T.P.S. Chawla, J.
(1) Chand Kiran Arcra was married to Kiran Arora (nee Khanna) on 5th December, 1970. They had two children: a son was born on 1st October 1971, and a daughter on 2nd November 1973. On 3rd January 1974, Chand Kiran died. After his death, his wife and two children continued to reside in the house at BF-27, Tagore Garden, New Delhi, along with his parents and other members of the family, as they had done when he was alive. The house stood in the joint names of Chand Kiran and his brother Kanwal Kishore. Besides this, Chand Kiran was also a partner in a firm started by his father Ram Parkash Arora.
(2) It appears that a few months after the death of Chand Kiran, his wife began to claim his property for herself' and her children. This antagonised Ram Parkash Arora, and the relations between them became very strained. Ultimately, on 1st June 1974, Kiran Arora left the house with her two children and went to stay with her father in his house at Jawahar Nagar, Delhi. She and her children have lived there ever since.
(3) On 14th October 1974, Ram Parkash Arora made an application, for the grant of probate of a will dated 26th December 1973, alleged to have been executed by Chand Kiran. (Later, the application was, amended to ask for letters of administration with the will annexed because Ram Parkash Arora had not been appointed an executor by the will). The application was opposed by Kiran Arora on behalf of herself and her children. She said that the will was forged. After a protracted trial the District Judge dismissed the application on 24th February, 1977. He held that it had not been proved that the will had been executed by Chand Kiran Arora. An appeal against that order was dismissed by B. C. Misra, J., on 28th September 1977. He gave a positive finding that the will was forged. A further appeal to a Division Bench was dismissed in liming on 12th January 1978. I was told that an application for special leave to appeal to the Supreme Court was dismissed on 11th December 1978.
(4) Relying on the terms of the alleged will, Ram Parkash Arora also filed an apphcation on 19th March 1975 for being appointed the guardian of the minor son of Chand Kiran. This application was also opposed by Kiran Arora. The application was withdrawn on 9th February 1978. By that date, the will had been held to be forged and all appeals in the probate matter had been dismissed. Thus, the very basis of Ram Parkash Arora's application for being appointed the guardian had been destroyed. Presumably, that was the reason why the application was withdrawn 'unconditionally'.
(5) The application with which, I am now concerned was filed by Kiran Arora on 10th January 1978. It is an application under Section 340 of the Code of Criminal Procedure 1973, in which she asks the court to make a complaint against Ram Parkash Arora for the offences allegedly committed by him in relation to the will that be propounded and which was held to be forged. And, the question that I have to decide is whether I should accede to that prayer.
(6) The will is typed on plain paper and purports to be signed by Chand Kiran as the executant. It reads as follows:
WILL
I, Kiran s/o Shri Ram Parkash Arora resident of B: F. 27, Tagore Garden, New Delhi, with my free-will, in my full senses, and without any undue pressure 'execute this will today the 26th December, 1973 in favor of my father Shri Ram Parkash s/o Shri Harkishan Lal of B.F.27, Tagore garden New Delhi bequeath all my move- able and immoveable property to him who will be its exclusive owner after my death.
THATmy father Shri Ram Parkash gave me a lot of affection and got built a house in the name of his two sons namely Kanwal Kishore and myself Chand Kiran. He spent the entire amount on the land and its construction and also took me as a partner in the firm M/S. Ram Parkash Kanwal Kishore, New Delhi.
Thati got married in December 1970 with Kiran daughter of Shri M. L. Khanna, advocate r/o Jawahar Nagar, New Delhi and gave birth to a son on 1st October, 1971 and to a daughter on 3rd November 1973.
Thati am a patient of Heart trouble and have faced an attack of heart sec'nd time and fell ill. My wife did not take any care of me. During the period of my wedded life she (sic) has never been faithful towards me which affected on my heart very badly. Since then there were quarrels between me and my wife and we were not on good terms and she uses (sic) to live with her parents (sic) without my consent and my married life became hell.
THATmy father Shri Ram Parkash will act as guardian of my children (Gagan son & Ruby daughter) and will keep them with him, look after them, educate them, arrange for their marriages, will make their career as I have left no faith in my wife and other persons in this world now.
THATif unfartunately my death occures (sic) at any moment this will of mine may be complied with strictly.
INwitness whereof I set my hand & signature on this will on the day, month and year above mentioned.
SD/-
CHANDKiran Executant
Witnesses.
MRS.Sneh Aviash
KANWALKishore
Raksha
S.C. Gupta
26-12-73.
(7) In the present proceeding I do not have to finally determine whether Ram Parkash Arora is guilty of the offences alleged to have been committed by him. I have merely to ascertain whether there is a prima facie case against him which ought to be sent for trial to criminal court, and there is a reasonable likelihood of the offences being established: Under Section 340 of the Code of Criminal Procedure the court is given a discretion to hold a 'preliminary inquiry'. But no such enquiry is normally necessary when the matter for consideration has already been once tried. Here, the will was directly in issue in the probate proceedings commenced by Ram Parkash Arora. There was a full dress trial in the course of which both parties produced whatever evidence they thought fit. In these circumstances, a further inquiry would be futile and simply a waste of time. Even counsel for both the parties stated that they did not wish me to hold any 'preliminary inquiry'.
(8) Although in his order dismissing the application for probate, the District Judge holds that Ram Parkash, Arora 'failed to establish' that the document which he propounded was 'the last will and testament of his son Chand Kiran', his reasoning leads inevitably to the conclusion that the will was forged. In appeal, B. C. Misra, J., did not mince words. He said:
'THEREis no doubt that on reading of the contents of the will and taking into consideration the entire circumstances established on the record, the will (Ex.P.I) is a handy work (sic) of the appellant who has fabricated it for his exclusive personal benefit and to grab the property of the deceased and punish and harass the wife and children of the deceased by every conceivable way that the appellant could device. The will is most unn,aViral and improbable. I am unable to place any reliance on k and have no hesitation in holding in agreement with the learned District Judge below that the will is a forged document and the appellant propounder has failed to establish that it is the last will and testament of the deceased executed by him in a sound disposing mind.'
Both those judgments have examined the matter in great detail. I have heard an extensive argument on the merits and read the evidence. Not only do I not find any reason for disagreeing with the District Judge and B. C. Misra, J., I agree with them without any reservations. I would adopt their reasoning as my own. This should be enough to send the case to the criminal court.
(9) Counsel for Ram Parkash Arora contended that in the probate proceeding the court had no jurisdiction to record a finding that the will was forged. He cited no authority for this proposition, but merely referred to Section 276 and some other Sections of the Indian Succession Act 1925. He argued that, since by Section 276(l)(b) the applicant for probate or for letters of administration was only required to state that 'the writing annexed' was the last will and testament' of the testator, the jurisdiction of the court was limited to giving or refusing to give a bare finding to that effect. It seems clear to me that that necessarily involves a decision as to whether the will is genuine or not. Indeed, that is usually the primary, and, often, tile only, question to be decided in such a proceeding. One of the obvious ways in which the court can come to the conclusion that the writing annexed is not the last will and testament of the testator is by holding that the will is forged. thereforee, I do not accept this submission.
(10) However, some authorities seem to hold that the court acting under Section 340 of the Code of Criminal Procedure should not be influenced by the judgments delivered in the main proceeding: The cases which I have earlier cited contain observations tending the other way. Nevertheless, by way of abundant caution, I will set out very briefly the salient reasons for my thinking that there is a prima facie case against Ram Parkash Arora.
(11) It will be observed that the will bears the signatures of four attesting witnesses. Sneh Aviash and Raksha are the daughters of Ram Parkash Arora. Kanwal Kishore is his son. S. C. Gupta is the family doctor who attended on Chand Kiran a few days before the latter died.
(12) When he was examined as a witness in the probate proceeding, Dr. S. C. Gupta said that he had signed the will four or five months after the death of Chand Kiran. He said that he was duped into doing so by Ram Parkash Arora. He denied that Chand Kiran had signed the will in his presence.
(13) Kanwal Kishore was not 'called as a witness. Still, of his own volition, he wrote a letter dated 15th January 1975 to the District Judge saying that, in June 1974, his father had obtained his signatures on two or three blank papers which he apprehended might be misused. He also said that his father was putting pressure on him to support the will, but his conscience did not allow him to do so. Ram Parkash Arora admitted that this letter was signed by his son.
(14) In my opinion, the statement made by Dr. S. C. Gupta and the letter written by Kanwal Kishore are sufficient by themselves to raise a prima facie case against Ram Parkash Arora that he had forged the will. The two daughters of Ram Parkash Arora who have attested the will were also examined as witnesses. It is evident from their statements that they tried to support the will either because of self-interest or to aid their father or because they were afraid of him. Raksha admits that now only she and her father are the partners in the business. Even Kanwal Kishore has been ousted. Raksha probably stood to lose her share in the business if the will was not proved. The story told by these two ladies about the execution of the will is too incredible. Neither the District Judge nor B. C. Misra, J., believed. it. Nor do 1.
(15) The will itself provides strong internal evidence that it is not genuine. The reasons- given by the executant for dis-inheriting his wife are that she did not take care of him and had 'never been faithful' to him, and used to live with her parents without his consent. 68 With these allegations made in the will one would expect to find convincing evidence of grave matrimonial disharmony. Yet, the worst that Ram Parkash Arora and his two daughters were able to say was that Kiran Arora used to visit her parents without her husband's consent. Even this is contradicted by other evidence which shows that the husband himself used to take his wife to her parents' house and leave her there. There is also evidence that the husband and wife used to go on holidays together every year, and were an affectionate couple.
(16) But, even supposing Chand Kiran had some secret grudge against his wife, why should he also disinherit his children They were too small to give him any cause for annoyance. If he did not trust his wife, he could have constituted his father as a trustee to hold his property for the benefit of his children. It is astonishing that he dis-inherits them also, and bequeaths every thing to his father.
(17) Counsel for Ram Parkash Arora argued that simply because the will was unfair or unjust did not prove that it was not genuine. In support of his submission he relied on. In those cases there was trustworthy evidence of the execution of the will, which, it was held, could not be rebutted merely by the consideration that the will was not fair or just. In the present case the execution of the will is wholly in doubt. Two of the attesting witnesses say that it has been forged. The dispositions made by the will make no sense at all, and remain unexplained by the evidence. In those circumstances, the cases cited by counsel for Ram Parkash Arora have no application.
(18) Then, it was said, that even if the will was spurious, there was nothing to indicate that Ram Parkash Arora, was the culprit. I would ask, as the Roman Lawyers did, cui bono Who profited The answer points to Ram Parkash Arora, and no one else. He is also the one who propounded it. Furthermore, there is a remarkable coincidence which, to my mind, is most telling. In the will it is recited that Chand Kiran's daughter was born on 3rd November 1973. This is incorrect. She was actually born on 2nd November 1973. In his examination-in-chief, the date of her birth mentioned by Ram Parkash Arora is the same as that stated in the will. Many a time it has happened that a forger has given himself away by some small insignificant detail. Unless otherwise satisfactorily explained, this coincidence links Ram Parkash Arora directly with the will.
(19) At a late stage in the probate proceeding, Ram Parkash Arora tried to prove that the will had been published on 18th January 1974 as it had been produced before Mr. Abudhiyan, the Manager of Overseas Bank, Rajouri Garden, Delhi. The District Judge disallowed the production of such evidence on the ground that Ram Parkash Arora had not pleaded that the will had been published on 18th January 1974, nor mentioned the name of Mr. Abudhiyan in the list of witnesses. Even in his statement in court, Ram Parkash Aro'ra had not said that the will had been published in the manner and on the occasion now suggested. Later, when the presiding officer changed, an attempt was made to surreptitiously revive the matter, but it failed.
(20) In the guardianship case, Ram Parkash Arora belatedly produced a photocopy of the will which has an endorsement, purporting to be made by Mr. Abudhiyan, to the effect that a copy of the will was produced before him on 18th January 1974. However, Mr. R. C. Bhavuk, the succeeding Manager of the Rajouri Garden branch of the Bank, said in evidence that Mr. Abudhiyan, who had been transferred to the branch at Rajinder Nagar, had confirmed in writing 'that no will was shown to him and no will was kept in the record'. Mr. Abudhiyan was afterwards summoned as a witness, but by then he had been transferred to Madras. Although, by an order dated 11th July 1977, the District Judge granted time to counsel for Ram Parkash Arora to consider whether he wished to examine Mr. Abudhiyan on commission, no steps were taken. On the next date of hearing Ram Parkash Arora went into the witness-box, and, thereforee, closed his case. He did not say a word about having produced the will before Mr. Abudhiyan on 18th January 1974. Nor was any question on the subject put to Kiran Arora when she was cross-examined. The statement made by Mr. Bhavuk is corroborated by correspondence between Kiran Arora and the Bank, which was placed on record.
(21) Towards the end of the hearing before me, an application was moved by Ram Parkash Arora praying that Mr. Abudhiyan who, I understand is still posted in Madras, may be summoned as a 'court witness'. I have already dismissed that application. It is noteworthy that Ram Parkash Arora is still not willing to call Mr. Abudhiyan as his own witness, but wishes to place the responsibility on the court. It seems to me that if it had been thought that; the testimony of Mr. Abudhiyan would really assist the case of Ram Parkash Arora, the opportunity afforded in the guardianship case would not have been lighty forgone.
(22) Moreover, it is established that Chand Kiran and his wife had a joint account and a locker in the Rajouri Garden branch of the Bank. Both of these were transferred to the exclusive name of Kiran Arora on 18th January 1974. If the will had been produced before the Manager on that day, he could not possibly have allowed this to happen for the sole heir named therein was Ram Parkash Arora. In any case, in view of the order which I am proposing to make, Ram Parkash Arora will have ample opportunity to produce Mr. Abudhiyan as a witness in the criminal court, if he is so advised.
(23) Lastly, it was contended that a complaint could not be filed under Section 340 of the Criminal Procedure Code in respect of a document forged before any proceeding was pending or the person who had committed the forgery had become a party thereto. I think, this submission was based on a misunderstanding of (F.B.I. That case sought to reconcile Section 195(l)(c) with Section, 476 in the Code of Criminal Procedure 1898. The power under Section' 476 to make a complaint could be exercised only in relation to in offence 'committed in or in relation to a proceeding' in court, in Section 195(l)(c) the relevant words were 'committed by a 'arty to any proceeding in any court in respect of a document produced or given in, evidence in such proceeding'. The Allahabad High Court said:
'IF we lay a little emphasis on the word 'party' or if we add the words 'as such' after the word 'party', the meaning of Cl. (c) would be quite in keeping with the provisions of S. 476, Criminal P.C.'
It is true that there are sentences here and there in these authorities which lend colour to the submission that was made. But, I think, they must be understood and interpreted in the context of the question that was raised and the facts of the particular case.
(24) In any event, these cases can no longer prevail, because in the present Code of 1973 the words 'by a party to any proceeding in any court' have been omitted in, Section 195(1)(b)(ii) which is the equivalent provision: see the Commentary on the Criminal Procedure Code 1973 by Chitaley and Rao (7th ed.) page 358. This omission was deliberate and the result of the recommendation made by the Law Commission in its 41st Report. In para 15.96 the Law Commission observed:
'TAKINGan over-all view of the matter and keeping in mind the object of the section, we consider that the scope of clause (c) should not be restricted to offences committed by parties to the court proceeding. The clause should apply when any of the specified offences is alleged to have been committed by any person in respect of a document produced or given, in evidence in any proceeding.....................'.
This furnishes a complete answer to the submission.
(25) Before, a court makes a complaint under Section 340 of the Code it must form the 'opinion, that it is expedient in the interests of justice' to do so: Counsel for Ram Parkash Arora did not attempt to argue that, on the facts of the present case, it was not expedient in the interests of justice to file a complaint. Indeed, he expressly disavowed the making of any such submission. To my mind, if it be true that the will is forged and that Ram Parkash Arora has committed the forgery, I should be failing in my duty if I refrained from ordering that a complaint be filed against him. The crime was monstrous in the extreme. The purpose was to deprive his daughter-in-law and his own grandchildren of their inheritance. It would be making a mockary of the law to allow such a crime to pass unnoticed.
(26) Accordingly, I order the Registrar of this Court to make a complaint in writing against Ram Parkash Arora for offences under Sections 193, 196, 467 and 471 of the Indian' Penal Code to the Magistrate having jurisdiction.