Amulya Chandra Ghosh
Dastidar and are forged and fabricated and can be compared with
his admitted signatures on will dt. 7.8.1986 modified on
31.12.1989. The said will was never propounded by Mr. Amarnath
at the time when the will of my father was opened by Ms. Jayashree
on 6.12.1997 and again on 23.11.1999 when the will of my mother
Late Smt. Usha Ghosh Dastidar was opened or at anytime
thereafter. (9) From the bare look of the will it can be seen that
the alleged stamp paper has been shown to be purchased by my
father Late Sh. Amulya Chandra Ghosh from Asaf Ali made on
1.4.1996. In 1996 my father was 83 yrs old and was not keeping
well. My father who had earlier executed a will dt. 7.8.1986 and its
modification on 31.12.1989 was well aware that for execution of
will no stamp paper is required. Further in the will propounded by
Mr. Amarnath there is no mention of the earlier wills executed by
my father. The said will has been registered by Mr. Amarnath on
15.7.2000 after more than 3 & 1/2 years of death of my father on
 70

16.12.1996 and after more than 4 years of alleged execution. The

witnesses shown in the said will have been shown as Dr. Prashanta
K. Chakraborty and Mr. Ravi Mohan Anand who are friends of
Amarnath Ghosh. The said will has been allegedly registered with
SR-VII, East Distt. Delhi by Mr. Amarnath. (10) That on 28.2.2005,
I filed an application in the Court of District & Sessions Judge for
stay and Mr. Amarnath Ghosh was restrained from selling the
property and my application was allowed. (11) I fear for the
security of my younger sister Smt. Dipti Dutta and her minor
daughter and also for the security of the property bearing No. G-
1224, C.R. Park, New Delhi as Sh. Amarnath Ghosh Dastidar on the
basis of the said forged and fabricated will dt. 10.5.1996 is trying
to sell/dispose off the entire property allegedly claiming the
property to be his own. (12) I fear for the security of my younger
sister Ms. Dipti Dutta and her daughter and also for my wife,
daughter and son who stay there on visits and for the security of
the said property request your Hon'ble Self to protect my sister
Smt. Dipti Dutta and her daughter Ms. Tania Dutta and my family
from any threat to their lives and harassment at the hands of Sh.
Amarnath Ghosh Dastidar and to save the property from being
illegally sold/disposed off by Sh. Amarnath Ghosh Dastidar on the
basis of false and fabricated documents and false will dt: 10.5.1996
and to make proper enquiry about the same and take necessary
action. Thanking you. Yours sincerely, Sd/- (English) Bimlendu
Ghosh Dastidar."

On the above complaint an endorsement was made by SI S.M.

Sharma, which has been reproduced as under "To, The Duty
 71

Officer, PS C.R. Park, Delhi. From the contents of the complaint

and enquiry conducted, prima facie offences u/s 193/467/468/471
IPC are made out. The rukka is being sent through Ct. Veer Singh
No. 365/DRP for registration of the case. You are requested to
register the case under above mentioned sections of law and send
back the rukka alongwith the original copy of FIR for further
investigation to the undersigned. DATE & PLACE OF OCCURRENCE:
Year 1996 onwards.....G-1224, C.R. Park, Delhi and DATE & TIME
OF SENDING RUKKA: 25.4.06 at 3:20 PM. Sd/- (English) SI
Shachinder Mohan Sharma, No. D-819, PIS No. 16920084, LBR
Section, EOW, Crime Branch, New Delhi."

During investigation of the case IO, SI S.M. Sharma examined the

complainant afresh and recorded the statements of sisters of the
accused/complainant (as both are real brothers). All the sisters
supported the version of the complainant Sh. Bimlendu Ghosh
Dastidar and opposed their other brother i.e. accused Amarnath
Ghosh Dastidar. All the sisters stated that their father had never
executed a Will in favour of Amarnath Ghosh Dastidar separately
as per their knowledge. As whole of the controversy was created
by the WILL dt. 10.5.96 purportedly executed by sh. Amulya
Chandra Ghosh Dastidar (father of complainant and accused) in
favour of Amarnath Ghosh Dastidar and after the death of Sh.
Amulya Chandra Ghosh Dastidar on 16.12.96 that WILL was got
registered by Amamath Ghosh Dastidar with the office of Sub-
Registrar (VIII), Geeta Colony, Delhi. As the Will was witnessed by
Dr. Prashant Chakraborty and Ravi Anand, so Sub-Registrar, Geeta
Colony as per the procedure recorded their statements in “Will after
 72

death" cases. The Will was finally got registered vide No. 5156,
Addl. Book No. III, Volume No. 119 on pages 32 to 34 dt. 3.8.2K.
As per the documents received from the office of Sub-Registrar
(Geeta Colony), this Will was presented on 31.1.2K vide receipt No.
1422 by Amarnath Ghosh Dastidar alongwith photocopy of death
certificate of father Sh. Amulya Chandra Ghosh Dastidar with a
request for the registration of the same i.e. Will after death u/s 93
Registration Act.

From the scrutiny of the documents received during investigation,

it is observed that Sh. Amulya Chandra Ghosh Dastidar (father)
during his lifetime executed a Will dt. 7.8.86 in which he specifically
mentioned that"........... The cost of construction on the property
G- 1224, C.R. Park, Delhi alongwith interest has been borne by my
elder son Bimlendu Ghosh Dastidar. In view of these circumstances
after my demise the half ownership of the house would devolve
upon my elder son Bimlendu Ghosh Dastidar and the remaining
half on my beloved wife Mrs. Usha Ghosh. In the event of her
predeceasing me, the half ownerslup given to her under this Will
shall devolve upon all the 7 of her children. .... empower my
younger son Amarnath Ghosh Dastidar toto is economically sound,
to raise the first floor on my house No. G- 1224, Chittaranjan Park
without affecting the ground floor, exclusively for his own use and
occupation at his own cost with separate water and electricity
connection and tax assessment in his own name. he will be the sole
owner of the first floor of this house........" and thereafter in his
Will Part II Sh. Amulya Chandra Ghosh Dastidar further mentioned
"Further to my Will dated Seventh August Nineteen Hundred eighty
 73

six regarding my residential house at G- 1224, C.R. Park, New

Delhi-110019 (ground floor) it is desired that after the death of
myself and my wife, the rear bed room winch has an attached toilet
will be maintained as a memorial but can be used by my elder son,
Mr. Bimalendu Ghosh Dastidar whenever required and also by my
daughters on short visits. Taking into consideration all the family
circumstances, I am signing this Will with an open and sound mind.
This part of the Will also shall be executed by Mr. Bimalendu Ghosh
Dastidar as in the case of first part in the Will............"

Smt. Usha Ghosh Dastidar (mother) in her lifetime also executed a

Will dt. 12.1.98 stating therein that ".......... empower my elder son
Mr. Bimlendu ghosh Dastidar to raise the 2nd Floor and above on
my house No. G-1224. Chittaranjan Park, New Delhi-110019 for his
own use and occupation at his own cost........” She also mentioned
that "...........My eldest son has done major contribution to the
family for more than 30 years. Hence I hereby bequeath my entire
rights over the property at G-1224, Chittaranjan Park, New Delhi-
110019 described in Schedule herebelow, exclusively in favour of
my first son Mr. Bimalendu Ghosh Dastidar ……” Thus she declared
the elder son Sh. Bimlendu Ghosh Dastidar as executor of her Will.

Mrs. M. Jayashree, Advocate residing in the vicinity of the property

in question opened the Will of Late Sh. Amulya Chandra Ghosh
Dastidar on 6.12.97 and she gave a copy of the Will to all the
children of Sh. Amulya Chandra Ghosh Dastidar. Accused Amarnath
Ghosh Dastidar was also present when the Will was opened, but
he did not raise any objection to the Will of his father. He didn't
 74

inform about existence of any other Will of his father, which creates
strong suspicion about the authenticity of that Will purportedly
executed by Sh. Amulya Chandra Ghosh Dastidar in favour of
accused Amarnath Ghosh Dastidar. In this regard Mrs. M.
Jayashree, Advocate has also been examined, who purported that
the Will executed by Amulya Chandra Ghosh Dastidar was opened
by her and she issued a certificate in this regard. She also prepared
the Will of Mrs. Usha Ghosh Dastidar (mother). That Will was also
opened on 23.11.99 by her in the presence of both the sons of Mrs.
Usha Ghosh Dastidar, but 2nd time also the accused Amarnath
Ghosh Dastidar neither raised any objection nor informed about
existence of any other Will by his father or mother.

This Will dt. 10.5.96 purportedly executed by Amulya Chandra

Ghosh Dastidar in favour of Amarnath Ghosh Dastidar in original
was received from the court of Ms. Bimla Maken, Ld. ASJ by the
orders dt. 14.2.06 of Ld. DJ, Sh. S.N. Dhingra. The same was
referred to GEQD/Shimla for analysis. Both the complainant and
accused submitted some documents bearing the signatures of their
father Sh. Amulya Chandra Ghosh Dastidar and complainant gave
specimen signatures claiming to be of Sh. Amulya Chandra Ghosh
Dastidar and he supplied documents with 12 signatures claiming to
be of his father Sh. Amulya Chandra Ghosh Dastidar. Efforts were
made to get the information about the Govt. offices etc. where the
admitted signatures of his father could be found and finally Asstt.
Assessor & Collector, Lajpat Nagar was requested to provide some
documents and he supplied two documents bearing the admitted
signatures of Sh. Amulya Chandra Ghosh Dastidar.
 75

Thus 20 claimed signatures received from the complainant and the

accused alongwith two admitted signatures were referred to
GEQD/Shimla to be compared with the questioned signatures (Q1
to Q3) on the Will dt. 10.5.96 in question and result received
reveals that the WILL bears the forged signatures of Sh. Amulya
Chandra Ghosh Dastidar as none of the 22 signatures matched with
those on the Will.

Original documents received from MCD were returned to MCD with

proper receipt dt. 18.4.06 and 9.10.06. Similarly original Will which
is a part of probate case No. 90/03 was also returned to the court
on 19.4.06 with proper receipt. Also in the court of Ld. DJ, Delhi,
while resubmitting the original Will, one more application was also
filed in the court of Ms. Bimla Maken, Ld. ASJ on 4.5.06 with the
request not to release the Will and the same be kept in safe
custody, so that the same be produced before the court during
trial.

Tarun Malhotra, Stamp Vendor was examined, who confirmed

selling the stamp paper of Rs. 2/ on which the Will has been
executed in favour of Amulya Chandra Ghosh Dastidar on 1.4.96.

Correspondence was also made with Collector of Stamps to know

the details of the person who purchased the stamp papers of Rs.
2/- from stamp vendor Tarun Malhotra. But as per the reply of
Collector of Stamps the pages of sale register are not available for
the period 29.11.95 to 9.2.98.
 76

Correspondence was also made with Registrar, Birth & Death to

know the date of death and genuineness of the death certificate of
Sh. Amulya Chandra Ghosh Dastidar and the reply of Registrar,
Birth & Death confirms that Sh. Amulya Chandra Ghosh Dastidar
on 16.12.96.

Further correspondence was also made with the office of L&DO

and a reply from Dy. Land & Development Officer reveals that
accused Amarnath Ghosh Dastidar gave the intimation to their
office regarding the death of his father Sh. Amulya Chandra Ghosh
Dastidar and delivered the death certificate and Will dt. 10.5.96 in
his favour, this way he tried to mislead the Government authorities
by producing, the forged Will.

Further the scrutiny of documents received from L&DO reveals that

on 6.7.74 a lease deed was executed by President of India through
Under Secretary, Deptt. of Rehabilitation, New Delhi, in favour of
Sh. Amulya Chandra Ghosh Dastidar pertaining to plot measuring
160 sq. yds. bearing No. G-1224, C.R. Park, Delhi, in EPDP Scheme.
This plot was registered vide No. 5317, book no. 1, volume No.
3423 on pages 49-52 dt. 2.11.74.

The witnesses appearing on the Will in question and Dr. Prashant

Chakraborty and Ravi Anand were also interrogated at length. But
they did not support the investigation. It appears that due to their
acquaintance/closeness with the accused Amarnath Ghosh
Dastidar they helped him. Though they are not the beneficiary, but
 77

considering that they helped the accused by signing as witness on

the forged Will to give it a genuine look, their names have been
kept in column no. 4 of the chargesheet on recognizance.

Accused Amarnath Ghosh Dastidar was granted anticipatory bail on

24.7.06 by Hon'ble Delhi High Court. As such the accused was
arrested formally in the present case on 21.3.07 and released as
per the directions of Hon'ble Delhi High Court.

Thus from the investigation conducted till date, it is clear that

though the father of the accused adopted every possible step for
the good of his children, but extra lust made accused Amarnath
Ghosh Dastidar to fabricate another Will bearing forged signatures
of his father. This forged Will bequeaths the sole ownership of the
household property on plot No. G-1224, C.R. Park, New Delhi in
favour of the accused to the exclusion of daughters, other son i.e.
the complainant Sh. Bimlendu Ghosh Dastidar and wife. The Will
dt. 10.5.96 purportedly executed by Sh. Amulya Chandra Ghosh
Dastidar bears the forged signatures and accused Amarnath Ghosh
Dastidar got the same registered with the office of Sub-Registrar
(VIII), Geeta Colony after the death of his father, though the Sub-
Registrar office is also operating in Mehrauli pertaining to the
matters of South Delhi. That Will has been proved forged by the
GEQD.

From the above it is evident that accused Amarnath Ghosh Dastidar

hatched a plan to grab the property in question though there were
already two Wills executed by father and mother of
 78

accused/complainant. The accused produced the same Will in the

court of Sessions to get the same probated and that probate case
is pending in the court of Ld. ASJ, knowing fully well about the
nature/genuineness of the Will. Thus he misrepresented the court
also, as Will has been used by the court in the judicial proceedings.
The accused have also caused a great mental agony and pecuniary
loss to the complainant, who had to strive very hard to avoid the
wrongful/damaging Consequences of the forged Will got registered
by the accused. This way accused Amarnath Ghosh Dastidar had
committed offences punishable u/s 420/467/468/471/120B IPC.
Accused Amarnath Ghosh Dastidar is on anticipatory bail. There are
sufficient evidence on case records to challan accused Amarnath
Ghosh Dastidar and his associates Dr. Prashant Chakraborty and
Ravi Anand. Accordingly, the chargesheet has been prepared. Trial
of the case may kindly be commenced upon by calling accused
through notices and witnesses through summons.
Submitted please.
ACP/ALBR 6.8.07
Forwarded for trial. INSPECTOR: LBR SECTION
EOW: CRIME BRANCH

Fowarded for trial.

Ld.M.M/Patiala House Courts
 79

FIR NO. 171 DT. 25.4.06 U/S 420/467/468/471/1208 IPC PS C.R.

PARK, NEW DELHI

LIST OF ACCUSED PERSONS (COL. NO. 4)

1. Amarnath Ghosh Dastidar S/o Sh. Amulya Chand Ghosh Dastidar

R/o B-138, Sarita Vihar, New Delhi and also at G-1224, C.R. Park,
New Delhi (on anticipatory bail)

2. Dr. Prashant K. Chakraborty S/o Late Sh. P.C. Chakraborty R/o

B-234, C.R. Park, New Delhi (on recognizance)

3. Ravi Mohan Anand S/o Major (Retd.) R.N. Anand R/o D-11, Vivek
Vihar, New Delhi (on recognizance)

(sign)6/8/07
INSPECTOR: LBR SECTION
EOW: CRIME BRANCH
FIR NO. 171 DT 25.4.06 U/S420/467/468/471/1208 IPC PS CR.
PARK, NEW DELHI

LIST OF DOCUMENTS

SN Particulars of Documents Total

Pages
1. Challan
2. Original complaint along with documents
3. Copy of FIR
 80

4. Letter to Sub-Registrar, Mehrauli alongwith documents

5. Reply vide No. F/SR-VIII/East/2006/72 dt. 4.5.06 of Sub-
Registrar (East), Geeta Colony alongwith documents
6. Letters vide No. 1092/R.ACP/LBR/EOW, Crime Branch dt.
9.5.06, 1564/R.ACP/LBR/EOW, Crime Branch dt. 20.6.06 and No.
2020/R.ACP/LBR/EOW, Crime Branch dt. 17.8.06 to L&DO, Nirman
Bhawan Delhi alongwith reply therefrom under the signatures of
Sh. A. Bhattarcharya, Dy. L&DO vide No. L&DO/PS II/1137 dt.
15.9.06
7. Letter to Collector of Stamps vide No. 1091/R.ACP/LBR/EOW,
Crime Branch dt. 9.5.06 and 1883/R.ACP/LBR/EOW, Crime Branch
dt. 21.7.06 alongwith reply therefrom vide no.
F.21/1(1)/Stamps/COS (HQ)/06/247 dt. 14.9.06
8. Letter vide No. 2019/R.ACP/LBR/EOW, Crime Branch dt.
17.8.06 and 2063/R.ACP/LBR/EOW, Crime Branch dt. 22.8.06 to
Registrar, Birth & Death, Lajpat Nagar, Delhi alongwith reply vide
No. 811/DHO/CLZ dt. 29.8.06
9 Forwarding letter to GEQD/Shimla vide No. 60/R.ACP/LBR/EOW,
Crime Branch dt. 16.2.06 and 122/R.ACP/LBR/EOW, Crime Branch
dt. 16.3.06 alongwith opinion received vide No. CX-75/06 dt.
22.3.06 and exhibits in original
10. Letter from accused Amarnath Ghosh Dastidar regarding
delivery of documents dt. 16.3.06
11. Letter from complainant Bimlendu Ghosh Dastidar regarding
delivery of documents dt. 9.3.06
12. Letter No. 1823/R.ACP/LBR/EOW, Crime Branch dt. 5.12.05 to
Asstt. Assessor & Collector, MCD, Lajpat Nagar, New Delhi
 81

SN Particulars of Documents
13 Acknowledgement dt. 18.4.06 by Narender Singh on letter No.
958/R.ACP/LBR/EOW, Crime Branch dt. 17.4.06 to Asstt. Assessor
& Collector, MCD, Lajpat Nagar, New Delhi (return of the original
documents)
14. Acknowledgement dt 9.10.06 by Ms. R. Puri on letter No.
2498/R.ACP/LBR/EOW, Crime Branch dt. 29.9.06 to Asstt. Assessor
& Collector, MCD, Lajpat Nagar, New Delhi (return of the original
documents)
15. Request to Ld DJ, Delhi alongwith the copy of order dt. 14.2.06
for release of the Will in question
16. Receipt dt. 19.4.06 by Shankar Shambhu, Asstt. Ahlmed of the
original Will in the court of Ld. DJ, Delhi
17. Request to Ms. Bimla Maken, Ld. ASJ for not releasing the
document/Will in question and received in the court on 4.5.06
18. Bail/Personal Bond
19. Arrest memo
20. Conviction slip
21. Photocopies of statements u/s 161 Cr.P.C

INSPECTOR: LBR SECTION

EOW CRIME BRANCH
//True copy//
 82

ANNEXURE-P/6

T.R. NEHRA, M.Sc., C. Fr. Sc.

Forensic Document Consultant
Recipient of National Award for International Recognition
Former Head (documents Division)
Central Forenso science Laboratory, C.B.L. New Delhi
35, Palika Vihar, Willingdon Crescent Near Teen Murti Traffic Police
Lines, New Delhi-110 011
E-mail: tilaknehra@hotmail.com Tel.: 23013013, Mobile:
9810360615
BIO-DATA
1. Passed M. Sc in Chemistry securing 1st Division from Jabalpur
University In the year 1967.
2. Also passed one year Certificate Course in Forensic Science
from Delhi, University.
3. Worked in the Document Division of the Central Forensic Science
Laboratory, Central Bureau of Investigation, New Delhi for more
than 35 years on various capacitles w.e.f. 15.6.1968 till
31.12.2003.
4 Worked as Head of Questioned Documents Division of Central
Forensic Science Laboratory, New Delhi w.e.f. 1990 till 31.12.2003
5. Received extensive training in all aspects of questioned
documents examination both in India and Abroad.

6. Since 1971 remained engaged in furnishing of expert opinion on

various questioned document problems Independently and till date
 83

have furnished Independent expert opinion in thousands of cases

Involving a very large number of documents.. Some of the
Important cases in which I funished expert opinion are as follows:
(i) Bihar Govt, Flood Relief Case
(ii) Taj Corridor Case
(iii) Shri Allt Jogl, Ex-CM of Chattisgarh-Letter forgery case
(iv) Shri T.R.Prasad, Cabinet Secretary-Nole sheet forgery case
(v) Ex-CM Punjab, S. Beant Singh Assassination Case
(vi) Harshad Mehta Bank Scam Case (vii) Supreme Court Forged
release order case
(vili) St. Kitts Forgery Case
(lx)Multi Crores, JMM Members Bribery case
(x) Large number of murder cases / suicide cases
(xi) Cases referred by Interpol, etc.
7. Since early 2004, I started working as Inclependent Forensic
Document Consultant and on this capacity till date furnished expert
opinions in about 200 different cases received both from the
Government agencies as well as from Private companies /
Individuals. Recently I furnished Expert Opinion on documents
relating to Bihar Flood Relief Case referred by Income Tax Office,
Patna.
8. Appeared as an expert witness before a large number of Courts.
Departmental Inquiries, Court Martial throughout Indla and one
Court at Germany. Many Courts appreciated the expert opinions
fumished by me

Expert opinion on Questioned Signatures, Writings. Type Writings,

Forgery Detection. Age of Documents, Finger Prints elc.
 84

309.
1996. Also chaired many Scientific Sessions of the various National
and International Conferences held in India.
13. Teaching for the last more than 35 years I have been delivering
lectures/ talks to the various Training Institutes/Universities such
as:-
(1) CBI Academy, Ghaziabad
(il) Delhi Police Training College, New Delhi
(iii) National Institute of Criminology & Forensic Science, New Delhi

(iv) Department of Anthropology, Delhi University

(۸) Department of Forensic Science, Punjabi University, Patiala

(vi) Central Vigilance Commission (vii) BHEL Training Courses

viil) Northem India Banking Staff Training College, Nolda

( (ix) Amity University, Ngw Delhi

(x) NPA, Hydrabad, Banks etc.

(xi) Also participated on live TV and Radio programmes.

13. Member of the High Power Committees:

(1) Remained Active Member of various Committees of Bureau of

Indian Standards (Earlier known as ISI) on Ink and paper
specifications

(II) Remained Active Member of High powered Committee for

suggesting methods for production of forgery proof passport and
visas constituted by Ministry of External Affairs, Government of
India
 85

(lii) Member of organising Committee of intemational Conference

on Forensic Documents held at Bangalore during, Jan 20-22, 1998,
nominated by Chlef Forensic Scientist, BPR&D, MHA, Government
of India, New Delhi
(iv) Chalred Scientific Session in the All India forensic Science
Conference held at Karnal in the month of January 2004. Also
appointed as Advisor, UPSC for the selection of scientific posts.
14. As NABL Technical Assessor
I am the certified Technical Assessor of National Accreditation
Board of Laboratories of Ministry of Science and Technology, Govt
of India, New
Delhi and was appointed to accredit the following Govt.
Laboratories:-
1. Govt. Examiner of Questioned Documents, Ministry of Home
Affairs, Govt. of Indla, SIMLA.
2. State Forensic Science Laboratory, Govt. of Haryana, Madhuban,
Karnal,1996. Also chaired many Scientific Sessions of the various
National and International Conferences held in India.

13. Teaching for the last more than 35 years I have been delivering
lectures/ talks to the various Training Institutes/Universities such
as:-

(1) CBI Academy, Ghaziabad

(il) Delhi Police Training College, New Delhi

(iii) National Institute of Criminology & Forensic Science, New Delhi

(iv) Department of Anthropology, Delhi University

 86

(۸) Department of Forensic Science, Punjabi University, Patiala

(vi) Central Vigilance Commission (vii) BHEL Training Courses

viil) Northem India Banking Staff Training College, Nolda

( (ix) Amity University, Ngw Delhi

(x) NPA, Hydrabad, Banks etc.

(xi) Also participated on live TV and Radio programmes.

13. Member of the High Power Committees:

(1) Remained Active Member of various Committees of Bureau of

Indian Standards (Earlier known as ISI) on Ink and paper
specifications
(II) Remained Active Member of High powered Committee for
suggesting methods for production of forgery proof passport and
visas constituted by Ministry of External Affairs, Government of
India.
(lii) Member of organising Committee of intemational Conference
on Forensic Documents held at Bangalore during, Jan 20-22, 1998,
nominated by Chlef Forensic Scientist, BPR&D, MHA, Government
of India, New Delhi
(iv) Chalred Scientific Session in the All India forensic Science
Conference held at Karnal in the month of January 2004. Also
appointed as Advisor, UPSC for the selection of scientific posts.

14. As NABL Technical Assessor

I am the certified Technical Assessor of National Accreditation
Board of Laboratories of Ministry of Science and Technology, Govt
 87

of India, New Delhi and was appointed to accredit the following

Govt. Laboratories:-
1. Govt. Examiner of Questioned Documents, Ministry of Home
Affairs, Govt. of Indla, SIMLA.
2. State Forensic Science Laboratory, Govt. of Haryana, Madhuban,
Karnal, 1996. Also chaired many Scientific Sessions of the various
National and International Conferences held in India.

13. Teaching for the last more than 35 years I have been delivering
lectures/ talks to the various Training Institutes/Universities such
as:-

(1) CBI Academy, Ghaziabad

(il) Delhi Police Training College, New Delhi

(iii) National Institute of Criminology & Forensic Science, New Delhi

(iv) Department of Anthropology, Delhi University

(۸) Department of Forensic Science, Punjabi University, Patiala

(vi) Central Vigilance Commission (vii) BHEL Training Courses

viil) Northem India Banking Staff Training College, Nolda

( (ix) Amity University, Ngw Delhi

(x) NPA, Hydrabad, Banks etc.

(xi) Also participated on live TV and Radio programmes.

13. Member of the High Power Committees:

 88

(1) Remained Active Member of various Committees of Bureau of

Indian Standards (Earlier known as ISI) on Ink and paper
specifications
(II) Remained Active Member of High powered Committee for
suggesting methods for production of forgery proof passport and
visas constituted by Ministry of External Affairs, Government of
India.
(lii) Member of organising Committee of intemational Conference
on Forensic Documents held at Bangalore during, Jan 20-22, 1998,
nominated by Chlef Forensic Scientist, BPR&D, MHA, Government
of India, New Delhi
(iv) Chalred Scientific Session in the All India forensic Science
Conference held at Karnal in the month of January 2004. Also
appointed as Advisor, UPSC for the selection of scientific posts.
14. As NABL Technical Assessor
I am the certified Technical Assessor of National Accreditation
Board of Laboratories of Ministry of Science and Technology, Govt
of India, New Delhi and was appointed to accredit the following
Govt. Laboratories:-

1. Govt. Examiner of Questioned Documents, Ministry of Home

Affairs, Govt. of Indla, SIMLA.
2. State Forensic Science Laboratory, Govt. of Haryana, Madhuban,
Karnal,

いぐ
 89

1996. Also chaired many Scientific Sessions of the various National

and International Conferences held in India.

13. Teaching for the last more than 35 years I have been delivering
lectures/ talks to the various Training Institutes/Universities such
as:-

(1) CBI Academy, Ghaziabad

(il) Delhi Police Training College, New Delhi

(iii) National Institute of Criminology & Forensic Science, New Delhi

(iv) Department of Anthropology, Delhi University

(۸) Department of Forensic Science, Punjabi University, Patiala

(vi) Central Vigilance Commission (vii) BHEL Training Courses

viil) Northem India Banking Staff Training College, Nolda

( (ix) Amity University, Ngw Delhi

(x) NPA, Hydrabad, Banks etc.

(xi) Also participated on live TV and Radio programmes.

13. Member of the High Power Committees:

(1) Remained Active Member of various Committees of Bureau of

Indian Standards (Earlier known as ISI) on Ink and paper
specifications

(II) Remained Active Member of High powered Committee for

suggesting methods for production of forgery proof passport and
 90

visas constituted by Ministry of External Affairs, Government of

India.
(lii) Member of organising Committee of intemational Conference
on Forensic Documents held at Bangalore during, Jan 20-22, 1998,
nominated by Chlef Forensic Scientist, BPR&D, MHA, Government
of India, New Delhi
(iv) Chalred Scientific Session in the All India forensic Science
Conference held at Karnal in the month of January 2004. Also
appointed as Advisor, UPSC for the selection of scientific posts.
14. As NABL Technical Assessor
I am the certified Technical Assessor of National Accreditation
Board of Laboratories of Ministry of Science and Technology, Govt
of India, New Delhi and was appointed to accredit the following
Govt. Laboratories:-

1. Govt. Examiner of Questioned Documents, Ministry of Home

Affairs, Govt. of Indla, SIMLA.
2. State Forensic Science Laboratory, Govt. of Haryana, Madhuban,
Karnal,
いぐ
1996. Also chaired many Scientific Sessions of the various National
and International Conferences held in India.
13. Teaching for the last more than 35 years I have been delivering
lectures/ talks to the various Training Institutes/Universities such
as:-

(1) CBI Academy, Ghaziabad

(il) Delhi Police Training College, New Delhi

 91

(iii) National Institute of Criminology & Forensic Science, New Delhi

(iv) Department of Anthropology, Delhi University

(۸) Department of Forensic Science, Punjabi University, Patiala

(vi) Central Vigilance Commission (vii) BHEL Training Courses

viil) Northem India Banking Staff Training College, Nolda

( (ix) Amity University, Ngw Delhi

(x) NPA, Hydrabad, Banks etc.

(xi) Also participated on live TV and Radio programmes.

13. Member of the High Power Committees:

(1) Remained Active Member of various Committees of Bureau of

Indian Standards (Earlier known as ISI) on Ink and paper
specifications
(II) Remained Active Member of High powered Committee for
suggesting methods for production of forgery proof passport and
visas constituted by Ministry of External Affairs, Government of
India.
(lii) Member of organising Committee of intemational Conference
on Forensic Documents held at Bangalore during, Jan 20-22, 1998,
nominated by Chlef Forensic Scientist, BPR&D, MHA, Government
of India, New Delhi

(iv) Chalred Scientific Session in the All India forensic Science

Conference held at Karnal in the month of January 2004. Also
appointed as Advisor, UPSC for the selection of scientific posts.
 92

14. As NABL Technical Assessor

I am the certified Technical Assessor of National Accreditation
Board of Laboratories of Ministry of Science and Technology, Govt
of India, New Delhi and was appointed to accredit the following
Govt. Laboratories:-

1. Govt. Examiner of Questioned Documents, Ministry of Home

Affairs, Govt. of Indla, SIMLA.
2. State Forensic Science Laboratory, Govt. of Haryana, Madhuban,
Karnal,
いぐ
1996. Also chaired many Scientific Sessions of the various National
and International Conferences held in India.
13. Teaching for the last more than 35 years I have been delivering
lectures/ talks to the various Training Institutes/Universities such
as:-

(1) CBI Academy, Ghaziabad

(il) Delhi Police Training College, New Delhi

(iii) National Institute of Criminology & Forensic Science, New Delhi

(iv) Department of Anthropology, Delhi University

(۸) Department of Forensic Science, Punjabi University, Patiala

(vi) Central Vigilance Commission (vii) BHEL Training Courses

viil) Northem India Banking Staff Training College, Nolda

( (ix) Amity University, Ngw Delhi

(x) NPA, Hydrabad, Banks etc.

 93

(xi) Also participated on live TV and Radio programmes.

13. Member of the High Power Committees:

(1) Remained Active Member of various Committees of Bureau of
Indian Standards (Earlier known as ISI) on Ink and paper
specifications
(II) Remained Active Member of High powered Committee for
suggesting methods for production of forgery proof passport and
visas constituted by Ministry of External Affairs, Government of
India
(lii) Member of organising Committee of intemational Conference
on Forensic Documents held at Bangalore during, Jan 20-22, 1998,
nominated by Chlef Forensic Scientist, BPR&D, MHA, Government
of India, New Delhi
(iv) Chalred Scientific Session in the All India forensic Science
Conference held at Karnal in the month of January 2004. Also
appointed as Advisor, UPSC for the selection of scientific posts.
14. As NABL Technical Assessor

I am the certified Technical Assessor of National Accreditation

Board of Laboratories of Ministry of Science and Technology, Govt
of India, New

Delhi and was appointed to accredit the following Govt.

Laboratories:-
1. Govt. Examiner of Questioned Documents, Ministry of Home
Affairs, Govt. of Indla, SIMLA.
 94

2. State Forensic Science Laboratory, Govt. of Haryana, Madhuban,

Karnal,
いぐ
1996. Also chaired many Scientific Sessions of the various National
and International Conferences held in India.
13. Teaching for the last more than 35 years I have been delivering
lectures/ talks to the various Training Institutes/Universities such
as:-
(i) CBI Academy, Ghaziabad
(ii) Delhi Police Training College, New Delhi
(iii) National Institute of Criminology & Forensic Science, New Delhi
(iv) Department of Anthropology, Delhi University
(v) Department of Forensic Science, Punjabi University, Patiala
(vi) Central Vigilance Commission (vii) BHEL Training Courses
(viil) Northem India Banking Staff Training College, Nolda
(ix) Amity University, Ngw Delhi
(x) NPA, Hydrabad, Banks etc.
(xi) Also participated on live TV and Radio programmes.

13. Member of the High Power Committees:

(i) Remained Active Member of various Committees of Bureau of
Indian Standards (Earlier known as ISI) on Ink and paper
specifications
(II) Remained Active Member of High powered Committee for
suggesting methods for production of forgery proof passport and
visas constituted by Ministry of External Affairs, Government of
India
 95

(iii) Member of organising Committee of intemational Conference

on Forensic Documents held at Bangalore during, Jan 20-22, 1998,
nominated by Chlef Forensic Scientist, BPR&D, MHA, Government
of India, New Delhi
(iv) Chalred Scientific Session in the All India forensic Science
Conference held at Karnal in the month of January 2004. Also
appointed as Advisor, UPSC for the selection of scientific posts.
14. As NABL Technical Assessor
I am the certified Technical Assessor of National Accreditation
Board of Laboratories of Ministry of Science and Technology, Govt
of India, New Delhi and was appointed to accredit the following
Govt. Laboratories:-

1. Govt. Examiner of Questioned Documents, Ministry of Home

Affairs, Govt. of Indla, SIMLA.
2. State Forensic Science Laboratory, Govt. of Haryana, Madhuban,
Karnal,
(T.R. NEHRA)
Forensic Document Consultant Website:-
www.forgerydetectors.com. T.R. NEHRA
Formar Head (Documenty Division) Central Porensic Science
Laborator C.B.I.. New Delhi.

T.R. NEHRA, M.Sc., C. Fr. Sc.

Forensic Documents Consultant

 96

Recipient of National Award for International Recognition Former

Head (Documents Wision) Central Foren Science Laboratory,
C.B.I., New Delhi

Web:-www.forgerydetectors.com

3/5, Palika Vihar, Willingdon Crespaint, Naar Teen Muril Traffic

Police Unss, New Delhi 110011 E-mail tilaknehua@hotmail.com
Tel.: 23013013, Mobile: 9810360615

Dated: 01-12-2007

Report No. 78/115

Reference: Documents received from Shri Amarnath Ghosh

Dastidar, petitioner in probate suit No. 90/03 filed on Feb 26, 2003
regarding expert opinion on the signatures of his late father Shri
Amulya Chandra Ghosh.

Details of the original Questioned documents Examined

On July 6.2007 I examined the Original WILL dated 10.05.1996
bearing Disputed Signatures alleged to be of Late Sh. Amulya
Chhandra Ghosh on its each page and bear marking as Q1 to Q3
in the honourable court of Smt Bimla Maken (Room No.210, Tis
hazari Court, Delhi) as compared the same with the standard
signatures of late Sh. A.C. Ghosh available in the court file
submitted by the petitioner and the respondents from time to time
 97

with various scientific aids and also taken their photographs on 22-
11-2007.

Further on 12.07.2007) examined the original documents bearing

admitted signatures of Late Sh Amulya Chandra Ghosh available in
official file relating to property No. G-1224. C. R.Park available at
L& DO office, Nirman Bhawan, New Delhi. The documents
examined Included the various correspondences made between
Late Amulya Chandra Ghosh and the L & DO Office during the
period 1966-1992, Agreement, Lease deed. Bank Challans &
receipts etc.

Details of the Documents examined available in Govt. records so

called Standard signatures examined (Photocopies of which
annexed and marked as A1 to A31)

1. Signature of Late Sh Amulya Chandra Ghosh appearing on the

DEED OF DEDICATION dated 07.08.1987 and marked as A1 on
them for the purpose of identification,

2. Letter addressed to The Honorary Secretary, EPDP Association

dated 24,02.92 bearing signature of Late Sh.Amulya Chandra
Ghosh red encircled and marked as A2 for the purpose of
identification.

3. Original WILL dated 07-08-1986 bearing. Signatures of Late

Sh.Amulya Chandra Ghosh on its each page and marked on its
photocopy as A3 to As for the purpose of identification.
 98

(stamp)
(signature)
Expert opinion on Questioned Signatures, Writips, Type Writings,
Forgery Detection, Age of Documents, Finger Prints etc.

4 Original Codicil / WILL (Part II) dated 31-12-1989 Chandra Ghosh

on marked on its photocopy as A7 for the purpose of
identificatiort/bear kate Shri Amulya Chandra Ghosh.

5. DDA Challan No.9669 dated 15.05.73 bearing signature of Late

Sh Amulya Chandra

Ghosh red encircled and marked as AB for the purpose of

Identification: 6. DDA Challan No.16138 dated 7.12.76 bearing
signature of Late Sh:Amulya Chandra Ghosh red encircled and
marked as A9 for the purpose of identification.

7. DDA Challan No.73809 dated 7.11.77 bearing signature of Late.

Sh.Amulya Chandra Ghosh red encircled and marked as A10 for the
purpose of identification.

8. DDA Challan No. 149368 dated 28.04.84 bearing signature of

Late Sh.Amulya Chandra Ghosh red encircled and marked as A11
for the purpose of identification.

9. Application form addressed to L & DO dated 23.02.1966 bearing

signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A12 for the purpose of Identification,,
 99

10. Agreement with L&DO dated 20.01.1969 bearing signature of

Late Sh.Amulya Chandra Ghosh red encircled and marked as A13
to A16 for the purpose of Identification.

11. Possession letter from addressed to L & DO dated 20.01.1969

bearing signature of Late Sh.Amulya Chandra Ghosh, red encircled
and marked as A17 for the purpose of Identification.

12. Letter 'addressed to Ministry Of Labour dated 4.5.1970 bearing

signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A18 for the purpose of identification.

13. Letter for building construction addressed to Ministry Of Labour

dated 19.02.1971 bearing cignature of Late Sh.Amulya Chandra
Ghosh red encircled and marked as A19 & A20 for the purpose of
identification.

14. Application to Min Of Labour Employment & Rehabilitation

dated 19.02.1971 bearing signature of Late Sh:Amulya Chandra
Ghosh red encircled and marked as A21 for the purpose of
identification.

15. Lease Deed dated 06.07.1974 available with L & D.O bearing
Signatures of Late Sh. Amulya Chandra Ghosh on its each page and
marked on its photocopy as A22 to A24 for the purpose of
Identification
 100

16. Letter to L & DO dated 16.02.1984 for ground rent bearing

signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A25 for the purpose of Identification

17. Agreement with L & DO dated 20.01.1969 for Land cost bearing
signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A26 for the purpose of identification.
4 Original Codicil / WILL (Part II) dated 31-12-1989 Chandra Ghosh
on marked on its photocopy as A7 for the purpose of
identificatiort/bear kate Shri Amulya Chandra Ghosh.
5. DDA Challan No.9669 dated 15.05.73 bearing signature of Late
Sh Amulya Chandra
Ghosh red encircled and marked as AB for the purpose of
Identification: 6. DDA Challan No.16138 dated 7.12.76 bearing
signature of Late Sh:Amulya Chandra Ghosh red encircled and
marked as A9 for the purpose of identification.
7. DDA Challan No.73809 dated 7.11.77 bearing signature of Late.
Sh.Amulya Chandra Ghosh red encircled and marked as A10 for the
purpose of identification.
8. DDA Challan No. 149368 dated 28.04.84 bearing signature of
Late Sh.Amulya Chandra Ghosh red encircled and marked as A11
for the purpose of identification.
9. Application form addressed to L & DO dated 23.02.1966 bearing
signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A12 for the purpose of Identification,,
10. Agreement with L&DO dated 20.01.1969 bearing signature of
Late Sh.Amulya Chandra Ghosh red encircled and marked as A13
to A16 for the purpose of Identification.
 101

11. Possession letter from addressed to L & DO dated 20.01.1969

bearing signature of Late Sh.Amulya Chandra Ghosh, red encircled
and marked as A17 for the purpose of Identification.
12. Letter 'addressed to Ministry Of Labour dated 4.5.1970 bearing
signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A18 for the purpose of identification.
13. Letter for building construction addressed to Ministry Of Labour
dated 19.02.1971 bearing cignature of Late Sh.Amulya Chandra
Ghosh red encircled and marked as A19 & A20 for the purpose of
identification.
14. Application to Min Of Labour Employment & Rehabilitation
dated 19.02.1971 bearing signature of Late Sh:Amulya Chandra
Ghosh red encircled and marked as A21 for the purpose of
identification.
15. Lease Deed dated 06.07.1974 available with L & D.O bearing
Signatures of Late Sh. Amulya Chandra Ghosh on its each page and
marked on its photocopy as A22 to A24 for the purpose of
Identification
16. Letter to L & DO dated 16.02.1984 for ground rent bearing
signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A25 for the purpose of Identification
17. Agreement with L & DO dated 20.01.1969 for Land cost bearing
signature of Late Sh.Amulya Chandra Ghosh red encircled and
marked as A26 for the purpose of identification.
(stamp)
(signature)
18. Certified copy of Lease Deed dated 06.07.1974 available in Sub
Registrar office bearing Signatures of Late Sh. Amulya Chandra
 102

Ghosh on its each page and marked on its photocopy as A27 to

A31 for the purpose of identification.

QUESTIONAIRE
It has been requested to opine:
Whether yes or no the signatures of Late Sh. Amulya Chandra
Ghosh on questioned documents marked as Q1 to Q3 tally with the
signatures, the photocopies of which bear the marking as A1 to A
317?
RESULT OF EXAMINATION
All the above mentioned documents have been examined carefully
by me on 22.11.07 in the court of Smt. Bimla Maken ASJ, Tees
Hazari, Delhi available in the Judicial Files relating to Suit No, 90/03
(new No.388/06) titled Amarnath Ghosh Vis state and Bimalendu
Ghosh Vis State under her kind permission, and with the help of
various scientific aids. I have also examined the original documents
on 12.07.07 at the L & D.O office with permission of Land &
Development officer Mr. A.K. Agarwal. Finally I arrived at the
following conclusion: -
The questioned original signatures appearing on the WILL dated
10.05.1996 marked Q1 to Q3, were written by the person Late Sh.
Amulya Chandra Ghosh who also wrote the standard original
signatures, the photocopies of which bear the marking as A1 to
A31 due to the following reasons:-
The questioned signatures have been written freely showing
smooth line quality and natural variations In the strokes comprising
the signatures except the line quality defects developed in a few
strokes of the signature marked Q3 appearing on the last page of
 103

the WILL and are due to the bleeding and spreading of the ink on
the line of the fold which is almost at the middle of this page.
Qualities of Imitation such as drawn and hesitating line quality,
careful retouching and joining of parts, unusual pen stops and pen
lifts, unnatural tremor, careful attention to the writing process etc.
are not present in the questioned signatures.

The so called standard signatures have also been written freely

showing smooth line quality and natural variations. They are
suitable and sufficient for the purpose of comparison with the
questioned signatures. Inter se comparison of the above
mentioned set of signatures show consistency in basic writing
habits. The range and extent of natural variations as observed in
the questioned signatures is similarly observed in the standard
signatures.
Both the questioned and the standard signatures agree with each
other in the basic and fundamental handwriting characteristics
such as movement, spacing, alignment, slant, speed, relative size
and proportion of letters etc. The skill and Tine quality of the
questioned signatures have also been found consistent with these
qualities of the standard signatures.

The questioned signatures also agree with the standard signatures

in- Individual writing characteristics, which are the minute and
inconspicuous writing habits of the writer. Some of these points of
similarities are described below: -
1. Manner of execution of capital letter A with the nature of its
start, retrace in its left hand side oblique bar as well as at the foot
 104

of its right hand side oblique bar and loop formation In its middle
horizontal stroke; relative size of body part as observed in the
questioned Bignatures reading A.C.Ghosh is similarty observed
standard signatures. The shape In the of the top junction that is
apex of this letter as observed in the questioned signatures marked
Q1 to Q3 Is similarly observed in the standard signatures marked
A3, A7, A7, A8, A19, A20, A27 etc.

2. The nature of right hand slant of the letter capital A and its
upward finish is also similarly observed between the questioned
and the standard signatures.

3. Manner of execution of capital letter C with the nature of

compact eyelet formation at its start and round body curve
formation is similarly observed in the signatures A.C.Ghosh
between the questioned and the standard signatures.

4. The nature of elongated eyelet, formation having upward axle

at the start of capital letter G with relatively short size of its staff
and angular finish in the word: Ghosh, as observed in the
questioned signatures is similarly observed in the standard
signatures. 5. The nature of angularity in the body curve of the
letter G as observed in the questioned signature marked Q1 is
similarly observed in the standard signatures marked A1, A9, and
A10 etc. The nature and extent of variations in the formation of
syelet at the top as well as the body curve of this letter have also
been similarly seen executed between the two sets of the
signatures.
 105

6. Similar manner of execution of small letter h with the nature of

retrace in its staff, shape of the body curve i.e. shoulder and
direction of finish in the word Ghosh.

7. The writer is in the habit of writing the body oval of the letter
small o in the word Ghosh in a pecullar simplified manger. This
letter o has been written in the shape of almostia vertical stroke
with retrace in it in the questioned signatures and has been
similarly seen executed in the standard signatures marked A8, A9,
A12, A13, A14,A19, A20 etc.

8. Similar manner of execution of small letter s in the word Ghosh

with the nature of arch formation in its upper body curve and
compact eyelet formation in ita base curve as observed in the
questioned signatures is similarly observed in the standard
signatures.

9. Manner of execution of the terminal letter small h in the word

Ghosh with the nature of retrace in its staff, shape and movement
of the body curve as well as descending finish is similarly observed
between the questioned and the standard signatures.

10. The relative upper position of the top of the final letter small h
in the word Ghosh than its other letters as observed in the
questioned signature marked Q3 is similarly observed in the
standard signatures marked A8, A11, A14, A17, A20, A21 etc. The
right hand side slant of this letter as observed in the questioned
 106

signature marked Q3 is similarly observed in the standard

signatures marked A1,A4,A8,A12, A16,A19,A20, A21-etc.

11. The nature of wide spacing between the letters A and C is

similarly observed between the questioned and the standard
signatures.
12. The nature of upward alignment of the questioned signatures
is similarty observed in the standard signatures.

Similar habit of connecting the letters comprising the signature AC

Ghosh.

14. Other general writing characteristics such as movement,

spacing, slant.apeed, relative size and proportion of letters etc are
also have been found similar between them.

15. The skill and line quality as observed in the questioned

signatures are also found consistent in the standard signatures.

From the perusal of the Original WILL dated 10.05.96 it has been
observed that the stamp papers on which this WILL was typed were
purchased on 01-04-96 and the text of the WiLL was then typed.
Thereafter these typed pages of the unsigned will were folded and
kept safely and finally on 10.05.98 this WILL was signed.

This is evident from the fact that on the last page of the WILL, the
date 10.06.96 was typed subsequently by using a different
typewriter which was other than the one which was used earlier
 107

for typing, the main text of the WILL, as revealed by difference

observed in the size and design of the fonts between the typed
date and the main body of the typed text of this WILL Further it
has also been observed that on the last page of the WILL the
signature reading A.C.Ghosh was signed on the fold which was
already there almost at the middle of this page, and that is why
the fountain pen ink of the strokes of the signature bled and spread
on the line of this fold. This has resulted into slow movement of
pen on the line of fold and a few natural line quality defects which
are seen present only in the questioned signature marked Q3.

I have not observed any fundamental divergence between the

questioned and the standard signatures.

CONCLUSION
Cumulative consideration of the aforesaid points of similarity which
are adequate enough to exceed the limit of accidental coincidence
as observed between the questioned and the standard signatures
in general and individual writing characteristics, cornstitute the
basis of my opinion that the writers Late Sh. Amulya Chandra
Ghosh of the standard signatures, the photocoples of which bear
the markings as A1 to A 31 Is the person, who also wrote the
questioned signatures, the photocoples of which bear the markings
as Q1 to 03.

I am enclosing a juxtaposed chart of both the disputed and some

of the standard signatures. Also enclosed are the copies of both
 108

the disputed and the standard signatures marked Q1 to Q3 and

A1 to A31.
Also attached is my bio data.
(stamp)
(signature)

//True copy//
 109

Annexure-P/7

B.N. SRIVASTAVA B.se. GESC, MLA F.Sc

Vishal Srivastava
Handwriting & Fingerprints Experts

FRAUDS & FORGERY INVESTIGATIONS

Bank Frauds Industrial Swindles Document Examiners Forgeries

Court Cases onHandwriting. Fingerprints, Erasures, Typewriting.
Ink etc.

On Panel: STATE BANK OF INDIA for all branches under 1.11.0..

New Delhi

Consultant: Govt. Deptts., Reserve Bank, L.I.C., Air-India,

Universities, Public Sector Undertakings, Detective Agencies, Co-
operative Societies etc. for ....35 yrs.

Trained at University of Delhi & Govt. Forensic Science Labs

COURT

Chamber No.: M-3. Twill Side, Tees Hazari

Mobile 08104-42768

OFF.-CUM-FESI 1-114. Vikas Puri, New Delhi-110018 Ph: 654416

 110

IN THE COURT OF MS. BIMLA MAKEN,A.D..J., DELHI

Amar Nath Ghosh Dastidar vs. State

Next date: 04.07. 2008

Examined the following:-

1. The questioned signaturęs reading as A.C.Ghosh on pages on

WILL dt. 10.5.96 hind now marked as 0-1 to 2-3 on the
photographic enlargements

2. The admitted signatures of A. C.Ghosh on two parts of WILL dt.

7.8.86 and 31.12189 filed in case Bimlendu Ghosh vs. State &
others and these. have been marked as C-1 to C-5 on their
photographic enlargements.

2. The comparative signatures of A.C. Ghosh as witness on

Indeminty Bond, Affidavit & Undertaking dt. 15.03.89.Also on
signatures of Forni A, payment to D.D.A..vide Challan Nos;
149368,61972,61973,228093.228091 and 9616 and
3.
// True copy//
 111

Annexure-P/8
IN THE COURT OF SH. AJAY KUMAR KUHAR, ASJ/SE-2 NEW
DELHI
Criminal Revision No. 161/09

In Re:-
1..Amarnath Ghosh Dastidar
S/o Late Amulya Chandra Ghose Dastidar
R/o G-1224, C.R. Park, New Delhi.

2. Dr. Prashant K. Chakraborty

S/o Late P.C. Chakraborty
R/o B-234, C.R. Park New Delhi.

Ravi Mohan Anand

S/o Major(Rtd.) R. N. Anand
R/o D-11, Vivek Vihar New Delhi-110096. …..Petitioners

Versus

State
….Respondent

Date of Institution 28-10-2009

Date when the arguments were heard 16-02-2010

Date of order 18-02-2010

 112

ORDER
1. This revision petition has been filed against the order 31-08-
2009 passed by Ld. ACMM whereby the application of the
revisionist under section 309 Cr.P.C. for stay of criminal
proceedings in FIR No.171/06, PS- C.R. Park under section
467/468/471/120-B IPC, was dismissed.

2. Trial Court's record called and perused. Arguments heard.

3. Without elaborating much on the facts of the case, sufficient

would be to say that dispute between the revisionist herein who
happens to be an accused in case FIR No.171/06 and respondent
herein who is the complainant in FIR No.171/06, is pertaining to
the Will executed by their father namely Amulya Chandra Ghosh
Dastidar who had expired on 16.12.1996 leaving behind his widow,
two sons and five married daughters. During his life time he had
executed a Will on 10.05.1996 which was purported to be in favour
of Amarnath Ghosh Dastidar i.e petitioner herein. He has filed a
Probate case vide probation petition No 90/03 before the District
Judge which is pending for disposal. Respondent herein has also
filed a Probate petition No. 254/05 qua the Will dated 07.08.1986,
as modified on 31.12.1989, allegedly executed by late Amulya
Chandra Ghosh Dastidar. Both these Probate cases are pending.
Respondent herein also filed a Criminal complaint before the EOW
Delhi Police alleging that the signature of his late father on the Will
dated 10.05.1996 are forged. This complaint led to the registration
of FIR No. 171/06 and after investigation charge sheet has been
filed.
 113

4. Respondent herein filed a petition under section 309 Cr.PC

for stay of the criminal proceedings till the decision of Probate case.
This petition was dismissed by the impugned order. The legality of
the said order has been challenged now.

5. The grounds to challenge the impugned order are that the

Trial Court failed to appreciate that the judgment of Probate Court
is a judgment in rem, therefore binding on all courts and
authorities, that the Trial Court did not take into consideration that
probation case was filed prior to the filing of the criminal case; that
the criminal complaint has been filed to drag the attesting
witnesses of the Will into criminal case; that when the application
was filed the matter in the Probate case was at the stage of
evidence that the Trial Court did not consider the judgment relied
upon nor appreciate the section 41 of the Evidence Act.
Respondent to the petition herein have not filed the reply, but has
adduced arguments.

6. The sole question for consideration in the present case is

whether the criminal proceedings should have been stayed by the
Trial Court or not?
Ld. Counsel for the revisionist has relied upon the judgments
in Ravinder Kaur Bedi Vs. Sh Jatinder Singh Bedi 1989 (16) DR.J,
Sunil Gupta Vs. Kiran Girhotra and others 157 (2009) DLT 705,
Mishri Lai Vs. Tota Ram 1984 Rajdhani Law Reporter 125 and lastly
Sardool Singh and another Vs. Smt Nasib Kaur 1987
(supplementary) SCC 146.
 114

Ld. Counsel for the revisionist put much emphasis on the

judgment in Sardool Singh's case (supra) where the dispute was
Hon'ble Supreme Court opined that the criminal prosecution on the
allegation of the Will being forged cannot be instituted.
On the contrary Ld. Counsel for the respondent has relied
upon the judgments in Iqbal Singh Marwah and others Vs.
Meenakshi Marwah 2005 (4) SCC 370, P. Swaroopa Rani Vs. M.
Hari Narayan @ Hari Babu ATR 2008 (5) SCC 765, Harinderjeet
Singh Walia Vs. State 2000 (1) JCC (Delhi) 182 and lastly Syed
Askari Hadi AH Augustine Imam and others Vs. State (Delhi
Administration). 2009 (3) JCC 1705. In the last judgment of Syed
Askari's case (supra) the Hon'ble Supreme Court had dealt with the
judgment in Sardool Singh's case (supra) and other judgments
which have dealt with the relevant question. In the said case the
criminal proceedings were not stayed despite the pendency of civil
proceedings.
Ld. Counsel for the respondent argued that the judgment in
Sardool Singh's case (supra) has been over-ruled by the Hon'ble
Supreme Court in the case of Syed Askari's case (supra).

7. However, I disagree with the submission of Ld. Counsel on this

point. It was not the question of over ruling the judgment of
Sardool Singh's case and the court had simply observed that from
the said judgment no ratio would be culled out. In the case of Syed
Aksari's case (supra) the Hon'ble Supreme Court has dealt at civil
proceedings have been initiated on the same cause of action. It
was observed that ordinarily the criminal proceedings will have
emphasis over the civil proceedings. It was also observed that the
 115

judgment announced in Probate case would be a judgment in rem,

thus having a binding character.

8. It is not disputed proposition of law in view of the latest

judgment of the Hon'ble Supreme Court mentioned above that the
civil proceedings and the criminal proceedings can proceed
simultaneously and as such there is no absolute law that either of
the proceedings has to be stayed the moment it is noticed that
both the proceedings are arising out of the same or similar cause
of action. At the same time it is also the proposition of law that
either of the proceedings can be stayed depending upon the facts
and circumstances of each case.

9. I have considered the law on which the Ld. Counsel for the
parties have relied and the factual matrix of the case as well as the
Impugned order.

10. In the present case the criminal case is at the stage of charge
and it would definitely take sometime before the case would come
at the stage of evidence. The Probate case is stated to be at the
stage of evidence. I am of the view that it would not serve any
purpose if the proceedings before the criminal court are stayed at
this stage. The would be appropriate if the Trial Court proceed with
the criminal trial as Well simultaneously with the civil proceedings
because there is no bar at proceeding with the criminal trial when
the civil proceedings are also pending. However, I am also of the
view that the judgment in Probate case would be of a binding
nature and it may have its legal repercussions on the proceedings
 116

in the criminal court. Therefore, it would be more appropriate if the

criminal proceedings are allowed to continue but the Trial Court
refrain from hearing fihal argument and disposal of the case. The
Trial Court can continue with the trial but shall not pass any final
order till the decision of the probate case. After the Probate case is
decided either of the party may file certified copy therefore, before
the Trial Court in the criminal proceedings which shall take into
consideration the decision of a Probate Court and thereafter
proceed as per the mandate of law.

11. With these directions, I dispose of the revision petition. File be

sent back to the Trial Court along with copy of this order for
compliance. Revision file be consigned to Record Room.

Announced in the open court

On 18th February, 2010 (AJAY KUMAR KUHAR)
Addl. Sessions Judge: South East-02
Patiala House Court: New Delhi
//True copy//
 117

Annexure-P/9
FIR NO. 171/06
PS. C.R. PARK (С.В.)
CHARGE

I. Naveen Arora, ACMM (SE), ND do hereby charge you accused

person namely
1. Amarnath Ghosh Dastidar,
2. Dr. Prashant Kumar Chakarvorti, and
3. Ravi Mohan Anand as under:
That all of you on or about 10.05.1996 onwards with the
jurisdiction of PS. C.R. Park, agreed amongst yourself to do an
illegal act for forgoing and fabricating the will dated 10.05.1996 of
Late Sh. Amulya Chandra Ghosh and cheating and forged
fabricated the Will in pursuance of your agreement, to commit the
offence of forgery of valuable security/will and thereby committed
offence punishable u/s 420/120-B IPC and within my cognizance.
Secondly, at the above mentioned date and place all of you in
furtherance of your conspiracy to forge and fabricated the above
mentioned Will of Late Sh. Amulya Chandra Ghosh to transfer the
immovable property bearing No. G-1224, C.R. Park, New Delhi in
favour of accused Amarnath Ghosh and thereby committed an
offence punishable u/s 467/120-B IPC and with my cognizance.
Thirdly, at the above mentioned date and place all of you in
furtherance of your conspiracy forged the above mentioned Will
dated 10.05.1996 intending that the same shall be used for the
purpose of cheating and that you committed an offence punishable
u/s 468/120- B IPC and within my cognizance.
 118

Fourthly, at the above mentioned date and place all of you in

furtherance of your conspiracy to cheat, you cheated the
complainant and the Sub- Registrar- VII, East District, Delhi by
dishonestly Inducing them to believe the existence of above
mentioned Will purported to by executed by Late Sh. Amulya
Chandra Ghosh in favour of accused Amarnath Ghosh and thereby
taking away the valuable rights of the complainant over property
No. G-1224, C.R. Park, New Delhi owned by father of Late Sh.
Amulya Cindra Ghosh, and thereby committed an offence
punishable u/s 420/120-B IPC and within my cognizance.
And I hereby direct that you be tried by this Hon'ble Court on the
above said Charge.
ACMM (SE), N.D.

The above said charge is read over and explained to the accused
in simple Hindi who is questioned as under:
Q. Do you plead guilty or claim trial?
Ans. I plead not guilty and claim trial.
Ans. I plead not guilty and claim trail
Ans. I plead not guilty and claim trial.

RO & AC ACMM (SE), ND.

11.02.2011
//True copy//
 119

Annexure-P/10

ID No. 02405R0264482012

10 No. 02406R02704012012

IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04 &

SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET: NEW DELHI

(I) CR No. 59/2012

ID No. 02406R0264482012

Ravi Mohan Anand

s/o Major (retd.) R. N. Anand
r/o D-11, Vivek Vihar
New Delhi-110096 …Revisionist

Versus

State …Respondent no. 1

Bimalendu Ghosh Dastigar

s/o Late Amulya Chandra Ghosh Dastidar
r/o W-41, 3rd Floor, Rear side,
Greater Kailash-II, New Delhi ..Respondent no. 2
 120

AND

(II) CR No. 61/2012

ID No. 02406R02704012012

Dr. Prashant K. Chakraborty

s/o Late P. C. Chakraborty
r/o B-234, Chittaranjan Park,
New Delhi – 110019 …Revisionist no. 1

Amarnath Ghosh Dastidar

s/o Late A. C. Ghosh
r/o G-1224, Chittranjan Park,
New Delhi-110019 …Revisionist no. 2

Versus

State …..Respondent

CR No. 59/2012- Instituted on: 19 October 2012

CR No. 61/2012 Instituted on 26 October, 2012
Both revisions argued on 20 September, 2013
Both revisions decided on 27 September, 2013

ORDER
 121

1. Whether the Will dated 10.05.1996 contains the last desire of

the testator-late Sh. Amulya Chandra Ghosh. According to one son,
who has set the criminal law into motion in this case, the said Will
is forged whereas according to the other son, who is accused in
this case and had applied for grant of probate prior to the initiation
of criminal proceeding, the said Will is genuine and validly
executed.

2. Two separate revision petitions are preferred against orders

dated 05.02.2011 and 11.02.2011, passed by Learned Additional
Chief Metropolitan Magistrate, South, Saket Court New Delhi
whereby charges u/s 420/468/471 r/w 120-B IPC are framed
against revisionist in case FIR No. 171/2006 PS Chittranjan Park.
Both these revision petitions are being disposed of vide this
common order.

3. I have heard submissions advanced by Sh. L. K. Upadhayay. Sh.

Vivek Sood and Sh. A. K. Sen, Learned Counsels for revisionists as
well as by Sh. Pawan Kumar Mittal and Sh. Amit Saxena Learned
Counsels for the respondents and Sh. Wasi-ur-Rahman, Learned
Addl. PP for State and have perused the record.

Facts
4. In brief, facts leading to the filing of these revision petitions are
that late Sh. Amulya Chandra Ghosh, father of complainant Sh.
Bimalendu Ghosh as well as Sh. Amarnath Ghosh (A-1) (one of the
revisionist herein) was the owner of the property bearing No. G-
1224, CR Park, New Delhi. Case of the complainant is that during
 122

his lifetime, their father bequeathed the aforesaid property by

virtue of a Will dated 07.08.1986 and a codicil dated 31.12.1989,
in equal proportion in favour of his wife Smt. Usha Ghosh and
complainant - Sh. Bimalendu Ghosh Dastidar. Testator Late Sh.
Amulya Chandra Ghosh expired on 16.12.1996 and his wife Smt.
Usha Ghosh expired on 27.05.1998: Smt. Usha Ghosh also left
behind her last Will dated 12.01.1998. On the other hand, case of
the revisionist-Amarnath Ghosh Dastidar is that late Sh. Amulya
Chandra Ghosh executed his last Will in his favour on 10.05.1996
in the presence of the attesting witnesses namely Dr. Prashant K.
Chakraborty (A-2) and Ravi Mohan Anand (A-3) (both of whom are
also revisionists herein. On 27.02.2003, a Probate petition, for
grant of Probate of Will dated 10.05.1996, purported to have been
executed by Late Sh. Amulya Chandra Ghosh Dastidar was filed in
the Court of Learned District Judge, Tis Hazari Court, Delhi which
is pending adjudication before the court of Learned ADJ, Delhi. On
coming to know about the aforesaid Will dated 10.05.1996, a
criminal complaint was filed by the complainant on 24.05.2005,
alleging that the said Will was forged, whereupon an FIR NO.
171/2006, PS C.R. Park u/s 468/471/420/120-B IPC. E.O.W. Crime
Branch Delhi was registered at the instance of complainant Sh.
Bimalendu Ghosh on 25.04.2006 i.e. after three years of filing of
Probate petition by Sh. Amarnath Ghosh Dastidar (A-1). During
investigation, police got the alleged Will dated 10.05.1996
examined from G.E.Q.D. Shimla, who after comparing the same
with the admitted handwritings of late Sn. Amulya Chandra Ghosh
collected by the police, opined that signature thereon, did not
match with the admitted signatures of Late Sh. Amulya Chandra
 123

Ghosh. Оn 06.08.2007, on conclusion of investigation, charge-

sheet was filed before the court of Metropolitan Magistrate against
accused Amarnath Ghosh Dastidar (A-1) brother of complainant
and Dr. Prasant Chakroborty (A-2) as well as Ravi Mohan Anand
(A-3). A-2 and A-3 are attesting witnesses to the Will purported to
be executed on 10.05.1996, which is alleged to be forged.

6. It may be noted that accused persons filed Crl. M.C No. 3234/07
before High Court of Delhi praying for quashing of the FIR which
was dismissed as withdrawn vide orders dated 11.10.2007. An
application under Section 309 Cr.P.C for stay of the proceedings till
the decision of the Civil court in Probate case filed by revisionists
was dismissed by Learned Metropolitan Magistrate vide orders
dated 31.08.2009. Revisionists, challenged the said order dated
31.08.2009 vide Crl. M.C No. 3638/2009, which was withdrawn
with the permission to file appropriate application before the
Sessions Court on 23.10.2009. Thereafter, revisionists filed revision
petition against the orders which were disposed off vide order
dated 18.02.2010, wherein Learned ASJ held that the "Trial Court
shall not pass final orders till the decision of the probate case."
Respondent-Amarnath Ghosh (A-1) filed a Crl MC No. 837/2010
challenging order of Ld. ASJ, which was dismissed vide order dated
17.03.2010.

7. On 05.02.2011, Learned Trial Court, after hearing the arguments

directed framing of charges and on 18.02.2011, charges Under
Section 420/467/468/471 all r/w 120-B IPC were framed. Charges
framed against revisionist, in nutshell, are that they entered into a
 124

conspiracy of forging the Will dated 10.05.1996 of late Sh. Amulya

Chandra Ghosh for the purpose of cheating, his brother-the
complainant and in furtherance of which they forged the aforesaid
Will and got it registered with sub-registrar VII inducing him to
believe the existence of the Will:

8. Revisionist/Dr. Prasant Chakroborty filed a Crl.M.C. No.

440/2011 praying for quashing of FIR and charges. Revisionist/Ravi
Mohan Anand filed a Criminal Revision 196/2011 and Amarnath
Ghosh also filed a Crl. Rev. No. 228/2011 challenging the order of
framing of charges, wherein the Hon'ble High Court on 05.05.2011
was "pleased to stay the proceedings" and all these petitions were
disposed of on 08.10.2012, whereby liberty was granted by the
High Court to the revisionists to approach Sessions Court. Hence,
these two separate revision petitions are preferred by the three
accused, before this Court.

Submissions

9. Sh. Sood, Ld. Counsel appearing on behalf of Sh. Amarnath

Ghosh Dastidar (A-1), submitted that he had filed a Probate Case
No. 386/06/03 on 27.02.2003 for obtaining probate of Will dated
10.05.1996 of his late father who expired on 16.12.1996. Probate
case was filed about 3 years prior to the registration of the FIR in
question. Admittedly, complainant as well as his sisters are
objectors and respondents in the aforesaid probate proceedings. It
is submitted that in Probate petition, petitioner filed the affidavits
by way of evidence of three witnesses and evidence of PWs was
 125

recorded in the year 2006-2007. Testimony of PW-6 was recorded

on 19.08.2008. It is pointed out that order sheet dated 20.01.2009
in the said probate case shows that the petitioner's witness
(handwriting expert) was available on the date but the counsel for
the respondents (one of whom is complainant) sought
adjournments and subsequent order sheets of 21.04.2009,
12.08.2009 and 04.12.2009 (in the said Probate case) would reveal
delaying tactics of the respondents. It is submitted that due to
delaying tactics of the respondents in the Probate case, on
04.12.2009, Respondent's Evidence was closed and they were
proceeded ex-parte. Subsequently, ex-parte order was recalled. On
15.02.2012, and on 04.07.2012, last and final opportunity was
granted to respondents to complete RE. Again, last and final
opportunity for completion of RE was given on 16.11.2012 but, till
date RE has not been deliberately completed by respondents
(complainant-herein).

10. Learned counsel urged that delaying tactics of the respondents

is apparent from the order sheets of Probate petition. He drew
attention of the Court towards portion of said orders. Portion of
said orders shown to the Court is reproduced below:

"PC No. 386/06 Amar Nath Ghosh vs. State

15.02.2012

"Ld. Counsel for respondent no. 2 to 6 prays for grant of

adjournment on the ground that the witness RW2 is not in the
town. Ld. Counsel for plaintiff opposes the same stating that
 126

various opportunities have been taken by the witness on one

ground or the other. Be that as it may, in the interest of justice,
one and last final opportunity is granted to the respondent to
complete his RE on next date subject to a normal cost of Rs. 500/-
,"

ADJ-06 (Central) Delhi

04.07.2012 (jb)
04.07.2012
…..
"Put up for RE on 21.09.2012. Last and final opportunity."
ADJ-06 (Central) Delhi
04.07.2012 (jb)

16.11.2012
…..
"RW2 partly cross-examined and discharged for today. Further
cross-examination of RW2 is deferred at the request of the witness
on the ground that he has to meet an urgent work at ITO . No
further adjournment shall be granted.
Last and final opportunity for completion of entire RE on
18.02.2013.
ADJ-06/Central/Delhi
16.11.2012 (pk)”

11. It is urged that impugned order has been passed in complete

disregard to the settled law with respect to the maintainability of a
criminal case alleging forgery of a Will, while the probate case is
 127

pending. It is submitted that our Hon'ble High Court in "Ravinder

Kumar Jain & Ors. Vs. State & Anr.” held that only a Probate Court
is the competent Court to decide about the genuineness of the Will
and the judgment of the Probate Court is considered as a judgment
in rem. High Court held that Ld. M.M. should have asked the
complainant that the MM's Court was not the competent Court to
decide upon the genuineness of the Will and summoning order was
quashed with the directions that the petitioners / accused shall
move the Probate Court with a probate petition regarding the Will.
In case the Probate Court holds that the Will was not genuine, the
legal remedy would be available to the complainant to proceed
against the petitioner.

12. It is submitted that Hon'ble Supreme Court of India in "Sardool

Singh & Anr. v. Smt. Nasib Kaur” held that where the validity of a
Will is in issue in a civil suit, the party alleging that the Will is a
forged one, cannot be permitted to institute a criminal prosecution
till the pendency of the case before the Civil Court. Ld. Counsel also
relied upon Gurmeet Singh Chopra vs Taruna Chopa & Ors; Sunil
Gupta vs Kiran Girhotra

13. It is submitted that Hon'ble Supreme Court of India in "Syed

Askari Hadi Ali Augustine Imam & Anr. v. State an authority which
is referred by respondent was called upon to decide whether
criminal proceedings deserved to be stayed as the Probate
proceedings were also pending. Hon'ble Supreme Court on facts,
found that the criminal case had been instituted much prior to the
initiation of the probate proceedings and hence the Hon'ble Court
 128

permitted the criminal proceedings to continue inspite of the

pendency of the probate proceedings.

14. It is argued that decision in the aforesaid case by the Hon'ble

Supreme Court that the criminal proceedings should continue, was
based on the facts that the criminal case was instituted much prior
to the initiation of the probate proceedings, the conduct of the
appellant/accused and the stage at which the probate proceedings
are pending and that aforesaid three factors, which weighed with
the Hon'ble Supreme Court in arriving at the decision not to quash
or stay the criminal proceedings, when applied to the facts of the
present case would lead to a different result. It is argued that the
present case is clearly distinguishable on facts with the case before
the Supreme Court. It is humbly submitted that in the instant case,
due to the factum of probate proceedings having been initiated
much prior to the criminal proceedings, the delaying tactics by the
complainant/respondents in the probate proceedings and the
probate proceedings being in the final stages, the said judgment
would apply in favour of the petitioner. Without prejudice to the
aforesaid submission that the summoning order itself was bad in
law, alternatively, it is submitted that till the pendency of the
Probate Case, the Trial Court should not proceed with the trial
which deserves to be stayed arid postponed.

15. It is contended that prior to filing of the present Criminal

Revision Petition, Ravi Mohan Anand, who had preferred Criminal
Revision Petition No. 196/2011 & the petitioner herein had
preferred Criminal Revision Petition No. 228/2011 before the
 129

Hon'ble Delhi High Court against the order on charge. Hon'ble High
Court vide a speaking and detailed order dated 05.05.2011 in Crl.
Revision Petition No. 196/2011 was 'pleased to stay the Trial Court
proceedings’ in view of the pendency of the probate petition. It is
submitted that the order is binding upon this Court or at least has
substantial persuasive value in the adjudication of the present
petition. The relevant extract from the aforesaid order dated as is
follows:-

"4. The learned counsel for the petitioner has also placed
reliance on the judgment of Apex Court in case titled Sardool
Singh & Anr. Vs. Nasib Kaur 1987 (Supp) SCC 46, wherein it
has been observed by the Apex Court that when the question
of validity of the Will is subjudice criminal prosecution on the
allegation of the Will being forged cannot be instituted.
Although, the said observations of the Court have been
passed in the case where the facts are not given, the same
could not be treated as a precedent. Nevertheless, this is a
point which in my view merits consideration
8. In the meantime, the proceedings of the case bearing FIR
No. 471/2006 u/s 193/467/468/471 IPC registered by P.S. C.
R. Park. which are pending in the Court of Sh. Naveen Arora,
learned ACMM, shall remain stayed till the next date."

16. Sh. L. K. Upadhyay, Learned counsel appearing for

revisionist/Prashant K. Chakraborty submits that there is no
evidence at all against revisionist Prashant K. Chakraborty, who is
attesting witness to the Will dated 10.05.1996 in question.
 130

Attesting witnesses have been charge sheeted simple because they

have not supported the investigation. It is submitted that Will can
be proved by the attesting witnesses and here is a case, where
attesting witnesses have been made accused simply because they
have not supported the investigating agencies as noted in the
charge sheet and on the basis of a FSL report, which is only an
opinion, cannot take place of the testimony of attesting witnesses
in any case, there are Experts' reports, to the contrary including
report of Sh. Nehra, a renowned FSL expert which supports the
case of revisionists apart from report of Sh. B. N. Srivastava.
Attention of the Court is also drawn towards statements of
witnesses (five sisters of complainant) recorded u/s 161 Cr. P.C
which are verbatim the same, which seem to have been cut, copied
and pasted and mere glance of statements of witnesses would
show the tainted manner in which their statements are recorded
and the case has been unfairly investigated. It is submitted that in
the report prepared by Sh. T. R. Nehra. Forensic (document)
consultant, who worked as a head of the questioned document, a
Division of CFSL was filed in the Probate petition, after comparing
with the admitted signatures of the, Testator. wherein it has been
opined that question signatures appearing on the Will dated
10.05.1996, were of late Sh. Amulya Chandra Ghosh. It is
submitted that the report of this expert as well as one more expert
Mr. Sriwastav filed in the protest petition shows that the will is
genuine and furthermore the expert's opinion cannot take the place
of substantive evidence of attesting witnesses, as required u/s 68
of Evidence Act.
 131

17. Sh. A. K. Sen, Learned counsel for revisionist - Ravi Mohan

Anand, who is also an attesting witness to the Will in question
purported to be executed by one Shri Amulya Chandra Ghosh on
10.05.1996. It is submitted that this witness of Will, is not a
beneficiary in any manner, who had only signed as an attesting
witness on the request of the testator and Shri Ravi Mohan Anand
has been made an accused in this case, solely on the ground that
he did not support the investigation and Investigating Officer has
categorically stated this fact in the challan that the witness has not
supported the investigation and thus, he was made an accused
without any basis.

18. It is submitted that in the pending Probate case, before the

Additional District Judge at Tis Hazari, mediation proceedings were
held. Elder brother Bimalendu Ghosh (the complainant herein) tried
to pressurize the younger brother to settle according to his terms
which was declined and consequently later on, a police complaint
was filed against the younger brother as well as the witnesses to
the Will executed by their father on 10.05.1996. It is argued that
this aspect has not been considered by the Court below. It is
argued that statement of witnesses were recorded under Section
161 Cr.P.C. by the I.O.
Section 161(3) requires the I.O. to reduce into writing any
statement made to him in the course of an examination. The
statement of the sisters of the complainant are alleged to be
recorded as provided under Section 161(3). These statements
recorded under Section 161(3) Cr.P.C. at a glance would show as
to how the investigation was conducted. The statements of each
 132

witness reveals that the statements are in verbatim and are only
computerized ditto copies of a statement having everything same
including comma and full stop, common for all. It is submitted that
Learned Trial Court in the impugned order has referred to the Will
of the testator dated 07.08.1936 holding that the same was
bequeathed in favour of his widow and elder son to the extent of
half share each but the Ld. Court below did not consider that the
said observation was not correct, because the testator in the same
Will bequeathed a substantial portion of the property in favour of
his younger son Amarnath Ghosh, accused herein. It further goes
to show that the Ld. Court below did not take into consideration,
the deed of dedication executed by the testator on 21.12.1993
which is also a part of the record being relied upon by the
prosecution.

19. It is argued that it is the cardinal principle of law is that any

observation made by the Apex Court of India becomes law of the
country and all Courts below are duty bound to obey the same. Ld.
Counsel relied upon in a case reported in "Ishwari Prasad Mishra
Vs. Mohd. Isa”; “Shashi Kumar Banerjee & ors. vs Subodh Kumar
Banerjee"; "Magan Behari Lal vs State of Punjab”; "Bhagwan Kaur
Vs. Maharaj Krishan Sharma & Ors, and "Kamal Narain Ram Saran
Lal Vs. Ram Kishore Lal & Anr.”

20. It is urged that the Learned Trial Court has brushed aside all
the above observations and findings of the superior Courts in the
impugned order, with its own incorrect opinion by observing that
"in my opinion expert opinion is the best piece of evidence and can
 133

be relied upon if proved on record with reasoning and justification

even for the purpose of conviction of an accused persons as in
these type of cases the other evidence does not carry much value
unless they are coupled with expert opinion."

21. It is urged that above observation of Ld. Magistrate is contrary

to the view taken by the Apex Court of the country. Learned
counsel wondered that as to which of the opinion among the two,
one by the highest Court of India and the other by the Learned
Magistrate (Trial Court) is to be considered as law.

22. Per contra, Sh. Mittal, Learned counsel appearing for

complainant (respondent herein) submits that all the accused
persons since beginning have been trying to scuttle the criminal
trial despite the fact that GEQD. Shimla has opined that the will
dated 10.05.1996 produced by Amarnath Ghosh and signed by
accused Dr.Prasant Chakroborty and Ravi Mohan Anand as
witnesses, was not signed by Late Sh. A.C Ghosh. It is submitted
that petitioners, while filing the revision petition concealed the
factum of earlier orders passed by this Court wherein the prayer
for quashing of FIR and charge-sheet were declined on the similar
grounds as taken in the revision petition.

23. It is argued that one of the major grounds urged for quashing
the charges is the pendency of probate petition filed by Amarnath
Ghosh which as per the submissions of the accused persons is prior
in time, then the criminal proceedings, has been rejected in the
petition filed by the accused persons. It is submitted that accused
 134

persons are protected, as Learned ASJ has directed the

continuation of the proceedings but had stayed the final outcome.

24. It is argued that Hon'ble Supreme Court in catena of judgments

including the Constitutional Bench Judgment in "Iqbal Singh
Marwah & Anr V/s Meenakshi Marwah & Anr” held that there is no
bar if both the criminal proceedings and civil proceedings are
continued together. It is submitted that Judgment relied upon by
the petitioners in the case of "Ravindra Kumar Jain & Ors V/s State
& Anr." passed by Hon'ble Justice S.N.Dhingra is per-inquirium and
not applicable in the facts of the present case and has been passed
ignoring the law laid down by the Hon'ble Supreme Court in "Iqbal
Singh Marwah & Anr V/s Meenakshi Marwah & Anr" (supra) and
"Syed Askari Hadi Ali Augstine Imam V/s State (Delhi Admin)
(supra)".

25. Learned counsel for respondent further submits that Sardool

Singh's case (Supra) of the Supreme Court relied upon by the
petitioners was not approved by the Hon'ble Apex Court in case of
"Syed Askari Hadi Ali Augstine Imam Vis State (Delhi Admin)
(supra) wherein, Supreme Court observed that "no ratio however,
can be culled out therefrom. Why such a direction was issued or
such observations were made do not appear from the said decision.
Sh. Mittal, learned counsel, contended that the judgment in case
of Sardool Singh (supra) relied upon by the petitioners is passed
by a Division Bench and the same is also per-inquirium in view of
judgment passed by the Constitution Bench of Apex Court in "Iqbal
Singh Marwah & Anr V/s Meenakshi Marwah & Anr" (supra) and
 135

Full Bench Judgment of the Apex Court in "Syed Askari Hadi Ali
Augstine Imam V/s State (Delhi Admin)" (supra). It is submitted
that law laid down by Hon'ble Supreme Court is binding and
judgments relied upon by the revisionists is not good law and not
binding on this Court. In support, Learned Counsel relied upon
"Sharad Kumar Aggarwal Vs State.”

26. It is submitted that complainant and other witnesses are more

than 65 years of age and if the trial is not permitted to proceed
with or delayed, valuable evidence might be lost. Learned counsel
contended that Apex Court has time and again held that while
exercising Revisional Jurisdiction, Courts should not go into
intricate details as regards the merits of a matter and can interfere
only when there is any illegality or material irregularity or
impropriety in the order passed by the Lower Court and a revisional
Court cannot act as court of Appeal and re-appraise the merits of
the case. Learned counsel for respondent prayed that revision
petitions be dismissed and the Learned Trial Court be directed to
conclude the trial expeditiously.

Nature of Evidence
27. At the outset, it is pertinent to note the nature of evidence on
record, in this case. Prosecution witnesses listed in this case are
mainly five sisters of complainant, namely, Deepti Dutta, Geeta
Kuhar Roy, Tripti Saxena, Sweta Ray, Rita Atorthy. On perusal of
their statements u/s 161 Cr. P. C. this Court is in agreement with
the submissions advanced by learned Counsel for revisionists that
the statement of these witnesses are verbatim, stereotyped and
 136

word by word, almost the same. Statement of Tarun Dutta, stamp

vendor is to the effect that he had sold the stamp paper on
01.04.1996 vide sl. no. 017 for the purpose of Will to one Amarnath
Ghosh Dastidar i.e. the testator. Apart from this, there is statement
of Jaishree- an advocate and the FSL report. Besides this, no other
incriminating evidence accused persons was brought to the notice
of the Court.

Redrawing of conclusion at different stages

28. Earlier on filing of an application u/s 309 Cr. P.C the
pronouncement of Judgment in this case was stayed and Trial
Court is restrained to finally hear and dispose of the case vide order
dated 18.02.2010 of Learned ASJ. It may be noted that even the
said order observed that "the Judgment in the Probate case would
be of binding nature and may have its legal repercussions on
criminal case." The said order was maintained by the High Court
on 17.03.2010. The reason, why a fresh conclusion is required to
be drawn is that the orders dated 18.02.2010 and 17.03.2010 were
passed before framing of the charge and now vide order dated
05.02.2011, Trial Court has ordered to frame charges. Now, after
sifting and weighing material on record, this Court has to see the
legality and propriety of the impugned order. Legal position is well
settled that as the matter proceeds to the next stage, all the earlier
conclusions stand effaced and are required to be redrawn in
accordance with Law (reliance may be placed on para 41 "Nupur
Talwar vs CBI (2013) 1 SCC 465"). Now, the challenge in these
petitions is to the framing of charges, therefore, while exercising
revisional jurisdiction, this Court is also called upon to consider the
 137

relevance of Judgment in probate case u/s 41 of Indian Evidence

Act and its effect and impact on framing of charges against accused
and likelihood of embarrassment to them in continuation of trial.

29. After hearing arguments advanced by Learned counsel for the

parties, the main point which emerges for determination in these
revision petitions, is whether in view of the pending previously filed
instituted probate petition by the accused (A-1), trial in this criminal
proceeding should be allowed to be continued or be postponed
when the "fact in issue in both the proceedings is the "genuineness
and validity of Will dated 10.05.1996 purported to be executed by
the testator-Sh. Amulya chandra Ghosh and accused no. 1."?

Legal Position
In order to address the issue, relevant legal position may be noted
30. In "Gurmeet Singh Chopra vs Taruna Chopra & Ors. (supra) " it
was held that Probate Court has exclusive jurisdiction to adjudicate
upon the genuineness of a Will and even the civil Court has no
jurisdiction to go into the said question.
30.1 In "Sunil Gupta v. Kiran Girhotra (supra)", our High Court
reiterated that the Probate Court has exclusive jurisdiction to
determine the genuineness or otherwise of the Will and hence a
suit seeking cancellation and declaration with respect to the Will is
required to be stayed till the decision by the Probate Court.
30.2 In Ishwari Prasad Mishra vs Mohd. Isa (supra) Supreme Court
opined that, "Evidence given by an expert of hand writing can
never be conclusive because it is, after all, an opinion evidence".
In “Shashi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee
 138

(supra)", it was held that. "The mere opinion of the expert cannot
override the positive evidence of the attesting witness". In "Magan
Behari Lal Vs. State of Punjab (supra). Supreme Court held that, it
is now well settled that expert opinion must always be received
with great caution none so with more caution than the opinion of
a hand writing expert it is unsafe to base a conviction solely on
expert opinion without substantial corroboration. This type of
evidence being opinion evidence is by its very nature, weak and
infirm and cannot of itself form the basis of a conviction.

30.3 In "Bhagwan Kaur Vs. Maharaj Krishan Sharma & Ors. (supra ).
Honble Apex Court held that "evidence of a hand writing expert
unlike that of a finger print expert is generally of the frail
character". In "Kamal Narain Ram Saran Lal Vs. Ram Kishore Lal &
Anr(supra) it was observed that "It is common knowledge that,
handwriting of persons are never uniform when they are old".

30.4 In "Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao & ors”

Hon'ble Supreme Court held that, the burden of proof that the Will
has been validly executed and is a genuine document is on the
propounder. The propounder is also required to prove that the
testator has signed the Will and that he had put his signature out
of his own free will having a wound disposition of mind and
understood the nature and effect thereof. If sufficient evidence in
this behalf is brought on record, the onus of the propounder may
be held to have been discharged. But, the onus would be on the
applicant to remove the suspicion by leading sufficient and cogent
evidence if there exists any. In the case of proof of Will, a signature
 139

of a testator alone would not prove the execution thereof, if his

mind may appear to be very feeble and debilitated However, if a
defense of fraud, coercion or undue influence is raised, the burden
would be on the caveator (See Madhukar D. Shende vs Tarabai
Shedage (2002) 2 SCC 85 and Sridevi and Ors. vs Jayaraja Shetty
and Ors. (2005) 8 SCC 784) Subject to above, proof of a Will does
not ordinarily differ from that of proving any other document.

30.5 In "Syed Askari Hadi Ali Augustine Imam & anr. Vs State”
(supra). Supreme Court considered previous judgments operating
in the field. In order to delve deep into the issue, it is necessary to
extract relevant portion o the judgment, which reads as under:-

9. "Indisputably, in a given case, a civil proceeding as also a

criminal proceeding may proceed simultaneously. Cognizance
in a criminal proceeding can be taken by the criminal Court
upon arriving at the satisfaction that there exists a prima
facie case.

The question as to whether in the facts and

circumstances of the case one or the other proceedings
would be stayed would depend upon several factors including
the nature and the stage of the case.

10. It is, however, now well settled that ordinarily criminal

proceeding will have primacy over the civil proceeding.
Precedence to a criminal proceeding is given having regard
to the fact that disposal of a civil proceeding ordinarily takes
 140

a long time and in the interest of justice the former should

be disposed of as expeditiously as possible. The law in this
behalf has been laid down in a large number of decisions.

In M. S. Sheriff & anr. Vs State of Madras and ors. (AIR

1954 SC 397), a Constitution Bench of this Court was seized
of a question as to whether a civil suit or a criminal case
should be stayed in the event both are pending; it was opined
that the criminal matter should be given precedence.

In regard to the possibility of conflict in decisions, it

was held that the law envisages such an eventuality when it
expressly refrains from making the decision of one Court
binding on the other or even relevant, except for certain
limited purposes, such as sentence or damages. It was held
that the only relevant consideration was the likelihood of
embarrassment.

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 evidence brought before it and not
in terms of the evidence brought in the criminal proceeding.

The question came up for consideration in "K. G.

Premshanker vs Inspector of Police and anr." (2002(3) SCC
1975), wherein this Court inter alia held: "What emerges
from the aforesaid discussion is - (1) the previous judgment
which is final can be relied upon as provided under Sections
 141

40 to 43 of the Evidence Act; (2) in civil suits between the

same parties, principle of res judicata may apply; (3) in a
criminal case, Section 300 Cr. P. C makes provision that once
a person is convicted or acquitted, he may not be tried again
for the same offence if the conditions mentioned therein are
satisfied; (4) if the criminal case and the civil proceedings are
for the same cause, judgment of the civil court would be
relevant if conditions of any of Sections 40 to 43 are satisfied,
but it cannot be said that the same would be conclusive
except as provided in section. 41. Section 41 provides which
judgment would be conclusive proof of what is stated
therein."

31. Further the judgment, order or decree passed in a

previous civil proceeding, if relevant, as provided under
Sections 40 and 42 or other provisions of the Evidence Act
then in each, the Court has to decide to what extent it is
binding or conclusive with regard to the matters decided
therein. Take for illustration, in a case of alleged trespass by
A on B's property, B filed a suit for declaration of its title and
to recover possession from A and suit is decreed. Thereafter,
in a criminal prosecution by B' against A for trespass,
judgment passed between the parties in civil proceedings
would be relevant and the Court may hold that it conclusively
establishes the title as well as possession of B over the
property. In such case. A may be convicted for trespass. The
illustration to Section 42 which is quoted above makes the
position clear. Hence, in each and every case, the first
 142

question which would require consideration is whether,

judgment, order or decree is relevant, if relevant its effect. It
may be relevant for a limited purpose, such as, motive or as
a fact in issue. This would depend upon the facts of each
case."
…………………………………….
11. Axiomatically, 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. We have noticed
herein before that Section 43 of the Evidence Act
categorically states that judgments, orders or decrees, other
than those mentioned in Sections 40, 41 and 42 are
irrelevant, unless the existence of such judgment, order or
decree, is a fact in issue, or is relevant under some other
provisions of the Act. No other provision of the Evidence Act
or for that matter any other statute has been brought to our
notice.

Another Constitution Bench of this Court had the occasion to

consider a similar question in "Iqbal Singh Marwah & Anr. Vs
Meenakshi Marwah & anr." 2005 (2) JCC 768
wherein...........................................................

Relying inter alia on M. S. Sheriff, it was held:

32. "Coming to the last contention that an effort should be

made to avoid conflict of findings between the civil and
criminal courts, tis necessary to point that the standard of
 143

proof required in the two proceedings are entirely different

Civil cases are decided on the basis of preponderance of
evidence while in a criminal case the entire burden lies on
the prosecution and proof beyond reasonable doubt has to
be given. There is neither any statutory provision nor any
legal principle that the findings recorded in one proceeding
may be treated as final or binding in the other, as both the
cases have to be decided on the basis of the evidence
adduced therein.”

The question yet again came up consideration in "P

Swaroopa Rani vs M. Hari Narayana Hari Babu", whurein it
was categorically held that:

13. "It is however, well settled that in a given case, civil

proceedings and criminal proceedings can proceed
simultaneously. Whether civil proceedings or criminal
proceedings shall be stayed depends upon the fact and
circumstances of each case."

12. Mr. Dwivedi, however, would urge that in a case of this

nature Section 41 of the Indian Evidence Act, 1872 would be
applicable. In support of his aforementioned contention place
strong reliance on "Sardool Singh & anr. Vs Smt. Nasib Kaur"
(1987) (Supp.) SCC 146), Commissioner of Income tax,
Mumbai vs Bhupen Champak Lal Dalal & anr 2001 (1) JCC
328: ((2001) 3 SCC 459) and and Surinder Kumar & ors. Vs
Gian Chand & ors. [AIR1957 SC 875)
 144

"Section 41 of Indian Evidence Act reads as under:

41. "Relevancy of certain judgments in probate, etc.,
jurisdiction- a final judgment, order or decree of a competent
court, in the exercise of probate, matrimonial admiralty or
insolvency jurisdiction which confers upon or takes away
from any person any legal character, or to be entitled to any
specific thing, not as against any specified person but
absolutely is relevant when the existence of any such legal
character, or the title of any such person to any such thing,
is relevant.

Such Judgment, order or decree is conclusive proof- that any

legal character which it confers accrued at the time when
such judgment, order or decree came into operation;
that any legal character, to which it declares any such
person to be entitled, accrued, to that person at the time
when such judgment, order or decree declares it to have
accrued to that person:
that any legal character which it takes away from any
such person ceased at the time from, which such judgment,
order or decree declared that it had ceased or should cease:
and that anything to which it declares any person to be
so entitled was the property of that person at the time from
which such judgment, order to decree declares that it had
been or should be his property."
Section 41 of the Evidence Act would become
applicable only when a final judgment is rendered. Rendition
 145

of a final judgment which would be binding on the whole

world being conclusive in nature shall take a long time. As
and when a judgment is rendered in one proceeding subject
to the admissibility thereof keeping in view Section 43 of the
Evidence Act may be produced in another proceeding. It is
however, 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 civil proceedings.
…………………………………….
The question came up for consideration again before this
Court in "Sardool Singh & Anr. Vs Smt. Nasib Kaur (supra)",
wherein it was opined that

"A civil suit between the parties is pending wherein the

contention of the respondent is that no Will was executed
whereas the contention of the appellants is that a Will has
been executed by the testator. A case for grant of probate is
also pending in the Court of Learned District Judge, Rampur.
The civil Court is therefore, seized of the question as regards
the validity of the Will. The matter is sub judice in the
aforesaid two cases in civil Courts. At this juncture the
respondent cannot therefore, be permitted to institute a
criminal prosecution on the allegation that the Will is a forged
one. That question will have to be decided by the civil court
after recording the evidence and hearing the parties in
accordance with law. It would not be proper to permit the
 146

respondent to prosecute the appellants on this allegation

when the validity of the Will is being tested before a civil
Court............. This Will not come in the way of instituting
appropriate proceedings in future in case the civil Court
comes to the conclusion that the Will is forged one."

"No ratio, however, can be culled out therefrom. Why

such a direction was issued or such observations were made
do not appear from the said decision."

13. Herein, however criminal case had already been

instituted. Whether the same would be allowed to be
continued or not is the question......... The Court therein was
concerned with a case involving Section 42 of the Evidence
Act. The learned counsel may be correct as it was held that
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.
…………………………..
A Constitution Bench of this Court in Iqbal Singh
Marwah & anr. (Supra) also does not appears to have dealt
with this aspect of the matter.

The question, however would be as to whether despite

the same should we interfere with the impugned judgment.
We do not think that we should firstly, because the criminal
case was instituted much prior to the initiation of the Probate
proceeding and secondly, because of the conduct of the
 147

appellant and the stage in which the probate proceedings are

pending.

For the aforementioned purpose, it may not be relevant

for us to enter into the disputed question as to whether the
Will is surrounded by suspicious circumstances as the same
would appropriately call for decision in the testamentary
proceeding. Pendency of two proceedings whether civil or
criminal, however, by itself would not attract the provisions
of Section 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 Section 63 (c) of
the Indian Succession Act and Section 68 of the Evidence Act.

14. The FIR was lodged not only in regard to forgery of the
Will but also on the cause of action of a trespass. Appellant
admittedly is facing trial under Section 420, 468 and 448 of
the IPC. It is, thus. possible that even if the Will is found to
be genuine and that no case under Section 468 IPC is found
to have been made out, appellant may be convicted for the
commission of other offences for which he has been charged
against, namely, trespass into the property and cheating. It
is found that the appellant is guilt of trespass, he may be
asked to handover possession of the premises in question to
the complainant".
 148

15. Exercise of such a jurisdiction furthermore is

discretionary. As noticed by several decisions of this Court,
including two Constitution Bench decisions, primacy has to
be given to a criminal case. The FIR was lodged on
19.09.2002. No only another civil suit is pending, as noticed
herein-before, but a lis in relation to mutation is also pending.

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 the genuineness
of the Will. It is alleged that the Will was registered at
Hazaribagh after the death of the testarix. 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 as noticed herein-
before charge sheet has been filed and cognizance of the
offence has been taken.

We, therefore, are of the opinion that it is not a fit case

where we should exercise our discretionary jurisdiction under
Article 136 of the Constitution of India having regard to the
facts and circumstances of the present case."

(emphasis supplied)
 149

31. Therefore, it is obvious that "Syed Askari Hadi Ali Augustine

Imam Vs. State (Delhi Admn.) (supra)" relied upon by the
respondent, Hon'ble Supreme Court held that in that case, the FIR
was lodged not only in regard to forgery of the Will but also on the
cause of action of a trespass. It was observed that "appellant
admittedly was facing trial not only u/s 420 & 468 but also u/s
Section 448 of the IPC. It is, thus, possible that even if the Will was
found to be genuine and that no case under Section 468 of the IPC
is found to have been made out, appellant may be convicted for
commission of other offences for which he was charged against,
namely trespass into the property and cheating. Thus. Syed
Askari's case was decided in its peculiar factual matrix. In "Sardool
Singh's case (supra)", "a civil suit between the parties was pending
wherein the contention of the respondent was that no Will was
executed whereas the contention of the appellants is that a Will
has been executed by the testator. A case for grant of probate was
also pending in the court of District Judge, Rampur. Civil Court was
seized of the question as regards the validity of the Will. In these
circumstances, it was noted that juncture, respondent cannot be
permitted to institute a criminal prosecution on the allegation that
the Will is a forged one. It was observed that it would not be proper
to permit the respondent to prosecute the appellants on this
allegation when the validity of the Will is being tested before a civil
court. Criminal proceedings pending in the Court of the Judicial
Magistrate. Chandigarh was quashed and it was further observed
that this will not come in the way of instituting appropriate
 150

proceedings in future in case the civil court comes to the conclusion

that the Will is a forged one.

32. No doubt, in Sardool Singh's case detailed facts were not given
and also previous precedents operating in the field were not
referred and analyzed therein but, this Court finds, no merits in the
contention advanced by Learned counsel for respondent that
observations made by Hon'ble Supreme Court in Sardool singh's
case were 'per inquirium' or observations made therein were 'over-
ruled’. In Syed Askari's case, it was only noted that no ratio can be
culled out therefrom. 'Ratio' is a binding principle which emerges
from a course of decisions.

33. Now, adverting to the ratio of M. S. Sheriff's case, which has

been referred and quoted in Syed Askari's case. K. G.
Premshanker's case and in Iqbal Singh Marwah's case, it is
necessary to understand the context, in which observations were
made. In short, the facts of that case were, that the two persons,
namely, Govindan and Damodaran had filed petitions u/s 491 of
Code of criminal procedure for release, claiming that they had been
illegally detained by the two sub-inspectors of Police (appellants in
the said case). Each of the sub-Inspector sworn an affidavit in
support of his return. In view of conflict between their two sets of
statements, High Court directed District Judge to make an inquiry.
District Judge reported that the statement by the two sub-
inspectors were correct but the High Court disagreed and after an
elaborate examination of evidence, reached the conclusion that
petitioners were telling truth and not the sub-inspectors.
 151

Petitioners applied to High Court u/s 476 Cr P. C. (of the old Code,
now Section 340 Cr.P.C) for prosecution of sub-inspectors for
perjury for offence u/s 193 of IPC. Their applications were granted
and Deputy Registrar of High Court was directed to make necessary
complaints. Sub-inspectors appealed against the aforesaid order
and against the order u/s 476 Cr.P.C. but Supreme Court found no
reason for interfering with the High Court's order in directing
prosecution of the sub-Inspector u/s 476 Cr. P.C.

34. In the aforesaid, factua, scenario, it was observed:

14. "...... It was said that the simultaneous prosecution
of these matters will embarrass the accused... but we can
see that the simultaneous prosecution of the present criminal
proceedings out of which this appeal arises and the civil suits
will embarrass the accused We have therefore to determine
which should be stayed."

15. As between the civil and the criminal proceedings we are

of the opinion that the criminal matters should be given
precedence. There is some difference of opinion in the High
courts of India on this point. No hard and fast rule can be
laid down but we do not consider that the possibility of
conflicting decisions in the civil and criminal Courts 's a
relevant consideration. The law envisages such an
eventuality when it expressly refrains from making the
decision of one Court binding on the other, on even relevant,
except for certain limited purposes, such as sentence or
 152

damages. The only relevant consideration here is the

likelihood of embarrassment.
16.. Another factor which weighs with us is that a civil
suit often drags on for years and it is undesirable that
a criminal prosecution should wait till everybody
concerned has forgotten all about the crime. The public
interest demand that criminal justice should be swift
and sure; that the guilty should be punished while the
events are still fresh in the public mind and that the
innocent should be absolved as early as is consistent
with a fair and impartial trial. Another reason is that it
is undesirable to let things slide till memories have
grown too dim to trust. This, however, is not a hard
and fast rule. Special considerations obtaining in any
particular case might make some other course more
expedient and just. For example, the civil case or the
other criminal proceeding may be so near its end as to
make it inexpedient to stay it in order give precedence
to a prosecution ordered under Section 476 But in this
case we are of the view that the civil suits should be
stayed till the criminal proceedings have finished.

35. Thus, reading M. S. Sheriff's case would show that the

civil suit which was stayed was for 'damages for wrongful
confinement' and, it was noted that the simultaneous
prosecution of the criminal proceedings i.e. (the proceedings
u/s 476 of the Code directed by High Court, out of which the
appeal before the Supreme Court arose) and the civil suit for
 153

damages will embarrass the accused and that the only

relevant consideration, in the said case was the likelihood of
embarrassment.

36. Thus, principle which can be culled out from the analysis
of existing judgments, is that stay of proceedings or
postponement of proceeding. in exercise of jurisdiction under
Section 309 Cr.PC is permissible. There is no such principle
that stay of one or other proceeding can never be granted.
It would depend on the facts of each case and on special
consideration obtaining in a particular case. No hard and fast
rule can be laid down as to which of the proceedings-civil or
criminal must be stayed. It was noted that possibility of
conflicting decisions in the civil or criminal courts cannot be
considered as a relevant consideration for stay of the
proceedings as law envisaged such as eventuality. Likelihood
of Embarrassment was considered to be the only relevant
consideration and having regard to certain facts, Hon'ble
Apex Court found it expedient in M. S. Sheriff's case to stay
the civil proceedings. Hon'ble Supreme Court made it clear
that this was not a hard and least rule, special considerations
obtaining in any particular case might make some other
course more expedient and just.

37. Now, in K. G. Premshanker's case, the appellant had

moved the apex Court for quashing of prosecution against
them. The factual matrix of this case is noteworthy. One
Madhwan, who was arrested in a case u/s 228-A IPC and u/s
 154

7 (1) (d) of protection of Civil Rights Act was taken in a police

jeep to the police station and on the way he was assaulted
by the policemen. He complained that he was assaulted by
the policemen. He was enlarged on bail. He got himself
admitted in the hospital and lodged the FIR against sub-
Inspector and other policemen of Kannaur. The case
registered against Madhwan was quashed by High Court. As
no progress was made in the FIR, registered by Madhwan,
High court directed DIG of police, Northern range to
investigate the police. Thereafter, the Court entrusted the
investigation to CBI. Thereafter, final report was filed before
CJM, Arnakulum against 12 accused including appellant- K.
G. Premshanker for the offences punishable u/s
324/341/357/219 and 166 IPC. Appellant filed an application
for dropping of proceedings. High Court found that it was not
a fit case for jurisdiction u/s 482 Cr.P C Appellant had raised
another contention before High Court that de-facto
complainant Madhwan had filed a suit for damages before
the sub-Court Tellicherry against the appellant and other,
which was dismissed by Trial Court and against which an
appeal was preferred. It was contended that as the suit was
dismissed, the decision rendered by the Civil Court will prevail
and therefore, criminal prosecution against appellant and
others was required to be dropped.

38. Hon'ble Supreme Court considered Sections 40,41,42 and

43 of the Evidence Act, 1872 and observed that the decision
in M. S. Sherif's case would be binding wherein it has been
 155

held that no hard and fast rule can be laid down and that
possibility of conflicting decision in civil and criminal courts is
not a relevant consideration.

39. It was further observed that in each and every case, the
first question which would require consideration is, whether
judgment, order or decree is relevant; if relevant, its effect.
This would depend upon the facts of each case. In K. G.
Premshankar, the effect of Sections 40 to 43 of the Evidence
Act has been noted that, if the criminal case and civil
proceedings are for the same cause, judgment of the civil
Court would be relevant if conditions of any of Sections 40 to
43 are satisfied but it cannot be said that the same would be
conclusive except as provided in Section 41. Section 41
provides which judgment would be conclusive proof of what
is sated therein. It is important to note that in both cases,
i.e. M. S. Sherrif's case and in K. G Premshanker's case,
pending civil suits were for damages and Section 41 of Indian
Evidence Act was actually not involved therein and the Court
was concerned with facts involving Section 42 of Evidence
Act.

40. Court has to find out 'material facts' of the case in hand
as well as material facts' of case referred as precedent. It is
well settled that a Judgment is binding precedent for what it
decides and not what logically follows from it. In "Bhavnagar
University vs Palitana Sugar Mill (P) Ltd." the following
observations were made.
 156

"A decision, as is well known, is an authority for which

it is decided and not what can logically be deduced
therefrom. It is also well settled that a little difference
in facts or additional facts may make a lot of difference
in the precedential value of a decision."

41. In Syed Askari's case, aforesaid cases were discussed and

observations made therein were quoted with approval. It was also
noted that "no ratio could be culled out from Sardool Singh's case
(wherein, it does appears that Section 41 of Evidence Act came
into 'play' as validity of Will was being tested in a pending Probate
case), but, it is obvious that Syed Askari's case was decided on the
facts.

42 In Ravinder Kumar's Judgment (supra) decided on 10.09.2010,

by our High Court, Learned Metropolitan Magistrate had
summoned the petitioner u/s 420/463/464/467/468/469/471/474
IPC relying upon a Will dated 28.12.2003 executed by his late
father as the last and genuine Will. Complainant alleged that the
Will relied upon his late father was a forged document. In this case,
Section 41 came into the picture and Hon'ble High Court held that
only the Probate Court is the competent Court to decide about the
genuineness of the Will and the Judgment of the Probate Court is
considered as a Judgment in rem and that is why it is always
advisable that if there is dispute about the genuineness of a Will,
the same should be carried to the Probate Court. It was noted that
in case, the Probate Court holds that the Will was not genuine, the
 157

legal remedy would be available to the respondent to proceed

against the petitioner. To my mind, it cannot be observed, as
desired by Learned counsel for respondent, that this case is also
‘per incuriam’ and thus, not binding on this Court.

43. Therefore, the question as to whether in the facts and

circumstances of the case, one or the other proceedings would be
stayed or postponed would depend upon several factors including
the nature and the stage of the case. If criminal and civil case are
for the same cause, Judgment, decree or order referred in Section
41 of Indian Evidence Act, which pertains to probate of a Will shall
not only be relevant but shall also be conclusive.
44. "Likelihood of embarrassment" to a party is held to be a
relevant consideration. The question to be considered is that what
is the meaning of term likelihood of embarrassment" It is therefore
necessary to understand the meaning of the term 'embarrassment.
How "embarrassment" can be conceived of in criminal proceedings.
In this context, relevant extracts of Section 309 Cr.PC may be
noted:-

45. "Section 309 Power to postpone or adjourn proceedings.

(1) ………..
(2) if the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or
trial, it may, from time to time for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit.
for such time as it considers reasonable……”
 158

46. It is noticeable from a reading of Section 309 Cr.PC, that the

discretion to exercise such powers may arise after taking
cognizance or on commencement of trial. A trial commences with
the framing or explanation of charges. A comprehensive power and
a Judicial discretion has been vested in the Court to postpone
and/or adjourn the proceeding in an appropriate case. The
question, therefore, is when and why such power has to be
exercised. Now. So far as embarrassment is concerned, neither
Code of Criminal Procedure lays down specifically as to what
'embarrassment actually means nor the term has been elucidated
in M. S. Sheriff's or subsequent Judgments which have quoted with
approval the said 'expression', when Court confronts a situation as
in the present case. Court is required to determine whether the
continuation of proceedings can be said to be embarrassing and
should it be allowed to continue or not. What would be the
consequences of continuation of such a proceeding and further, if
it allowed to be postponed then for, how long?

47. In order to find an answer as to what could mean 'embarrassing

provisions of. Section 41 of Indian Evidence Act are significant, in
the context of instant case, as it clearly speaks inter-alia of Probate
cases which are judgments in rem and these judgments are
conclusive proof of the status or legal character and a 'Will' has an
effect of conferring, declaring, accruing or taking away any right to
property to any person.
 159

48. If the circumstances, mentioned in section 41, are shown to be

relevant in a criminal proceeding, running simultaneously with
Probate 'proceeding, then accused apprehends likelihood of
embarrassment and continuation of criminal proceeding may be
prejudicial to his interest. The ratio laid down in the case of MS
Sheriff (supra), more particularly with reference to facts and
circumstances of the case, has to be understood in the context of
relevancy of judgments u/s 41 of the Evidence Act. It will cause
embarrassment to the accused persons (revisionists herein), if they
are forced to face a trial in a criminal proceeding on the same 'facts
in issue' prior to the decision of previously instituted petition
pending before the Probate Court, particularly, wherein attesting
witnesses themselves are made accused. In the present criminal
case 'fact in issue' is validity and genuineness of the Will dated
10.05.1996 and the material point for determination is "whether
this Will is forged or genuine" and exactly similar question is
involved to be determined, in the Probate petition. Thus, as noted
above, finding of Probate Court will be binding on the Criminal
Court and in the instant case, special considerations are that
criminal case is only at its initial stages, whereas Probate
proceeding is at an advanced stage, therefore, it is a fit case for
the postponement of the present criminal proceedings, till the
decision in the Probate proceedings.

49. The postponement of the case shall be co-terminus with the

end of pending Probate proceedings before the Probate Court. In
case, decision in the Probate petition is such that the Will in
question is found to be genuine and stands proved then, the status
 160

so declared will not only be relevant but Will have a direct bearing
on the allegations of forgery of Will in this criminal base, at the
stage of charge'.

Conclusions
50. To conclude, legal and factual position which emerges from
the aforesaid analysis Is as under:

(i) In a given case, civil proceedings and criminal proceedings

can proceed simultaneously and one of the proceedings can
be stayed or postponed u/s 309 Cr P. C. Whether civil
proceedings or criminal proceedings shall be stayed depends
on the facts and circumstances of each case.

(ii) There is no hard and fast rule. Course, which is expedient

and just depends upon special consideration obtaining in a
case and in each and every case, the question for
consideration is whether Judgment or order of the other
proceeding is relevant and if relevant, then its effect.

(iii) Judgment in Probate petition is Judgment in rem and is

relevant u/s 41 Indian Evidence Act. grant of Probate is a
Judgment in rem and conclusive and binds not only parties
but the entire world and Probate Court alone has the
jurisdiction to adjudicate upon proof or validity of a Will
propounded by the executrix.
 161

(iv) Askari Hadi Ali's case relied upon by respondents

distinguishable as in the said case criminal case was
instituted prior to Probate petition and there not only conduct
of petitioner and stage of proceedings were considered but
also the fact that apart from forgery, allegations of trespass
were existing, whereas in the instant case only the validity
and genuineness of Will is in question in both the cases.

(v) In Iqbal Singh Marwah's case relied upon by respondent,

the question which fell for consideration was as to whether a
Bar under section 195 (1) (b) (i) and (ii) operates for taking
cognizance, when a complaint is filed alleging that Will tiled
by accused in a Probate case was forged and it was held that
the Bar would not operate, if the Will is forged before its filing
in the Court. Hence, the observations in the said case have
no bearing on the facts and circumstances of present case.
Even, in Askari's case, it was noted that Iqbal Singh Marwah's
case does not appear to have dealt with this aspect of the
matter i.e. Section 41 of Evidence Act.

(vi) Legal position is well settled that evidence given by

expert of handwriting can never be conclusive because it is
after all an opinion evidence, which by its very nature is weak
& infirm and it is unsafe and cannot of itself form the basis
for conviction, therefore, observation made by the Learned
Trial Court in the impugned order that "expert opinion is best
piece of evidence and can be relied upon ever for the purpose
 162

of conviction of accused or in these type of cases, other

evidence does not carry much value", are erroneous.

(vii) Legal principles in regard to proof of a Will are no longer

res-integra. A Will has to be proved having regard to the
provisions contained in clause (c) of Section 63 of the Indian
Succession Act. 1925 and Section 68 of the Indian Evidence
Act, 1872, in terms whereof the propounder of a Will must
prove its execution by examining one or more attesting
witnesses. Where, however, the validity of the Will is
challenged on the ground of fraud, coercion or undue
influence, the burden of proof would be on the caveator.

(viii) In view of Section 68 of Indian Evidence Act, revisionist-

Amarnath Ghosh (A-1) has to be given an opportunity to
prove the Will, in the Probate 'petition by examining attesting
witnesses, but in this criminal proceedings, attesting
witnesses cannot be examined as prosecution witnesses,
being arraigned as accused.

(ix) In the present, case, Probate petition was filed earlier in

point of time by revisionist-Amarnath Ghosh (A-1) on
27.02.2003, whereas, criminal proceedings, at the instance
of complainant (respondent herein) was registered on
25.04.2006 vide FIR no. 171/2006, at PS C. R. Park. Delhi i.e.
after three years of initiation of Probate proceedings and
secondly Probate petition is pending at the fag end i.e. stage
 163

of respondents’ evidence whereas in criminal proceedings,

trial has yet to begin.

(x) Continuation or commencement of trial in this case will

greatly prejudice the accused persons herein and there is
likelihood of embarrassment to revisionist, as 'facts in issue'
before the Probate Court and charges in criminal proceedings
are intimately linked and therefore, in the factual setting of
the case, till a final decision is given by Probate Court, it will
not only be advisable but also necessary in the interest of
Justice, not to proceed further with the trial against the
revisionists.

51. In the result, this Court is of the considered view that interest
of justice requires that commencement of trial in this case should
be stayed and postponed till the announcement of Judgment by
the Probate Court in the pending previously instituted Probate
proceedings. Parties shall place on record certified copy of
judgment within two weeks of passing of the order therein and
thereafter, this criminal proceeding arising out of FIR No.
171/2006. PS Chittranjan Park shall be revived and Learned Trial
Court shall re-hear the parties afresh on the point of charge. in the
light of findings and conclusions arrived at by the Probate Court.
Revision petitions are disposed of in aforesaid terms.

52. TCR be sent back along with a copy of this order. Revision files
be consigned to Record Room.
 164

announced in the
open Court
on 27 September, 2013

(Vinay Kumar Khanna)

Additional Sessions Judge-04 &

Special Judge (NDPS) South East,

Saket Courts/New Delhi

//True copy//
 165

Annexure-P/11

ID No. 02405R0264482012
10 No. 02406R02704012012
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04 &
SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET: NEW DELHI
(I) CR No. 59/2012
ID No. 02406R0264482012
Ravi Mohan Anand
s/o Major (retd.) R. N. Anand
r/o D-11, Vivek Vihar
New Delhi-110096 …Revisionist
Versus
State …Respondent no. 1
Bimalendu Ghosh Dastigar
s/o Late Amulya Chandra Ghosh Dastidar
r/o W-41, 3rd Floor, Rear side,
Greater Kailash-II, New Delhi ..Respondent no. 2

AND

(II) CR No. 61/2012

ID No. 02406R02704012012

Dr. Prashant K. Chakraborty

s/o Late P. C. Chakraborty
 166

r/o B-234, Chittaranjan Park,

New Delhi – 110019 …Revisionist no. 1

Amarnath Ghosh Dastidar

s/o Late A. C. Ghosh
r/o G-1224, Chittranjan Park,
New Delhi-110019 …Revisionist no. 2

Versus

State …..Respondent

CR No. 59/2012- Instituted on: 19 October 2012

CR No. 61/2012 Instituted on 26 October, 2012
Both revisions argued on 20 September, 2013
Both revisions decided on 27 September, 2013
ORDER

1. Whether the Will dated 10.05.1996 contains the last desire of

the testator-late Sh. Amulya Chandra Ghosh. According to one son,
who has set the criminal law into motion in this case, the said Will
is forged whereas according to the other son, who is accused in
this case and had applied for grant of probate prior to the initiation
of criminal proceeding, the said Will is genuine and validly
executed.
2. Two separate revision petitions are preferred against orders
dated 05.02.2011 and 11.02.2011, passed by Learned Additional
Chief Metropolitan Magistrate, South, Saket Court New Delhi
 167

whereby charges u/s 420/468/471 r/w 120-B IPC are framed

against revisionist in case FIR No. 171/2006 PS Chittranjan Park.
Both these revision petitions are being disposed of vide this
common order.
3. I have heard submissions advanced by Sh. L. K. Upadhayay. Sh.
Vivek Sood and Sh. A. K. Sen, Learned Counsels for revisionists as
well as by Sh. Pawan Kumar Mittal and Sh. Amit Saxena Learned
Counsels for the respondents and Sh. Wasi-ur-Rahman, Learned
Addl. PP for State and have perused the record.
Facts
4. In brief, facts leading to the filing of these revision petitions are
that late Sh. Amulya Chandra Ghosh, father of complainant Sh.
Bimalendu Ghosh as well as Sh. Amarnath Ghosh (A-1) (one of the
revisionist herein) was the owner of the property bearing No. G-
1224, CR Park, New Delhi. Case of the complainant is that during
his lifetime, their father bequeathed the aforesaid property by
virtue of a Will dated 07.08.1986 and a codicil dated 31.12.1989,
in equal proportion in favour of his wife Smt. Usha Ghosh and
complainant - Sh. Bimalendu Ghosh Dastidar. Testator Late Sh.
Amulya Chandra Ghosh expired on 16.12.1996 and his wife Smt.
Usha Ghosh expired on 27.05.1998: Smt. Usha Ghosh also left
behind her last Will dated 12.01.1998. On the other hand, case of
the revisionist-Amarnath Ghosh Dastidar is that late Sh. Amulya
Chandra Ghosh executed his last Will in his favour on 10.05.1996
in the presence of the attesting witnesses namely Dr. Prashant K.
Chakraborty (A-2) and Ravi Mohan Anand (A-3) (both of whom are
also revisionists herein. On 27.02.2003, a Probate petition, for
grant of Probate of Will dated 10.05.1996, purported to have been
 168

executed by Late Sh. Amulya Chandra Ghosh Dastidar was filed in

the Court of Learned District Judge, Tis Hazari Court, Delhi which
is pending adjudication before the court of Learned ADJ, Delhi. On
coming to know about the aforesaid Will dated 10.05.1996, a
criminal complaint was filed by the complainant on 24.05.2005,
alleging that the said Will was forged, whereupon an FIR NO.
171/2006, PS C.R. Park u/s 468/471/420/120-B IPC. E.O.W. Crime
Branch Delhi was registered at the instance of complainant Sh.
Bimalendu Ghosh on 25.04.2006 i.e. after three years of filing of
Probate petition by Sh. Amarnath Ghosh Dastidar (A-1). During
investigation, police got the alleged Will dated 10.05.1996
examined from G.E.Q.D. Shimla, who after comparing the same
with the admitted handwritings of late Sn. Amulya Chandra Ghosh
collected by the police, opined that signature thereon, did not
match with the admitted signatures of Late Sh. Amulya Chandra
Ghosh. Оn 06.08.2007, on conclusion of investigation, charge-
sheet was filed before the court of Metropolitan Magistrate against
accused Amarnath Ghosh Dastidar (A-1) brother of complainant
and Dr. Prasant Chakroborty (A-2) as well as Ravi Mohan Anand
(A-3). A-2 and A-3 are attesting witnesses to the Will purported to
be executed on 10.05.1996, which is alleged to be forged.
6. It may be noted that accused persons filed Crl. M.C No. 3234/07
before High Court of Delhi praying for quashing of the FIR which
was dismissed as withdrawn vide orders dated 11.10.2007. An
application under Section 309 Cr.P.C for stay of the proceedings till
the decision of the Civil court in Probate case filed by revisionists
was dismissed by Learned Metropolitan Magistrate vide orders
dated 31.08.2009. Revisionists, challenged the said order dated
 169

31.08.2009 vide Crl. M.C No. 3638/2009, which was withdrawn

with the permission to file appropriate application before the
Sessions Court on 23.10.2009. Thereafter, revisionists filed revision
petition against the orders which were disposed off vide order
dated 18.02.2010, wherein Learned ASJ held that the "Trial Court
shall not pass final orders till the decision of the probate case."
Respondent-Amarnath Ghosh (A-1) filed a Crl MC No. 837/2010
challenging order of Ld. ASJ, which was dismissed vide order dated
17.03.2010.
7. On 05.02.2011, Learned Trial Court, after hearing the arguments
directed framing of charges and on 18.02.2011, charges Under
Section 420/467/468/471 all r/w 120-B IPC were framed. Charges
framed against revisionist, in nutshell, are that they entered into a
conspiracy of forging the Will dated 10.05.1996 of late Sh. Amulya
Chandra Ghosh for the purpose of cheating, his brother-the
complainant and in furtherance of which they forged the aforesaid
Will and got it registered with sub-registrar VII inducing him to
believe the existence of the Will:
8. Revisionist/Dr. Prasant Chakroborty filed a Crl.M.C. No.
440/2011 praying for quashing of FIR and charges. Revisionist/Ravi
Mohan Anand filed a Criminal Revision 196/2011 and Amarnath
Ghosh also filed a Crl. Rev. No. 228/2011 challenging the order of
framing of charges, wherein the Hon'ble High Court on 05.05.2011
was "pleased to stay the proceedings" and all these petitions were
disposed of on 08.10.2012, whereby liberty was granted by the
High Court to the revisionists to approach Sessions Court. Hence,
these two separate revision petitions are preferred by the three
accused, before this Court.
 170

Submissions
9. Sh. Sood, Ld. Counsel appearing on behalf of Sh. Amarnath
Ghosh Dastidar (A-1), submitted that he had filed a Probate Case
No. 386/06/03 on 27.02.2003 for obtaining probate of Will dated
10.05.1996 of his late father who expired on 16.12.1996. Probate
case was filed about 3 years prior to the registration of the FIR in
question. Admittedly, complainant as well as his sisters are
objectors and respondents in the aforesaid probate proceedings. It
is submitted that in Probate petition, petitioner filed the affidavits
by way of evidence of three witnesses and evidence of PWs was
recorded in the year 2006-2007. Testimony of PW-6 was recorded
on 19.08.2008. It is pointed out that order sheet dated 20.01.2009
in the said probate case shows that the petitioner's witness
(handwriting expert) was available on the date but the counsel for
the respondents (one of whom is complainant) sought
adjournments and subsequent order sheets of 21.04.2009,
12.08.2009 and 04.12.2009 (in the said Probate case) would reveal
delaying tactics of the respondents. It is submitted that due to
delaying tactics of the respondents in the Probate case, on
04.12.2009, Respondent's Evidence was closed and they were
proceeded ex-parte. Subsequently, ex-parte order was recalled. On
15.02.2012, and on 04.07.2012, last and final opportunity was
granted to respondents to complete RE. Again, last and final
opportunity for completion of RE was given on 16.11.2012 but, till
date RE has not been deliberately completed by respondents
(complainant-herein).
 171

10. Learned counsel urged that delaying tactics of the respondents

is apparent from the order sheets of Probate petition. He drew
attention of the Court towards portion of said orders. Portion of
said orders shown to the Court is reproduced below:
"PC No. 386/06 Amar Nath Ghosh vs. State
15.02.2012
"Ld. Counsel for respondent no. 2 to 6 prays for grant of
adjournment on the ground that the witness RW2 is not in the
town. Ld. Counsel for plaintiff opposes the same stating that
various opportunities have been taken by the witness on one
ground or the other. Be that as it may, in the interest of justice,
one and last final opportunity is granted to the respondent to
complete his RE on next date subject to a normal cost of Rs. 500/-
,"
ADJ-06 (Central) Delhi
04.07.2012 (jb)
04.07.2012
…..

"Put up for RE on 21.09.2012. Last and final opportunity."

ADJ-06 (Central) Delhi
04.07.2012 (jb)
16.11.2012
…..
"RW2 partly cross-examined and discharged for today. Further
cross-examination of RW2 is deferred at the request of the witness
on the ground that he has to meet an urgent work at ITO . No
further adjournment shall be granted.
 172

Last and final opportunity for completion of entire RE on

18.02.2013.
ADJ-06/Central/Delhi
16.11.2012 (pk)”
11. It is urged that impugned order has been passed in complete
disregard to the settled law with respect to the maintainability of a
criminal case alleging forgery of a Will, while the probate case is
pending. It is submitted that our Hon'ble High Court in "Ravinder
Kumar Jain & Ors. Vs. State & Anr.” held that only a Probate Court
is the competent Court to decide about the genuineness of the Will
and the judgment of the Probate Court is considered as a judgment
in rem. High Court held that Ld. M.M. should have asked the
complainant that the MM's Court was not the competent Court to
decide upon the genuineness of the Will and summoning order was
quashed with the directions that the petitioners / accused shall
move the Probate Court with a probate petition regarding the Will.
In case the Probate Court holds that the Will was not genuine, the
legal remedy would be available to the complainant to proceed
against the petitioner.
12. It is submitted that Hon'ble Supreme Court of India in "Sardool
Singh & Anr. v. Smt. Nasib Kaur” held that where the validity of a
Will is in issue in a civil suit, the party alleging that the Will is a
forged one, cannot be permitted to institute a criminal prosecution
till the pendency of the case before the Civil Court. Ld. Counsel also
relied upon Gurmeet Singh Chopra vs Taruna Chopa & Ors; Sunil
Gupta vs Kiran Girhotra
13. It is submitted that Hon'ble Supreme Court of India in "Syed
Askari Hadi Ali Augustine Imam & Anr. v. State an authority which
 173

is referred by respondent was called upon to decide whether

criminal proceedings deserved to be stayed as the Probate
proceedings were also pending. Hon'ble Supreme Court on facts,
found that the criminal case had been instituted much prior to the
initiation of the probate proceedings and hence the Hon'ble Court
permitted the criminal proceedings to continue inspite of the
pendency of the probate proceedings.
14. It is argued that decision in the aforesaid case by the Hon'ble
Supreme Court that the criminal proceedings should continue, was
based on the facts that the criminal case was instituted much prior
to the initiation of the probate proceedings, the conduct of the
appellant/accused and the stage at which the probate proceedings
are pending and that aforesaid three factors, which weighed with
the Hon'ble Supreme Court in arriving at the decision not to quash
or stay the criminal proceedings, when applied to the facts of the
present case would lead to a different result. It is argued that the
present case is clearly distinguishable on facts with the case before
the Supreme Court. It is humbly submitted that in the instant case,
due to the factum of probate proceedings having been initiated
much prior to the criminal proceedings, the delaying tactics by the
complainant/respondents in the probate proceedings and the
probate proceedings being in the final stages, the said judgment
would apply in favour of the petitioner. Without prejudice to the
aforesaid submission that the summoning order itself was bad in
law, alternatively, it is submitted that till the pendency of the
Probate Case, the Trial Court should not proceed with the trial
which deserves to be stayed arid postponed.
 174

15. It is contended that prior to filing of the present Criminal

Revision Petition, Ravi Mohan Anand, who had preferred Criminal
Revision Petition No. 196/2011 & the petitioner herein had
preferred Criminal Revision Petition No. 228/2011 before the
Hon'ble Delhi High Court against the order on charge. Hon'ble High
Court vide a speaking and detailed order dated 05.05.2011 in Crl.
Revision Petition No. 196/2011 was 'pleased to stay the Trial Court
proceedings’ in view of the pendency of the probate petition. It is
submitted that the order is binding upon this Court or at least has
substantial persuasive value in the adjudication of the present
petition. The relevant extract from the aforesaid order dated as is
follows:-
"4. The learned counsel for the petitioner has also placed
reliance on the judgment of Apex Court in case titled Sardool
Singh & Anr. Vs. Nasib Kaur 1987 (Supp) SCC 46, wherein it
has been observed by the Apex Court that when the question
of validity of the Will is subjudice criminal prosecution on the
allegation of the Will being forged cannot be instituted.
Although, the said observations of the Court have been
passed in the case where the facts are not given, the same
could not be treated as a precedent. Nevertheless, this is a
point which in my view merits consideration
8. In the meantime, the proceedings of the case bearing FIR
No. 471/2006 u/s 193/467/468/471 IPC registered by P.S. C.
R. Park. which are pending in the Court of Sh. Naveen Arora,
learned ACMM, shall remain stayed till the next date."
16. Sh. L. K. Upadhyay, Learned counsel appearing for
revisionist/Prashant K. Chakraborty submits that there is no
 175

evidence at all against revisionist Prashant K. Chakraborty, who is

attesting witness to the Will dated 10.05.1996 in question.
Attesting witnesses have been charge sheeted simple because they
have not supported the investigation. It is submitted that Will can
be proved by the attesting witnesses and here is a case, where
attesting witnesses have been made accused simply because they
have not supported the investigating agencies as noted in the
charge sheet and on the basis of a FSL report, which is only an
opinion, cannot take place of the testimony of attesting witnesses
in any case, there are Experts' reports, to the contrary including
report of Sh. Nehra, a renowned FSL expert which supports the
case of revisionists apart from report of Sh. B. N. Srivastava.
Attention of the Court is also drawn towards statements of
witnesses (five sisters of complainant) recorded u/s 161 Cr. P.C
which are verbatim the same, which seem to have been cut, copied
and pasted and mere glance of statements of witnesses would
show the tainted manner in which their statements are recorded
and the case has been unfairly investigated. It is submitted that in
the report prepared by Sh. T. R. Nehra. Forensic (document)
consultant, who worked as a head of the questioned document, a
Division of CFSL was filed in the Probate petition, after comparing
with the admitted signatures of the, Testator. wherein it has been
opined that question signatures appearing on the Will dated
10.05.1996, were of late Sh. Amulya Chandra Ghosh. It is
submitted that the report of this expert as well as one more expert
Mr. Sriwastav filed in the protest petition shows that the will is
genuine and furthermore the expert's opinion cannot take the place
 176

of substantive evidence of attesting witnesses, as required u/s 68

of Evidence Act.
17. Sh. A. K. Sen, Learned counsel for revisionist - Ravi Mohan
Anand, who is also an attesting witness to the Will in question
purported to be executed by one Shri Amulya Chandra Ghosh on
10.05.1996. It is submitted that this witness of Will, is not a
beneficiary in any manner, who had only signed as an attesting
witness on the request of the testator and Shri Ravi Mohan Anand
has been made an accused in this case, solely on the ground that
he did not support the investigation and Investigating Officer has
categorically stated this fact in the challan that the witness has not
supported the investigation and thus, he was made an accused
without any basis.
18. It is submitted that in the pending Probate case, before the
Additional District Judge at Tis Hazari, mediation proceedings were
held. Elder brother Bimalendu Ghosh (the complainant herein) tried
to pressurize the younger brother to settle according to his terms
which was declined and consequently later on, a police complaint
was filed against the younger brother as well as the witnesses to
the Will executed by their father on 10.05.1996. It is argued that
this aspect has not been considered by the Court below. It is
argued that statement of witnesses were recorded under Section
161 Cr.P.C. by the I.O.
Section 161(3) requires the I.O. to reduce into writing any
statement made to him in the course of an examination. The
statement of the sisters of the complainant are alleged to be
recorded as provided under Section 161(3). These statements
recorded under Section 161(3) Cr.P.C. at a glance would show as
 177

to how the investigation was conducted. The statements of each

witness reveals that the statements are in verbatim and are only
computerized ditto copies of a statement having everything same
including comma and full stop, common for all. It is submitted that
Learned Trial Court in the impugned order has referred to the Will
of the testator dated 07.08.1936 holding that the same was
bequeathed in favour of his widow and elder son to the extent of
half share each but the Ld. Court below did not consider that the
said observation was not correct, because the testator in the same
Will bequeathed a substantial portion of the property in favour of
his younger son Amarnath Ghosh, accused herein. It further goes
to show that the Ld. Court below did not take into consideration,
the deed of dedication executed by the testator on 21.12.1993
which is also a part of the record being relied upon by the
prosecution.
19. It is argued that it is the cardinal principle of law is that any
observation made by the Apex Court of India becomes law of the
country and all Courts below are duty bound to obey the same. Ld.
Counsel relied upon in a case reported in "Ishwari Prasad Mishra
Vs. Mohd. Isa”; “Shashi Kumar Banerjee & ors. vs Subodh Kumar
Banerjee"; "Magan Behari Lal vs State of Punjab”; "Bhagwan Kaur
Vs. Maharaj Krishan Sharma & Ors, and "Kamal Narain Ram Saran
Lal Vs. Ram Kishore Lal & Anr.”
20. It is urged that the Learned Trial Court has brushed aside all
the above observations and findings of the superior Courts in the
impugned order, with its own incorrect opinion by observing that
"in my opinion expert opinion is the best piece of evidence and can
be relied upon if proved on record with reasoning and justification
 178

even for the purpose of conviction of an accused persons as in

these type of cases the other evidence does not carry much value
unless they are coupled with expert opinion."
21. It is urged that above observation of Ld. Magistrate is contrary
to the view taken by the Apex Court of the country. Learned
counsel wondered that as to which of the opinion among the two,
one by the highest Court of India and the other by the Learned
Magistrate (Trial Court) is to be considered as law.
22. Per contra, Sh. Mittal, Learned counsel appearing for
complainant (respondent herein) submits that all the accused
persons since beginning have been trying to scuttle the criminal
trial despite the fact that GEQD. Shimla has opined that the will
dated 10.05.1996 produced by Amarnath Ghosh and signed by
accused Dr.Prasant Chakroborty and Ravi Mohan Anand as
witnesses, was not signed by Late Sh. A.C Ghosh. It is submitted
that petitioners, while filing the revision petition concealed the
factum of earlier orders passed by this Court wherein the prayer
for quashing of FIR and charge-sheet were declined on the similar
grounds as taken in the revision petition.
23. It is argued that one of the major grounds urged for quashing
the charges is the pendency of probate petition filed by Amarnath
Ghosh which as per the submissions of the accused persons is prior
in time, then the criminal proceedings, has been rejected in the
petition filed by the accused persons. It is submitted that accused
persons are protected, as Learned ASJ has directed the
continuation of the proceedings but had stayed the final outcome.
24. It is argued that Hon'ble Supreme Court in catena of judgments
including the Constitutional Bench Judgment in "Iqbal Singh
 179

Marwah & Anr V/s Meenakshi Marwah & Anr” held that there is no
bar if both the criminal proceedings and civil proceedings are
continued together. It is submitted that Judgment relied upon by
the petitioners in the case of "Ravindra Kumar Jain & Ors V/s State
& Anr." passed by Hon'ble Justice S.N.Dhingra is per-inquirium and
not applicable in the facts of the present case and has been passed
ignoring the law laid down by the Hon'ble Supreme Court in "Iqbal
Singh Marwah & Anr V/s Meenakshi Marwah & Anr" (supra) and
"Syed Askari Hadi Ali Augstine Imam V/s State (Delhi Admin)
(supra)".
25. Learned counsel for respondent further submits that Sardool
Singh's case (Supra) of the Supreme Court relied upon by the
petitioners was not approved by the Hon'ble Apex Court in case of
"Syed Askari Hadi Ali Augstine Imam Vis State (Delhi Admin)
(supra) wherein, Supreme Court observed that "no ratio however,
can be culled out therefrom. Why such a direction was issued or
such observations were made do not appear from the said decision.
Sh. Mittal, learned counsel, contended that the judgment in case
of Sardool Singh (supra) relied upon by the petitioners is passed
by a Division Bench and the same is also per-inquirium in view of
judgment passed by the Constitution Bench of Apex Court in "Iqbal
Singh Marwah & Anr V/s Meenakshi Marwah & Anr" (supra) and
Full Bench Judgment of the Apex Court in "Syed Askari Hadi Ali
Augstine Imam V/s State (Delhi Admin)" (supra). It is submitted
that law laid down by Hon'ble Supreme Court is binding and
judgments relied upon by the revisionists is not good law and not
binding on this Court. In support, Learned Counsel relied upon
"Sharad Kumar Aggarwal Vs State.”
 180

26. It is submitted that complainant and other witnesses are more

than 65 years of age and if the trial is not permitted to proceed
with or delayed, valuable evidence might be lost. Learned counsel
contended that Apex Court has time and again held that while
exercising Revisional Jurisdiction, Courts should not go into
intricate details as regards the merits of a matter and can interfere
only when there is any illegality or material irregularity or
impropriety in the order passed by the Lower Court and a revisional
Court cannot act as court of Appeal and re-appraise the merits of
the case. Learned counsel for respondent prayed that revision
petitions be dismissed and the Learned Trial Court be directed to
conclude the trial expeditiously.
Nature of Evidence
27. At the outset, it is pertinent to note the nature of evidence on
record, in this case. Prosecution witnesses listed in this case are
mainly five sisters of complainant, namely, Deepti Dutta, Geeta
Kuhar Roy, Tripti Saxena, Sweta Ray, Rita Atorthy. On perusal of
their statements u/s 161 Cr. P. C. this Court is in agreement with
the submissions advanced by learned Counsel for revisionists that
the statement of these witnesses are verbatim, stereotyped and
word by word, almost the same. Statement of Tarun Dutta, stamp
vendor is to the effect that he had sold the stamp paper on
01.04.1996 vide sl. no. 017 for the purpose of Will to one Amarnath
Ghosh Dastidar i.e. the testator. Apart from this, there is statement
of Jaishree- an advocate and the FSL report. Besides this, no other
incriminating evidence accused persons was brought to the notice
of the Court.
Redrawing of conclusion at different stages
 181

28. Earlier on filing of an application u/s 309 Cr. P.C the

pronouncement of Judgment in this case was stayed and Trial
Court is restrained to finally hear and dispose of the case vide order
dated 18.02.2010 of Learned ASJ. It may be noted that even the
said order observed that "the Judgment in the Probate case would
be of binding nature and may have its legal repercussions on
criminal case." The said order was maintained by the High Court
on 17.03.2010. The reason, why a fresh conclusion is required to
be drawn is that the orders dated 18.02.2010 and 17.03.2010 were
passed before framing of the charge and now vide order dated
05.02.2011, Trial Court has ordered to frame charges. Now, after
sifting and weighing material on record, this Court has to see the
legality and propriety of the impugned order. Legal position is well
settled that as the matter proceeds to the next stage, all the earlier
conclusions stand effaced and are required to be redrawn in
accordance with Law (reliance may be placed on para 41 "Nupur
Talwar vs CBI (2013) 1 SCC 465"). Now, the challenge in these
petitions is to the framing of charges, therefore, while exercising
revisional jurisdiction, this Court is also called upon to consider the
relevance of Judgment in probate case u/s 41 of Indian Evidence
Act and its effect and impact on framing of charges against accused
and likelihood of embarrassment to them in continuation of trial.
29. After hearing arguments advanced by Learned counsel for the
parties, the main point which emerges for determination in these
revision petitions, is whether in view of the pending previously filed
instituted probate petition by the accused (A-1), trial in this criminal
proceeding should be allowed to be continued or be postponed
when the "fact in issue in both the proceedings is the "genuineness
 182

and validity of Will dated 10.05.1996 purported to be executed by

the testator-Sh. Amulya chandra Ghosh and accused no. 1."?
Legal Position
In order to address the issue, relevant legal position may be noted
30. In "Gurmeet Singh Chopra vs Taruna Chopra & Ors. (supra) " it
was held that Probate Court has exclusive jurisdiction to adjudicate
upon the genuineness of a Will and even the civil Court has no
jurisdiction to go into the said question.
30.1 In "Sunil Gupta v. Kiran Girhotra (supra)", our High Court
reiterated that the Probate Court has exclusive jurisdiction to
determine the genuineness or otherwise of the Will and hence a
suit seeking cancellation and declaration with respect to the Will is
required to be stayed till the decision by the Probate Court.
30.2 In Ishwari Prasad Mishra vs Mohd. Isa (supra) Supreme Court
opined that, "Evidence given by an expert of hand writing can
never be conclusive because it is, after all, an opinion evidence".
In “Shashi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee
(supra)", it was held that. "The mere opinion of the expert cannot
override the positive evidence of the attesting witness". In "Magan
Behari Lal Vs. State of Punjab (supra). Supreme Court held that, it
is now well settled that expert opinion must always be received
with great caution none so with more caution than the opinion of
a hand writing expert it is unsafe to base a conviction solely on
expert opinion without substantial corroboration. This type of
evidence being opinion evidence is by its very nature, weak and
infirm and cannot of itself form the basis of a conviction.
30.3 In "Bhagwan Kaur Vs. Maharaj Krishan Sharma & Ors. (supra ).
Honble Apex Court held that "evidence of a hand writing expert
 183

unlike that of a finger print expert is generally of the frail

character". In "Kamal Narain Ram Saran Lal Vs. Ram Kishore Lal &
Anr(supra) it was observed that "It is common knowledge that,
handwriting of persons are never uniform when they are old".
30.4 In "Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao & ors”
Hon'ble Supreme Court held that, the burden of proof that the Will
has been validly executed and is a genuine document is on the
propounder. The propounder is also required to prove that the
testator has signed the Will and that he had put his signature out
of his own free will having a wound disposition of mind and
understood the nature and effect thereof. If sufficient evidence in
this behalf is brought on record, the onus of the propounder may
be held to have been discharged. But, the onus would be on the
applicant to remove the suspicion by leading sufficient and cogent
evidence if there exists any. In the case of proof of Will, a signature
of a testator alone would not prove the execution thereof, if his
mind may appear to be very feeble and debilitated However, if a
defense of fraud, coercion or undue influence is raised, the burden
would be on the caveator (See Madhukar D. Shende vs Tarabai
Shedage (2002) 2 SCC 85 and Sridevi and Ors. vs Jayaraja Shetty
and Ors. (2005) 8 SCC 784) Subject to above, proof of a Will does
not ordinarily differ from that of proving any other document.
30.5 In "Syed Askari Hadi Ali Augustine Imam & anr. Vs State”
(supra). Supreme Court considered previous judgments operating
in the field. In order to delve deep into the issue, it is necessary to
extract relevant portion o the judgment, which reads as under:-
9. "Indisputably, in a given case, a civil proceeding as also a
criminal proceeding may proceed simultaneously. Cognizance
 184

in a criminal proceeding can be taken by the criminal Court

upon arriving at the satisfaction that there exists a prima
facie case.

The question as to whether in the facts and

circumstances of the case one or the other proceedings
would be stayed would depend upon several factors including
the nature and the stage of the case.
10. It is, however, now well settled that ordinarily criminal
proceeding will have primacy over the civil proceeding.
Precedence to a criminal proceeding is given having regard
to the fact that disposal of a civil proceeding ordinarily takes
a long time and in the interest of justice the former should
be disposed of as expeditiously as possible. The law in this
behalf has been laid down in a large number of decisions.
In M. S. Sheriff & anr. Vs State of Madras and ors. (AIR
1954 SC 397), a Constitution Bench of this Court was seized
of a question as to whether a civil suit or a criminal case
should be stayed in the event both are pending; it was opined
that the criminal matter should be given precedence.
In regard to the possibility of conflict in decisions, it
was held that the law envisages such an eventuality when it
expressly refrains from making the decision of one Court
binding on the other or even relevant, except for certain
limited purposes, such as sentence or damages. It was held
that the only relevant consideration was the likelihood of
embarrassment.
 185

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 evidence brought before it and not
in terms of the evidence brought in the criminal proceeding.
The question came up for consideration in "K. G.
Premshanker vs Inspector of Police and anr." (2002(3) SCC
1975), wherein this Court inter alia held: "What emerges
from the aforesaid discussion is - (1) the previous judgment
which is final can be relied upon as provided under Sections
40 to 43 of the Evidence Act; (2) in civil suits between the
same parties, principle of res judicata may apply; (3) in a
criminal case, Section 300 Cr. P. C makes provision that once
a person is convicted or acquitted, he may not be tried again
for the same offence if the conditions mentioned therein are
satisfied; (4) if the criminal case and the civil proceedings are
for the same cause, judgment of the civil court would be
relevant if conditions of any of Sections 40 to 43 are satisfied,
but it cannot be said that the same would be conclusive
except as provided in section. 41. Section 41 provides which
judgment would be conclusive proof of what is stated
therein."
31. Further the judgment, order or decree passed in a
previous civil proceeding, if relevant, as provided under
Sections 40 and 42 or other provisions of the Evidence Act
then in each, the Court has to decide to what extent it is
binding or conclusive with regard to the matters decided
therein. Take for illustration, in a case of alleged trespass by
A on B's property, B filed a suit for declaration of its title and
 186

to recover possession from A and suit is decreed. Thereafter,

in a criminal prosecution by B' against A for trespass,
judgment passed between the parties in civil proceedings
would be relevant and the Court may hold that it conclusively
establishes the title as well as possession of B over the
property. In such case. A may be convicted for trespass. The
illustration to Section 42 which is quoted above makes the
position clear. Hence, in each and every case, the first
question which would require consideration is whether,
judgment, order or decree is relevant, if relevant its effect. It
may be relevant for a limited purpose, such as, motive or as
a fact in issue. This would depend upon the facts of each
case."
…………………………………….
11. Axiomatically, 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. We have noticed
herein before that Section 43 of the Evidence Act
categorically states that judgments, orders or decrees, other
than those mentioned in Sections 40, 41 and 42 are
irrelevant, unless the existence of such judgment, order or
decree, is a fact in issue, or is relevant under some other
provisions of the Act. No other provision of the Evidence Act
or for that matter any other statute has been brought to our
notice.
Another Constitution Bench of this Court had the occasion to
consider a similar question in "Iqbal Singh Marwah & Anr. Vs
 187

Meenakshi Marwah & anr." 2005 (2) JCC 768

wherein...........................................................
Relying inter alia on M. S. Sheriff, it was held:

32. "Coming to the last contention that an effort should be

made to avoid conflict of findings between the civil and
criminal courts, tis necessary to point that the standard of
proof required in the two proceedings are entirely different
Civil cases are decided on the basis of preponderance of
evidence while in a criminal case the entire burden lies on
the prosecution and proof beyond reasonable doubt has to
be given. There is neither any statutory provision nor any
legal principle that the findings recorded in one proceeding
may be treated as final or binding in the other, as both the
cases have to be decided on the basis of the evidence
adduced therein.”
The question yet again came up consideration in "P
Swaroopa Rani vs M. Hari Narayana Hari Babu", whurein it
was categorically held that:
13. "It is however, well settled that in a given case, civil
proceedings and criminal proceedings can proceed
simultaneously. Whether civil proceedings or criminal
proceedings shall be stayed depends upon the fact and
circumstances of each case."

12. Mr. Dwivedi, however, would urge that in a case of this

nature Section 41 of the Indian Evidence Act, 1872 would be
applicable. In support of his aforementioned contention place
 188

strong reliance on "Sardool Singh & anr. Vs Smt. Nasib Kaur"

(1987) (Supp.) SCC 146), Commissioner of Income tax,
Mumbai vs Bhupen Champak Lal Dalal & anr 2001 (1) JCC
328: ((2001) 3 SCC 459) and and Surinder Kumar & ors. Vs
Gian Chand & ors. [AIR1957 SC 875)
"Section 41 of Indian Evidence Act reads as under:
41. "Relevancy of certain judgments in probate, etc.,
jurisdiction- a final judgment, order or decree of a competent
court, in the exercise of probate, matrimonial admiralty or
insolvency jurisdiction which confers upon or takes away
from any person any legal character, or to be entitled to any
specific thing, not as against any specified person but
absolutely is relevant when the existence of any such legal
character, or the title of any such person to any such thing,
is relevant.

Such Judgment, order or decree is conclusive proof- that any

legal character which it confers accrued at the time when
such judgment, order or decree came into operation;
that any legal character, to which it declares any such
person to be entitled, accrued, to that person at the time
when such judgment, order or decree declares it to have
accrued to that person:
that any legal character which it takes away from any
such person ceased at the time from, which such judgment,
order or decree declared that it had ceased or should cease:
and that anything to which it declares any person to be
so entitled was the property of that person at the time from
 189

which such judgment, order to decree declares that it had

been or should be his property."
Section 41 of the Evidence Act 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 shall take a long time. As
and when a judgment is rendered in one proceeding subject
to the admissibility thereof keeping in view Section 43 of the
Evidence Act may be produced in another proceeding. It is
however, 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 civil proceedings.
…………………………………….
The question came up for consideration again before this
Court in "Sardool Singh & Anr. Vs Smt. Nasib Kaur (supra)",
wherein it was opined that
"A civil suit between the parties is pending wherein the
contention of the respondent is that no Will was executed
whereas the contention of the appellants is that a Will has
been executed by the testator. A case for grant of probate is
also pending in the Court of Learned District Judge, Rampur.
The civil Court is therefore, seized of the question as regards
the validity of the Will. The matter is sub judice in the
aforesaid two cases in civil Courts. At this juncture the
respondent cannot therefore, be permitted to institute a
criminal prosecution on the allegation that the Will is a forged
 190

one. That question will have to be decided by the civil court

after recording the evidence and hearing the parties in
accordance with law. It would not be proper to permit the
respondent to prosecute the appellants on this allegation
when the validity of the Will is being tested before a civil
Court............. This Will not come in the way of instituting
appropriate proceedings in future in case the civil Court
comes to the conclusion that the Will is forged one."
"No ratio, however, can be culled out therefrom. Why
such a direction was issued or such observations were made
do not appear from the said decision."
13. Herein, however criminal case had already been
instituted. Whether the same would be allowed to be
continued or not is the question......... The Court therein was
concerned with a case involving Section 42 of the Evidence
Act. The learned counsel may be correct as it was held that
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.
…………………………..
A Constitution Bench of this Court in Iqbal Singh
Marwah & anr. (Supra) also does not appears to have dealt
with this aspect of the matter.
The question, however would be as to whether despite
the same should we interfere with the impugned judgment.
We do not think that we should firstly, because the criminal
case was instituted much prior to the initiation of the Probate
proceeding and secondly, because of the conduct of the
 191

appellant and the stage in which the probate proceedings are

pending.
For the aforementioned purpose, it may not be relevant
for us to enter into the disputed question as to whether the
Will is surrounded by suspicious circumstances as the same
would appropriately call for decision in the testamentary
proceeding. Pendency of two proceedings whether civil or
criminal, however, by itself would not attract the provisions
of Section 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 Section 63 (c) of
the Indian Succession Act and Section 68 of the Evidence Act.
14. The FIR was lodged not only in regard to forgery of the
Will but also on the cause of action of a trespass. Appellant
admittedly is facing trial under Section 420, 468 and 448 of
the IPC. It is, thus. possible that even if the Will is found to
be genuine and that no case under Section 468 IPC is found
to have been made out, appellant may be convicted for the
commission of other offences for which he has been charged
against, namely, trespass into the property and cheating. It
is found that the appellant is guilt of trespass, he may be
asked to handover possession of the premises in question to
the complainant".
15. Exercise of such a jurisdiction furthermore is
discretionary. As noticed by several decisions of this Court,
including two Constitution Bench decisions, primacy has to
 192

be given to a criminal case. The FIR was lodged on

19.09.2002. No only another civil suit is pending, as noticed
herein-before, but a lis in relation to mutation is also pending.

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 the genuineness
of the Will. It is alleged that the Will was registered at
Hazaribagh after the death of the testarix. 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 as noticed herein-
before charge sheet has been filed and cognizance of the
offence has been taken.
We, therefore, are of the opinion that it is not a fit case
where we should exercise our discretionary jurisdiction under
Article 136 of the Constitution of India having regard to the
facts and circumstances of the present case."

(emphasis supplied)

31. Therefore, it is obvious that "Syed Askari Hadi Ali Augustine

Imam Vs. State (Delhi Admn.) (supra)" relied upon by the
respondent, Hon'ble Supreme Court held that in that case, the FIR
 193

was lodged not only in regard to forgery of the Will but also on the
cause of action of a trespass. It was observed that "appellant
admittedly was facing trial not only u/s 420 & 468 but also u/s
Section 448 of the IPC. It is, thus, possible that even if the Will was
found to be genuine and that no case under Section 468 of the IPC
is found to have been made out, appellant may be convicted for
commission of other offences for which he was charged against,
namely trespass into the property and cheating. Thus. Syed
Askari's case was decided in its peculiar factual matrix. In "Sardool
Singh's case (supra)", "a civil suit between the parties was pending
wherein the contention of the respondent was that no Will was
executed whereas the contention of the appellants is that a Will
has been executed by the testator. A case for grant of probate was
also pending in the court of District Judge, Rampur. Civil Court was
seized of the question as regards the validity of the Will. In these
circumstances, it was noted that juncture, respondent cannot be
permitted to institute a criminal prosecution on the allegation that
the Will is a forged one. It was observed that it would not be proper
to permit the respondent to prosecute the appellants on this
allegation when the validity of the Will is being tested before a civil
court. Criminal proceedings pending in the Court of the Judicial
Magistrate. Chandigarh was quashed and it was further observed
that this will not come in the way of instituting appropriate
proceedings in future in case the civil court comes to the conclusion
that the Will is a forged one.
32. No doubt, in Sardool Singh's case detailed facts were not given
and also previous precedents operating in the field were not
referred and analyzed therein but, this Court finds, no merits in the
 194

contention advanced by Learned counsel for respondent that

observations made by Hon'ble Supreme Court in Sardool singh's
case were 'per inquirium' or observations made therein were 'over-
ruled’. In Syed Askari's case, it was only noted that no ratio can be
culled out therefrom. 'Ratio' is a binding principle which emerges
from a course of decisions.
33. Now, adverting to the ratio of M. S. Sheriff's case, which has
been referred and quoted in Syed Askari's case. K. G.
Premshanker's case and in Iqbal Singh Marwah's case, it is
necessary to understand the context, in which observations were
made. In short, the facts of that case were, that the two persons,
namely, Govindan and Damodaran had filed petitions u/s 491 of
Code of criminal procedure for release, claiming that they had been
illegally detained by the two sub-inspectors of Police (appellants in
the said case). Each of the sub-Inspector sworn an affidavit in
support of his return. In view of conflict between their two sets of
statements, High Court directed District Judge to make an inquiry.
District Judge reported that the statement by the two sub-
inspectors were correct but the High Court disagreed and after an
elaborate examination of evidence, reached the conclusion that
petitioners were telling truth and not the sub-inspectors.
Petitioners applied to High Court u/s 476 Cr P. C. (of the old Code,
now Section 340 Cr.P.C) for prosecution of sub-inspectors for
perjury for offence u/s 193 of IPC. Their applications were granted
and Deputy Registrar of High Court was directed to make necessary
complaints. Sub-inspectors appealed against the aforesaid order
and against the order u/s 476 Cr.P.C. but Supreme Court found no
 195

reason for interfering with the High Court's order in directing

prosecution of the sub-Inspector u/s 476 Cr. P.C.
34. In the aforesaid, factua, scenario, it was observed:
14. "...... It was said that the simultaneous prosecution
of these matters will embarrass the accused... but we can
see that the simultaneous prosecution of the present criminal
proceedings out of which this appeal arises and the civil suits
will embarrass the accused We have therefore to determine
which should be stayed."
15. As between the civil and the criminal proceedings we are
of the opinion that the criminal matters should be given
precedence. There is some difference of opinion in the High
courts of India on this point. No hard and fast rule can be
laid down but we do not consider that the possibility of
conflicting decisions in the civil and criminal Courts 's a
relevant consideration. The law envisages such an
eventuality when it expressly refrains from making the
decision of one Court binding on the other, on even relevant,
except for certain limited purposes, such as sentence or
damages. The only relevant consideration here is the
likelihood of embarrassment.
16.. Another factor which weighs with us is that a civil
suit often drags on for years and it is undesirable that
a criminal prosecution should wait till everybody
concerned has forgotten all about the crime. The public
interest demand that criminal justice should be swift
and sure; that the guilty should be punished while the
events are still fresh in the public mind and that the
 196

innocent should be absolved as early as is consistent

with a fair and impartial trial. Another reason is that it
is undesirable to let things slide till memories have
grown too dim to trust. This, however, is not a hard
and fast rule. Special considerations obtaining in any
particular case might make some other course more
expedient and just. For example, the civil case or the
other criminal proceeding may be so near its end as to
make it inexpedient to stay it in order give precedence
to a prosecution ordered under Section 476 But in this
case we are of the view that the civil suits should be
stayed till the criminal proceedings have finished.
35. Thus, reading M. S. Sheriff's case would show that the
civil suit which was stayed was for 'damages for wrongful
confinement' and, it was noted that the simultaneous
prosecution of the criminal proceedings i.e. (the proceedings
u/s 476 of the Code directed by High Court, out of which the
appeal before the Supreme Court arose) and the civil suit for
damages will embarrass the accused and that the only
relevant consideration, in the said case was the likelihood of
embarrassment.
36. Thus, principle which can be culled out from the analysis
of existing judgments, is that stay of proceedings or
postponement of proceeding. in exercise of jurisdiction under
Section 309 Cr.PC is permissible. There is no such principle
that stay of one or other proceeding can never be granted.
It would depend on the facts of each case and on special
consideration obtaining in a particular case. No hard and fast
 197

rule can be laid down as to which of the proceedings-civil or

criminal must be stayed. It was noted that possibility of
conflicting decisions in the civil or criminal courts cannot be
considered as a relevant consideration for stay of the
proceedings as law envisaged such as eventuality. Likelihood
of Embarrassment was considered to be the only relevant
consideration and having regard to certain facts, Hon'ble
Apex Court found it expedient in M. S. Sheriff's case to stay
the civil proceedings. Hon'ble Supreme Court made it clear
that this was not a hard and least rule, special considerations
obtaining in any particular case might make some other
course more expedient and just.
37. Now, in K. G. Premshanker's case, the appellant had
moved the apex Court for quashing of prosecution against
them. The factual matrix of this case is noteworthy. One
Madhwan, who was arrested in a case u/s 228-A IPC and u/s
7 (1) (d) of protection of Civil Rights Act was taken in a police
jeep to the police station and on the way he was assaulted
by the policemen. He complained that he was assaulted by
the policemen. He was enlarged on bail. He got himself
admitted in the hospital and lodged the FIR against sub-
Inspector and other policemen of Kannaur. The case
registered against Madhwan was quashed by High Court. As
no progress was made in the FIR, registered by Madhwan,
High court directed DIG of police, Northern range to
investigate the police. Thereafter, the Court entrusted the
investigation to CBI. Thereafter, final report was filed before
CJM, Arnakulum against 12 accused including appellant- K.
 198

G. Premshanker for the offences punishable u/s

324/341/357/219 and 166 IPC. Appellant filed an application
for dropping of proceedings. High Court found that it was not
a fit case for jurisdiction u/s 482 Cr.P C Appellant had raised
another contention before High Court that de-facto
complainant Madhwan had filed a suit for damages before
the sub-Court Tellicherry against the appellant and other,
which was dismissed by Trial Court and against which an
appeal was preferred. It was contended that as the suit was
dismissed, the decision rendered by the Civil Court will prevail
and therefore, criminal prosecution against appellant and
others was required to be dropped.
38. Hon'ble Supreme Court considered Sections 40,41,42 and
43 of the Evidence Act, 1872 and observed that the decision
in M. S. Sherif's case would be binding wherein it has been
held that no hard and fast rule can be laid down and that
possibility of conflicting decision in civil and criminal courts is
not a relevant consideration.
39. It was further observed that in each and every case, the
first question which would require consideration is, whether
judgment, order or decree is relevant; if relevant, its effect.
This would depend upon the facts of each case. In K. G.
Premshankar, the effect of Sections 40 to 43 of the Evidence
Act has been noted that, if the criminal case and civil
proceedings are for the same cause, judgment of the civil
Court would be relevant if conditions of any of Sections 40 to
43 are satisfied but it cannot be said that the same would be
conclusive except as provided in Section 41. Section 41
 199

provides which judgment would be conclusive proof of what

is sated therein. It is important to note that in both cases,
i.e. M. S. Sherrif's case and in K. G Premshanker's case,
pending civil suits were for damages and Section 41 of Indian
Evidence Act was actually not involved therein and the Court
was concerned with facts involving Section 42 of Evidence
Act.
40. Court has to find out 'material facts' of the case in hand
as well as material facts' of case referred as precedent. It is
well settled that a Judgment is binding precedent for what it
decides and not what logically follows from it. In "Bhavnagar
University vs Palitana Sugar Mill (P) Ltd." the following
observations were made.
"A decision, as is well known, is an authority for which it
is decided and not what can logically be deduced therefrom.
It is also well settled that a little difference in facts or
additional facts may make a lot of difference in the
precedential value of a decision."
41. In Syed Askari's case, aforesaid cases were discussed and
observations made therein were quoted with approval. It was also
noted that "no ratio could be culled out from Sardool Singh's case
(wherein, it does appears that Section 41 of Evidence Act came
into 'play' as validity of Will was being tested in a pending Probate
case), but, it is obvious that Syed Askari's case was decided on the
facts.
42 In Ravinder Kumar's Judgment (supra) decided on 10.09.2010,
by our High Court, Learned Metropolitan Magistrate had
summoned the petitioner u/s 420/463/464/467/468/469/471/474
 200

IPC relying upon a Will dated 28.12.2003 executed by his late

father as the last and genuine Will. Complainant alleged that the
Will relied upon his late father was a forged document. In this case,
Section 41 came into the picture and Hon'ble High Court held that
only the Probate Court is the competent Court to decide about the
genuineness of the Will and the Judgment of the Probate Court is
considered as a Judgment in rem and that is why it is always
advisable that if there is dispute about the genuineness of a Will,
the same should be carried to the Probate Court. It was noted that
in case, the Probate Court holds that the Will was not genuine, the
legal remedy would be available to the respondent to proceed
against the petitioner. To my mind, it cannot be observed, as
desired by Learned counsel for respondent, that this case is also
‘per incuriam’ and thus, not binding on this Court.
43. Therefore, the question as to whether in the facts and
circumstances of the case, one or the other proceedings would be
stayed or postponed would depend upon several factors including
the nature and the stage of the case. If criminal and civil case are
for the same cause, Judgment, decree or order referred in Section
41 of Indian Evidence Act, which pertains to probate of a Will shall
not only be relevant but shall also be conclusive.
44. "Likelihood of embarrassment" to a party is held to be a
relevant consideration. The question to be considered is that what
is the meaning of term likelihood of embarrassment" It is therefore
necessary to understand the meaning of the term 'embarrassment.
How "embarrassment" can be conceived of in criminal proceedings.
In this context, relevant extracts of Section 309 Cr.PC may be
noted:-
 201

45. "Section 309 Power to postpone or adjourn proceedings.

(1) ………..
(2) if the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or
trial, it may, from time to time for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit.
for such time as it considers reasonable……”
46. It is noticeable from a reading of Section 309 Cr.PC, that the
discretion to exercise such powers may arise after taking
cognizance or on commencement of trial. A trial commences with
the framing or explanation of charges. A comprehensive power and
a Judicial discretion has been vested in the Court to postpone
and/or adjourn the proceeding in an appropriate case. The
question, therefore, is when and why such power has to be
exercised. Now. So far as embarrassment is concerned, neither
Code of Criminal Procedure lays down specifically as to what
'embarrassment actually means nor the term has been elucidated
in M. S. Sheriff's or subsequent Judgments which have quoted with
approval the said 'expression', when Court confronts a situation as
in the present case. Court is required to determine whether the
continuation of proceedings can be said to be embarrassing and
should it be allowed to continue or not. What would be the
consequences of continuation of such a proceeding and further, if
it allowed to be postponed then for, how long?
47. In order to find an answer as to what could mean 'embarrassing
provisions of. Section 41 of Indian Evidence Act are significant, in
 202

the context of instant case, as it clearly speaks inter-alia of Probate

cases which are judgments in rem and these judgments are
conclusive proof of the status or legal character and a 'Will' has an
effect of conferring, declaring, accruing or taking away any right to
property to any person.
48. If the circumstances, mentioned in section 41, are shown to be
relevant in a criminal proceeding, running simultaneously with
Probate 'proceeding, then accused apprehends likelihood of
embarrassment and continuation of criminal proceeding may be
prejudicial to his interest. The ratio laid down in the case of MS
Sheriff (supra), more particularly with reference to facts and
circumstances of the case, has to be understood in the context of
relevancy of judgments u/s 41 of the Evidence Act. It will cause
embarrassment to the accused persons (revisionists herein), if they
are forced to face a trial in a criminal proceeding on the same 'facts
in issue' prior to the decision of previously instituted petition
pending before the Probate Court, particularly, wherein attesting
witnesses themselves are made accused. In the present criminal
case 'fact in issue' is validity and genuineness of the Will dated
10.05.1996 and the material point for determination is "whether
this Will is forged or genuine" and exactly similar question is
involved to be determined, in the Probate petition. Thus, as noted
above, finding of Probate Court will be binding on the Criminal
Court and in the instant case, special considerations are that
criminal case is only at its initial stages, whereas Probate
proceeding is at an advanced stage, therefore, it is a fit case for
the postponement of the present criminal proceedings, till the
decision in the Probate proceedings.
 203

49. The postponement of the case shall be co-terminus with the

end of pending Probate proceedings before the Probate Court. In
case, decision in the Probate petition is such that the Will in
question is found to be genuine and stands proved then, the status
so declared will not only be relevant but Will have a direct bearing
on the allegations of forgery of Will in this criminal base, at the
stage of charge'.

Conclusions
50. To conclude, legal and factual position which emerges from
the aforesaid analysis Is as under:
(i) In a given case, civil proceedings and criminal
proceedings can proceed simultaneously and one of the
proceedings can be stayed or postponed u/s 309 Cr P. C.
Whether civil proceedings or criminal proceedings shall be
stayed depends on the facts and circumstances of each case.
(ii) There is no hard and fast rule. Course, which is expedient
and just depends upon special consideration obtaining in a
case and in each and every case, the question for
consideration is whether Judgment or order of the other
proceeding is relevant and if relevant, then its effect.
(iii) Judgment in Probate petition is Judgment in rem and is
relevant u/s 41 Indian Evidence Act. grant of Probate is a
Judgment in rem and conclusive and binds not only parties
but the entire world and Probate Court alone has the
jurisdiction to adjudicate upon proof or validity of a Will
propounded by the executrix.
 204

(iv) Askari Hadi Ali's case relied upon by respondents

distinguishable as in the said case criminal case was
instituted prior to Probate petition and there not only conduct
of petitioner and stage of proceedings were considered but
also the fact that apart from forgery, allegations of trespass
were existing, whereas in the instant case only the validity
and genuineness of Will is in question in both the cases.
(v) In Iqbal Singh Marwah's case relied upon by respondent,
the question which fell for consideration was as to whether a
Bar under section 195 (1) (b) (i) and (ii) operates for taking
cognizance, when a complaint is filed alleging that Will tiled
by accused in a Probate case was forged and it was held that
the Bar would not operate, if the Will is forged before its filing
in the Court. Hence, the observations in the said case have
no bearing on the facts and circumstances of present case.
Even, in Askari's case, it was noted that Iqbal Singh Marwah's
case does not appear to have dealt with this aspect of the
matter i.e. Section 41 of Evidence Act.

(vi) Legal position is well settled that evidence given by

expert of handwriting can never be conclusive because it is
after all an opinion evidence, which by its very nature is weak
& infirm and it is unsafe and cannot of itself form the basis
for conviction, therefore, observation made by the Learned
Trial Court in the impugned order that "expert opinion is best
piece of evidence and can be relied upon ever for the purpose
of conviction of accused or in these type of cases, other
evidence does not carry much value", are erroneous.
 205

(vii) Legal principles in regard to proof of a Will are no longer

res-integra. A Will has to be proved having regard to the
provisions contained in clause (c) of Section 63 of the Indian
Succession Act. 1925 and Section 68 of the Indian Evidence
Act, 1872, in terms whereof the propounder of a Will must
prove its execution by examining one or more attesting
witnesses. Where, however, the validity of the Will is
challenged on the ground of fraud, coercion or undue
influence, the burden of proof would be on the caveator.

(viii) In view of Section 68 of Indian Evidence Act, revisionist-

Amarnath Ghosh (A-1) has to be given an opportunity to
prove the Will, in the Probate 'petition by examining attesting
witnesses, but in this criminal proceedings, attesting
witnesses cannot be examined as prosecution witnesses,
being arraigned as accused.
(ix) In the present, case, Probate petition was filed earlier in
point of time by revisionist-Amarnath Ghosh (A-1) on
27.02.2003, whereas, criminal proceedings, at the instance
of complainant (respondent herein) was registered on
25.04.2006 vide FIR no. 171/2006, at PS C. R. Park. Delhi i.e.
after three years of initiation of Probate proceedings and
secondly Probate petition is pending at the fag end i.e. stage
of respondents’ evidence whereas in criminal proceedings,
trial has yet to begin.
(x) Continuation or commencement of trial in this case will
greatly prejudice the accused persons herein and there is
likelihood of embarrassment to revisionist, as 'facts in issue'
 206

before the Probate Court and charges in criminal proceedings

are intimately linked and therefore, in the factual setting of
the case, till a final decision is given by Probate Court, it will
not only be advisable but also necessary in the interest of
Justice, not to proceed further with the trial against the
revisionists.
51. In the result, this Court is of the considered view that interest
of justice requires that commencement of trial in this case should
be stayed and postponed till the announcement of Judgment by
the Probate Court in the pending previously instituted Probate
proceedings. Parties shall place on record certified copy of
judgment within two weeks of passing of the order therein and
thereafter, this criminal proceeding arising out of FIR No.
171/2006. PS Chittranjan Park shall be revived and Learned Trial
Court shall re-hear the parties afresh on the point of charge. in the
light of findings and conclusions arrived at by the Probate Court.
Revision petitions are disposed of in aforesaid terms.
52. TCR be sent back along with a copy of this order. Revision files
be consigned to Record Room.
announced in the
open Court on 27 September, 2013

(Vinay Kumar Khanna)

Additional Sessions Judge-04 &

Special Judge (NDPS) South East,

Saket Courts/New Delhi

//True copy//
 207

Annexure-P/12
Delhi High Court Mediation and Conciliation Centre Delhi High
Court, Sher Shah Road, New Delhi
CRL, M. C. No. 1303/2014
Date: 24.09.2019
IN THE MATTER OF:
Bimalendu Ghosh Dastidar -Petitioner

VS State & Ors. -Respondents

Report

Disputes and differences had arisen between the parties and the
above matter was filed before the Hon'ble High Court of Delhi.

The matter was referred to Samadhan (Delhi High Court Mediation

and Conciliation Centre) vide an order dated 19.08.2019 passed by
Hon'ble Mr. Justice Sunil Gaur.

The parties agreed that Mr. A. S. Chandhiok, Senior Advocate

would act as their Mediator in the above matter.

Mediation sessions were held with the parties and/or their

respective counsel on 28.08.2015, 04.09.2015, 07.09.2015,
05.10.2015, 15.10.2015, 17.10.2015, 23.02.2016, 04.08.2017,
06.08.2017, 18.09.2017, 23.10.2017, 17.11.2017, 15.12.2017,
23.03.2018, 17.05.2018, 11.04.2018, 08.04.2019, 22.05.2018,
23.05.2019, 31.05.2018, 01.06.2019, 16.07.2018, 29.07.2019,
20.08.2018, 28.08.2019, 17.09.2019 and 24.09.2019.

Parties are open to settlement and negotiated settlement is

possible in case some more time is granted, subject to the approval
of this Hon'ble Court. Next date for Mediation is fixed for
26.09.2019 at 3:30 p.m.

Accordingly, the report is being submitted to the Hon'ble Court for

appropriate orders

(AS. Chandhiok)
Sr. Adv. /Mediator //True copy//
 208

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRL ____________ 2024
IN
SPECIAL LEAVE PETITION (CRL.) NO OF 2024

IN THE MATTER OF:

Amarnath Ghosh Dastidar ...Petitioner

Versus

Bimalendu Ghosh Dastidar & Ors Respondents

Application Seeking Exemption From Filing Certified Copy Of The

Impugned Judgment

TO

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICE OF THE

HON’BLE SUPREME COURT OF INDIA

THE HUMBLE APPLICATION OF THE

PETITIONERS ABOVENAMED

Most Respectfully Showeth:

1. The present Special Leave Petition is being preferred against

the Impugned Order and Judgment dated 05.12.2023 passed

by the Hon’ble High Court of Delhi at New Delhi in Crl. M.C.

 209

1303 of 2014, whereby the Hon’ble High Court erroneously set

aside the impugned judgment.

2. The Petitioner has stated the facts of the case and the

grounds arising therefrom in the accompanying Special Leave

Petition and the same may be treated as part and parcel of

this Application.

3. That it is further submitted that due to paucity of time and

the old age of the Petitioner, the Certified Copy of Impugned

Judgment & Final Order dated 05.12.2023 passed by the

Hon’ble High Court of Delhi at New Delhi in Crl. Misc.

1303/2024 & Crl. M.A. 4416/2014, could not be procured.

4. That it is further submitted that the Petitioner has filed a

downloaded copy of the Impugned Judgment and Order dated

05.12.2023.

5. In the interest of justice the Petitioner may be exempted

from filing Certified Copy of the Arising out of Impugned

Judgment & Final Order dated 05.12.2023 passed by the

Hon’ble High Court of Delhi at New Delhi in Crl. Misc.

1303/2024 & Crl. M.A. 4416/2014.

 210

PRAYER

It is therefore most respectfully prayed that this Hon’ble Court

may be pleased to:

1. Exempt the petitioner from filing the Certified Copy of the

Arising out of Impugned Judgment & Final Order dated

05.12.2023 passed by the Hon’ble High Court of Delhi at New

Delhi in Crl. Misc. 1303/2024 & Crl. M.A. 4416/2014.

2. Pass such other and further orders as this Hon’ble Court

may deem fit and proper in the interest of justice.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY

FILED BY :

FILED ON: 10/07/2024 (ADEEL AHMED)

Advocate for the Petitioner
 211

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRL _______ 2024
IN
SPECIAL LEAVE PETITION (CRL.) NO OF 2024

IN THE MATTER OF:

Amarnath Ghosh Dastidar ...Petitioner

Versus

Bimalendu Ghosh Dastidar & Ors Respondents

Application For Condonation Of Delay In Filing the SLP

TO

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICE OF THE

HON’BLE SUPREME COURT OF INDIA

THE HUMBLE APPLICATION OF THE

PETITIONERS ABOVENAMED

Most Respectfully Showeth:

1. The present Special Leave Petition is being preferred Arising

out of Impugned Judgment & Final Order dated 05.12.2023

passed by the Hon’ble High Court of Delhi at New Delhi in Crl.

Misc. 1303/2024 & Crl. M.A. 4416/2014, whereby the Hon’ble

High Court erroneously set aside the impugned judgment.

 212

2. The Petitioner has stated the facts of the case and the

grounds arising therefrom in the accompanying Special Leave

Petition and the same may be treated as part and parcel of

this Application.

3. That it is further submitted that the present delay in filing

has been as the Petitioner is a senior citizen and on account of

extreme stress, suddenly started with various health issues

and presently also suffering from various ailments because of

which he had to visit hospitals time and again to control them,

on account of which reason he was not in a physical and

mental frame of mind to pursue his matter timely.

4. Therefore, it is most respectfully submitted that the delay in

filing has neither been intentional, nor deliberate but on

account of bonafide reasons and considering the aforesaid

submissions the delay of ______ days approximately occurred

in filing the present Special Leave Petition arising out of

Impugned Judgment & Final Order dated 05.12.2023 passed

by the Hon’ble High Court of Delhi at New Delhi in Crl. Misc.

1303/2024 & Crl. M.A. 4416/2014 may kindly be condoned in

the interest of justice as otherwise the Petitioner shall suffer

 213

an irreparable loss whereas the Respondent will not suffer any

prejudice.

5. That the present Application is bona fide and has been made

in the interest of justice.

PRAYER

It is therefore most respectfully prayed that this Hon’ble Court

may be pleased to:

1. Condone the delay of _____ days approximately occurred

in filing the Present Special Leave Petition against Impugned

Order and Judgement dated 05.12.2023 passed by the Hon’ble

High Court of Delhi at New Delhi in Crl. M.C. 1303 of 2014.

2. Pass such other and further order(s) as this Hon’ble Court

may deem fit and proper in the circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY

FILED BY :

FILED ON: 10/07/2024 (ADEEL AHMED)

Advocate for the Petitioner
 214
I DELHI ISECTION: II
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL APPELLATE / ORIGINAL JURISDICTION
I.A./CR.M.P.NO ....................... OF 2024
IN

Special Leave Petition/W. P. /

T.P./ R.P. / C.A. / C.P. CIVIL/CRL. NO. Diary No. OF 20 24

IN TIIE MATIER OF:

Amamath Ghosh Dastidar ... Petitioner[s]

Versus
Bimalendu Ghosh Dastidar & Ors.
..Respondent[s]
-----------------------
INDEX

I Particulars j Copies j Court Fees I.

1. Synopsis & List of Dates 1+1 f,
/

Order copy 1+1

2.
3. SLP. with Affidavit 1+1
Annexures 1+1
4.
Application
5.

6. Vakalatnama

7.
~·

COURT FEE DETAILS TOTAL: I -

(ADEEL AHMED)
Advocate for the Petitioner/Respondent (s)
14, Lawyers Chambers
Supreme Court of India
FILED ON I 0.07 /02/2024 NEW DELHI 110 001
PLACE : NEW DELHI Code No.2734
Ph. No. 23389847
adeelbox@gmail.com
0
Soumitra Bairagi
I.C.No.6624
I
"' 9716145269(M)
N 1,'R

iJ<
215

VAKA LATN AMA

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CRL ORIGINAL
SPECIAL LEAVE PETITION [CIVIL/CRL] NO. _ _ _ _ _ OF
TRANSFER/WRIT PETITION [CIVIL/CRL] NO. OF
APPEAUREVIEW/CONTEMPT [CIVIL/CRL] NO. OF

Versus
2aj
-+-L.J..r___;_~....;;,_:;___._.L...1-=--.
;~~~~-f.J...:.--+---,!..~-=---~
_ r_RESP ON DENT[S]
- c t_

I/We
Petitioner[s]/Appellant[s]/Respondent[s] in the above Petition/Appeal hereby
the Y"
appoint and retain _ _ _ _ _ _ Advocate, Supreme Court, to act and appear
for me/us in the above Petition/Appeal and on my/our behalf to conduct and
prosecute the same and all the proceedings that may be taken in respect of any
application connected with the same or any decree or order passed therein,
including proceeding in taxation and application for Review, to file and obtain
return of documents and to deposit and receive money on my/our behalf in the
above Petition/Appeal an to represent me/us and to take all necessary steps on
my/our behalf in the above matter. I/We agree to ratify all acts done by the
aforesaid, Advocates in pursuance of this authority. I/We further authorise him
to engage any other Advocate(s) on my/our behalf or to enter into agreement or
to agree for arbitration.
5 /J,
Dated this the ___ ______..,__ _ _ day of

Accepted

Advocate
:Jf_D
Ar1Vot.c:Jlt:
14, lawy::rr's Charnr.,;.-r
{;~,r•ame - )Urt of /n,'i
'_ p
t,i.11
~t.
Supreme Court r~~w D61ni 11 ooo Petitioner s]/Appellant[ s]
Code No. 21-~. 1-'h 2J ,1 _
Respondent[ s]
To
The Registrar,
Supreme Court of India
New Delhi.
Sir,
Kindly entered my appearance on behalf of the
petitioner(s) / respondent( s).
ADEELAHMED
Advocate
,'-------, J4;--l~~ t-P.+,~, ._._-
J
Advocate for t t s)
New lhi-11 0001
C~e No 273'4. Ph; 23 38984 ~"f
 216

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. M.C. N01303 OF 2014
IN THE MATTER OF :
Amarnath Ghosh Dastidar ...Petitioner

Versus

Bimalendu Ghosh Dastidar & Ors Respondents

MEMORANDUM OF PARTIES

1. STATE
THROUGH NCT OF DELHI
2. AMARNATH GHOSH DASTIDAR
S/O SH.A.C GHOSH DASTIDAR
R/O B-138, SARITA VIHAR,
NEW DELHI.
3. PRASHANT KUMAR CHAKRABORTY S/O
LATE SH.P.C. CHAKRABORTY,
R/O B-234, C.R. PARK, NEW DELHI.
4. RAVI MOHAN ANAND
VERSUS

SH. BIMALENDU GHOSH DASTIDAR

S/O LATE SH.AMULYA CHANDRA GHOSH DASTIDAR
R/O G-1224, C.R. PARK, NEW DELHI-110019 PETITIONER
 217

S/O MAJOR (RETD.) R.N. ANAND,

R/O D-11, VIVEK VIHAR, NEW DELHI. RESPONDENTS

NEW DELHI
DATED :THROUGH