Bombay High Court
Hoshang Jehangir Khan vs Khushroo Behramshaw Mogal on 14 August, 2025
2025:BHC-OS:13699
Ashwini 3-osia-1809-2024-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.1809 OF 2024
IN
CAVEAT (L) NO.9320 OF 2024
IN
TESTAMENTARY PETITION NO.3908 OF 2023
Hilla Homi Dady alias ]
Hilla Homi Dadysett alias Hilla Dady ]
alias Hilla Dadysett alias H. H. Dady ]
alias H. H. Dadysett alias Hilla H. Dady ]
alias Hilla H. Dadysett ] ... Deceased
Versus
1. Hoshang Jehangir Khan ]
aged 63 yrs., of Mumbai, ]
Parsi Zoroastrian, Indian Inhabitant, ]
Married; Occupation: Business ]
Residing at 6, Shiv Shanti Bhavan,]
146, M. Karve Road, ]
Churchgate, Mumbai 400 020. ]
2. Rashna Hoshang Khan ]
Aged 60 yrs., of Mumbai, ]
Parsi Zoroastrian, Indian Inhabitant, ]
Married; Occupation: Advocate ]
Residing at 6, Shiv Shanti Bhavan ]
146, M. Karve Road, ]
Churchgate, Mumbai 400 020 ] ... Applicants
In the matter of:
1. Hoshang Jehangir Khan ]
aged 63 yrs., of Mumbai, ]
Parsi Zoroastrian, Indian Inhabitant, ]
Married; Occupation: Business ]
Residing at 6, Shiv Shanti Bhavan,]
146, M. Karve Road, ]
Digitally
signed by
ASHWINI
Churchgate, Mumbai 400 020. ]
ASHWINI
H GAJAKOSH
GAJAKOSH Date:
2025.08.16 2. Rashna Hoshang Khan ]
17:48:23
+0530
1/27
::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
Aged 60 yrs., of Mumbai, ]
Parsi Zoroastrian, Indian Inhabitant, ]
Married; Occupation: Advocate ]
Residing at 6, Shiv Shanti Bhavan ]
146, M. Karve Road, ]
Churchgate, Mumbai 400 020 ] ... Petitioners
Versus
Khushroo Behramshaw Mogal ]
Age 51 years, Parsi Indian Inhabitant ]
of Mumbai residing at Room No.C-12, ]
1 st floor, Novroz Baug, Dr. S.S.Rao Road,]
Ganesh Galli, Lalbaug, Parel ]
Mumbai 400 012. ] ... Caveator
Mr. Dinyar Madon, Senior Advocate, Adv. Zubin Behramkamdin,
Senior Advocate a/w. Ms. Anandini Fernandes, Adv. Ferzana
Behramkamdin, Adv. Kalyani Deshmukh i/by FZB & Associates
for the Applicant/Petitioner.
Mr. Sameer Logade a/w. Adv. Shahid Ansari, Adv. Mohd. Riyaz i/by
G.L. Thonge for the Respondents.
Mr. R.V. Pai, Senior Advocate a/w. Adv. Mayur Khandeparkar, Adv.
Bina Pai, Adv. Akshay P., Adv. Siddhi Bhosale, Adv. Ashesha
Chheda, Adv. Varad Jadhav, Adv. Omkar Kalundrekar for the
Applicant in IAL/21794/2025.
Mr. Shahed Ali Ansari a/w Ms. Mohammed Riyaz i/by G.L. Thonge for
the Respondents in IA/1808 & 1809/2024 & CTS/9320/2024.
CORAM : KAMAL KHATA, J.
RESERVED ON : 17th July 2025.
PRONOUNCED ON : 14th August 2025.
JUDGMENT:
1) This is an Application filed under Section 340 read with
Section 195 of Criminal Procedure Code (CrPC) 1973, on behalf of
the Applicants, who are Original Petitioners.
2/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc 2) The Applicants are the Executor and Executrix named in
the last Will and testament dated 18 th December 2015, together with
four codicils, of one Hilla Homi Dady alias Hilla Homi Dadysett alias
Hilla Dady alias Hilla Dadysett alias H.H. Dady alias H. H. Dadysett
alias Hilla H. Dady alias Hilla H. Dadysett (hereinafter referred to as
“the Deceased”).
3) The Executors have instituted a Testamentary Petition
No. 3908 of 2023 on 17th October 2023, seeking probate of the Will,
which is still pending adjudication. The Applicant no. 1 has known
the Deceased for the past 50 years. The father of Applicant No. 1 and
the husband of Deceased were cousins – their maternal grandmother
and grandfather, respectively, being siblings.
4) The son of the Deceased brother, being the sole surviving
legal heir of the Deceased, has filed an Affidavit dated 26 th July 2023,
consenting to grant of probate in favour of the Petitioners.
5) By an Order dated 19th December 2023, the additional
Registrar, Original Side/Additional Prothonotary Senior Master,
directed issuance of general citation in the Petition. The Petition was
listed on 15th March 2024, for grant of probate.
6) On 14th March 2024, one Khushroo Behramshaw Mogal e-
filed a Caveat along with an Affidavit in Support dated 12th March
2024 in the said Petition, enclosing therewith an alleged last Will and
3/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
testament dated 23rd March 2023, purportedly executed by the
deceased.
7) On 15th March 2024, the said Mr. Mogal, through his
Advocate, appeared and stated that a Caveat had been filed on his
behalf. This statement was duly recorded in the Order dated 15 th
March 2024.
8) Despite requests made by the Petitioners’ Advocate,
neither the caveat nor the Affidavit in support was served upon the
Petitioner or their Advocate.
9) Due to the change in representation for the Petitioners,
another letter dated 23rd March 2024, was addressed to the
Advocates for the Caveator, requesting copies of the Caveat and the
Affidavit in Support.
10) On 26th March 2024, the Advocates for the Caveator
served upon the Petitioner’s Advocate a copy of the Caveat and the
Affidavit in Support thereof. Upon perusal of the said documents, the
Petitioners became convinced that the Caveator is claiming to be a
sole beneficiary of a portion of the estate of the Deceased on the
strength of a forged and fabricated Will.
11) The Applicants submit that the forgery and fabrication of
the purported Will dated 23rd March 2023 is evident from the
following facts:
4/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
a) The signature on the alleged Will is not that of the
Deceased.
b) The Caveator has no caveatable interest. He is
neither an heir nor a relative of the Deceased, nor an
heir under the provisions of the Indian Succession Act,
1925 as applicable to Parsis. This is evident from the
alleged Will itself, annexed by the Caveator to his
Affidavit in support of the Caveat.
c) The Caveator claims that the Deceased referred to
him as ”just like my son” or “my nearest person” The
Caveator is not related to the Deceased.
d) Given the Applicant’s close relationship with the
Deceased and her predeceased husband, they are well
aware, that neither the Caveator nor his father
“Behramshaw Rustomji Mogal” were known to the
Deceased, much less considered “just like my ·son” or
“my nearest person” as alleged in the purported Will.
e) The close personal relationship between the
Deceased and the Applicants is evinced by the fact that
the names of the Applicants (Applicant No.2, the wife
of Applicant No. 1), were added by the Deceased as
joint holders in her Bank Accounts, and the Applicant
5/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
No. l was nominated in respect of all her
investments/assets.
f) There is no explanation as to why the Caveator
waited almost a year after the Deceased’s death to
approach an Advocate, if indeed a valuable property (a
bungalow at Kemps Corner) had been bequeathed to
him.
g) The Will and Codicils executed between 18th
December 2015 and 27th February 2023 do not
mention the Caveator or his father at all, either as
beneficiaries/nominees in any of the assets of the
Deceased.
h) The Caveator’s Affidavit fails to explain how he
knew the Deceased, and apart from the alleged Will,
there is no evidence of any acquaintance between
them.
i) If the Caveator were truly “just like my son” or “my
nearest person” as alleged, he would have been
mentioned in at least one of the earlier testamentary
documents, even if not as a beneficiary. For example,
Mr.Yezdi Soli Doctor, Deceased’s nephew, was
expressly named in para 10 (b) of the Will dated 25 th
6/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
December 2015 despite not receiving any bequest
under it; subsequently, by Codicil dated 18th
September 2019, a monetary gift was made to him.
j) A mere comparison of the signature on the alleged
Will with the signatures on the four Codicils shows that
they do not match in any manner.
k) The Deceased having given her own nephew only a
sum of money, would have had no reason to bequeath
her major asset – her share in a prime property at
Kemps Corner, Mumbai, – to a complete stranger.
l) For over eight years, the Deceased’s stated
intention, including in her Will and Codicils, was to sell
her share of the bungalow and donate the proceeds to
charity. There was no conceivable reason for a change
of mind within twenty-four days between 27 th
February 2023 and 23rd March 2023.
m) All earlier Wills and Codicils were internally
consistent and executed in the presence of known
trusted witnesses. By contrast, the witnesses to the
alleged Will are unknown persons.
n) The alleged witnesses have signed on a separate
page that appears to have been annexed to the alleged
7/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
Will, further casting doubt on its authenticity.
o) Despite allegedly being the sole beneficiary, the
Caveator has not filed any petition for probate or
letters of administration since the Deceased’s death on
22nd May 2023. The Petitioner’s however filed their
probate Petition on 11th October 2023, and citation
was published on 21st January 2024.
p) The Caveator surfaced only on 15th March, 2024 –
when the Petition was listed for compliance and grant
of probate orders – claiming to have filed a Caveat the
previous day.
q) This conduct strongly suggests that that the alleged
Will did not exist at the time of the Deceased’s death
and was subsequently fabricated in collusion with
others, using information from the genuine
testamentary documents to forge a signature.
r) The Deceased was at all times attended by trusted
staff of several decades standing, who did not permit
unknown persons into her residence.
s) The description of the Kemps Corner bungalow in
the alleged Will has been lifted verbatim from the Will
dated 25th December 2015.
8/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
t) A comparison of the alleged Will with the genuine
Will and four Codicils clearly reveals fabrication,
including a forged signature.
u) The alleged Will is riddled with typographical and
grammatical errors in names, addresses and content –
something wholly inconsistent with the Deceased
education, literacy, and attention to detail.
v) The alleged Will names no executor and makes no
provision for the residue of the estate, which is
inconsistent with the Deceased’s prior practice and
intent.
12) Mr. Dinyar Madan, learned Counsel for the Applicants
submits that the Caveator is attempting to mislead this Court by
relying upon the purported Will dated 23 rd March 2023, falsely
claiming it to be genuine, despite being fully aware that it is false and
fabricated. Upon inquiries within the Parsi community, it was
discovered that the Caveator’s own mother has filed a written
statement in Suit No. 1905 of 2006 filed by the Caveator against his
own family members, describing him as a mischievous person who
has habitually attempted to extort money by blackmailing
individuals for personal gain.
13) It has further come to light that the Caveator's stepfather 9/27 ::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 22:54:48 ::: Ashwini 3-osia-1809-2024-J.doc
and brother have also filed a written statements alleging that the
Caveator has committed several illegal and criminal acts, and that
criminal complaints have been filed against him in various police
stations. His own family members have stated that the Caveator has
initiated proceedings against his stepfather and mother with intent
to blackmail and extort money from them.
14) It has also been discovered that the Caveator defrauded
his wife by selling her father’s house and misappropriating sums
from his pension accounts. He is alleged to have fabricated Wills and
other documents in addition to the present one, and civil and
criminal proceedings have been initiated against him by his brother-
in-law in the Girgaon Court and the City Civil Court.
15) The Caveator has also allegedly instigated another
woman-whom he claims to be his wife – to file a Suit No. 1285 of 2004
against her own family. These facts, it is submitted, demonstrate that
the Caveator has a criminal disposition and is known to unlawfully
usurp estate of others.
16) Mr. Madan submits that it is prima facie evident that the
Caveator has fabricated the purported Will dated 23 rd March 2023 to
support his false claim over the estate of the Deceased. Such acts fall
squarely within the ambit of section 463, 464 and 467 of the Indian
Penal Code, 1860 and render him liable for prosecution and
punishment under Sections 465 and 467 of the Indian Penal Code,
10/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
1860 (IPC).
17) Mr. Madan further submits that the Caveator has
committed an offence under section 471 of the IPC, by fraudulently
and dishonestly using a forged Will dated 23 rd March 2023, claiming
to be genuine, despite knowing it to be forged and fabricated.
18) In these circumstances, it is submitted that, in the
interest of Justice, an inquiry should be conducted into the offences
committed by the Caveator in relation to the forged Will dated 23 rd
March 2023, which he produced before this Court through his Caveat
and Affidavit in support.
19) Learned Senior Counsel, Mr. Madan, accordingly, prays
that this Application be allowed in terms of prayer clause A or B as
deemed fit by this court.
20) In further support of his submissions, Mr. Madan places
reliance on the Judgment of the Supreme Court in State of Punjab
versus Jasbir Singh1 wherein it was held that, in circumstances such
as the present, there is no question of affording an opportunity of
hearing to the accused prior to initiation of proceedings.
21) The relevant paragraphs of the judgment are extracted
herein below for ready reference:
“1. The matter has been placed before a three Judges
Bench arising from a reference made vide Order dated
1
2022 SCC OnLine SC 1240.
11/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
26.02.2020 seeking the following questions to be
answered:
“(i) Whether Section 340 of the Criminal
Procedure Code, 1973 mandates a preliminary inquiry
and an opportunity of hearing to the would-be accused
before a complaint is made under Section 195 of the
Code by a Court?
(ii) what is the scope and ambit of such
preliminary inquiry?”
5. To put the aspect in the right perspective and in
sequence, we may note that the first judgment of three
Judges Bench was Pritish v. State of Maharashtra¹
which noticed that the purpose of a preliminary
inquiry under Section 340(1), Cr.P.C. was not to find
whether a person is guilty or not but only to decide
whether it was expedient in the interest of justice to
inquire into the offence. It was thus observed that the
Court is not obliged to make a preliminary inquiry on a
complaint but if the Court decides to do so, it should
make a final set of the facts which is expedient in the
interest of justice that offence should be further probed
into.
6. The reference Order is a conflicting view in Sharad
Pawar v. Jagmohan Dalmiya to the extent that in para
7 while noticing the submissions of the counsels it was
observed that it was necessary to conduct a
preliminary inquiry as contemplated under Section
340 Cr.P.C. and “also to afford an opportunity of being
heard to the defendants, which was admittedly not
done.” The latter was stated to be contrary to the view
in Pritish’s case.
7. The reference Order also simultaneously noted the
12/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
observations in the Constitution Bench of this Court in
Iqbal Singh Marwah v. Meenakshi Marwah which was
post the judgment in Pritish’s case (supra) but prior to
the judgment in Sharad Pawar’s case (supra). In this
behalf the extracted portion in 23 of the judgment
reads as under: “In view of the language used in
Section 340 Cr.P.C. the Court is not bound to make a
complaint regarding commission of an offence referred
to in Section 195(1) (b), as the Section is conditioned
by the words “Court is of opinion that it is expedient in
the interest of justice.” This shows that such a course
will be adopted only if the interest of justice requires
and not in every case. Before filing of the complaint,
the Court may hold a preliminary enquiry and record a
finding to the effect that it is expedient in the interests
of justice that enquiry should be made into any of the
offences referred to in Section 195(i) (b). This
expediency will normally be judged by the Court by
weighing not the magnitude of injury suffered by the
person affected by such forgery or forged document,
but having regard to the effect or impact, such
commission of offence has upon administration of
justice. It is possible that such forged document or
forgery may cause a very serious or substantial injury
to a person in the sense that it may deprive him of a
very valuable property or status or the like, but such
document may be just a piece of evidence produced or
given in evidence in Court, where voluminous evidence
may have been adduced and the effect of such piece of
evidence on the broad concept of administration of
justice may be minimal. In such circumstances, the
Court may not consider it expedient in the interest of
justice to make a complaint.
13/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
8. On having considered the matter, it is our view that
the Constitution Bench’s view would naturally prevails
that makes the legal position quite abundantly clear.
Not only that, if we may notice, what is reported in
Sharad Pawar’s case (supra) is only an Order and not a
judgment. An Order is in the given factual scenario.
The judgment lays down the principles of law. The
scenario is that any Order or judgment passed by this
Court becomes a reportable exercise to create more
volumes of reported cases! This thus has a possibility
at times of causing some confusion on the legal
principles prevalent. The observations in the quoted
paragraph extracted aforesaid apparently came out of
the flow of the Order rather than pronouncing any
principles of law and that is why the Bench itself
categorized what is observed as an Order i.e., in the
given factual scenario.
9. We have little doubt that there is no question of
opportunity of hearing in a scenario of this nature and
we say nothing else but that a law as enunciated by the
Constitution Bench in Iqbal Singh Marwah‘s case
(supra) is in line with what was observed in Pritish
case (supra).
10. Interestingly both the judgments in Pritish’s
case and the Constitution Bench judgment in Iqbal
Singh Marwah‘s case (supra) have not been noted in
Order passed in Sharad Pawar’s Case (supra). The
answer thus to the first question raised would be in the
negative.”
22) Mr. Sameer Logade, Advocate for the Respondent, sought
time to file an Affidavit in Response to the Interim Application. This
14/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
request was opposed by the Applicants counsel Mr. Madon. The Court
accordingly granted Mr. Logade time to consider the decision in
State of Punjab v Jasbir Singh‘s (supra) and to place on record any
case law that would entitle him either to file a reply or to be heard in
the matter.
23) On the next date of hearing, Mr. Logade again insisted on
being heard for at least 15 minutes. This was once more opposed by
Mr. Madon.
24) Upon a specific query posed by this Court to Mr. Logade,
as to whether there existed any judgement entitling him to be heard
at this stage, the answer was in the negative. Thereafter, I heard Mr.
Madon and perused the record.
25) Prima Facie, this case appears to be a posthumous
pursuit of riches unearned and a concerted attempt by unrelated
party to usurp the estate. There is merit in Mr. Madon’s submissions.
A plain reading of the alleged Will raises serious suspicion. The
Caveator is neither an heir nor a relative of the Deceased. The
phrases ‘just like my son’ and ‘my nearest person’ appear to have
been craftily employed to mislead the reader into believing that the
Deceased shared a close relationship with the Caveator.
26) A comparison of the signature on the alleged Will relied
upon by the Caveator and the Will and Codicils relied upon by the
15/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
Applicants shows clear dissimilarity. There is merit in Mr. Madon’s
contention that the description of the bungalow in the alleged Will
has been lifted from the genuine Will dated 25 th December 2015. The
typographical errors in the names and addresses also raise
suspicion, particularly since the Deceased was a well-read and
meticulous person. The conduct of the Caveator – approaching the
court after nearly a year – further adds to the suspicion.
27) Another factor warranting doubt is that the Deceased had
executed a Will as far back as 18th December 2015, followed by
several codicils, the last of which was as recent as 27 th February
2023. This supports the genuineness of the 2015 Will. The mention of
her nephew, coupled with his Affidavit consenting to grant of probate
to the Applicants despite receiving only a monetary bequest, also
strengthens the Applicant’s case. The execution of a purported new
Will just 24 days after the last codicil is highly suspicious. I find merit
in Mr. Madon’s submission that a preliminary inquiry under Section
340(1) CrPC is not to determine guilt, but to decide whether it is
expedient in the interest of justice to inquire into the offence.
28) In this regard, the Hon’ble Supreme Court in the case of
Himanshu Kumar & Ors. vs. State of Chhattisgarh & Ors. 2 analysis
the law under Section 340 of the Cr.P.C., the relevant paragraphs are
reproduced as under for ready reference:
2
2023 12 SCC 592
16/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc“76. Thus, from the above, it follows that there are two
conditions, on fulfilment of which, a complaint can be filed
against a person who has given a false affidavit or evidence in
a proceeding before a court. The first condition being that a
person has given a false affidavit in a proceeding before the
court and, secondly, in the opinion of the court it is expedient
in the interest of justice to make an inquiry against such a
person in relation to the offence committed by him.
79. The law under Section 340 CrPC on initiating
proceedings has been laid down in several of our judgments.
Thus, in Chajoo Ram v. Radhey Shyam [Chajoo Ram v. Radhey
Shyam, (1971) 1 SCC 774 : 1971 SCC (Cri) 331], this Court,
in para 7, stated as under : (SCC p. 779)
“7. … No doubt giving of false evidence and filing false
affidavits is an evil which must be effectively curbed
with a strong hand but to start prosecution for perjury
too readily and too frequently without due care and
caution and on inconclusive and doubtful material
defeats its very purpose. Prosecution should be ordered
when it is considered expedient in the interests of
justice to punish the delinquent and not merely because
there is some inaccuracy in the statement which may be
innocent or immaterial. There must be prima facie case
of deliberate falsehood on a matter of substance and the
court should be satisfied that there is reasonable
foundation for the charge.”
82. It is clear through from a reading of the aforesaid
judgments that there should be something deliberate — a
statement should be made deliberately and consciously which
is found to be false as a result of comparing it with
unimpeachable evidence, documentary or otherwise.
83. It is true that an affidavit is “evidence” within the
17/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
meaning of Section 191 IPC and a person swearing to a false
affidavit is guilty of perjury. But the matter does not rest here.
Before initiating the proceedings for perjury, the court
concerned has to consider whether it would be expedient in
the interest of justice to sanction such prosecution. What the
courts have to see at this stage is whether there is evidence in
support of the allegations made by the Union of India
(respondent herein) to justify the initiation of proceedings
against the writ petitioners, more particularly, Writ Petitioner
1 herein who had filed the affidavit on behalf of himself and
the other writ petitioners and not whether the evidence is
sufficient to warrant his conviction. However, this does not
mean that the court should not prima facie be of the opinion
that there are sufficient and reasonable grounds for setting
the machinery of criminal law in motion against the accused.
As noted above, the Court has further to see that the false
statement was deliberate and conscious and the conviction is
reasonably probable or likely. In other words, before
sanctioning the prosecution there must be a prima facie case
of a falsehood on a matter of substance and the court should
be satisfied that there is reasonable foundation for the charge.
(See S.P. Kohli v. High Court of P&H [S.P. Kohli v. High Court
of P&H, (1979) 1 SCC 212 : 1979 SCC (Cri) 252 : AIR 1978 SC
1753] ).
84. This Court in Muthu Karuppan v. Parithi Ilamvazhuthi
[Muthu Karuppanv.Parithi Ilamvazhuthi, (2011) 5 SCC 496 :
(2011) 2 SCC (Cri) 709] , has held as under : (SCC p. 501,
paras 15-16)“15. Giving false evidence by filing false affidavit is an
evil which must be effectively curbed with a strong
hand. Prosecution should be ordered when it is
considered expedient in the interest of justice to punish
the delinquent, but there must be a prima facie case of18/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc“deliberate falsehood” on a matter of substance and the
court should be satisfied that there is a reasonable
foundation for the charge.
16. In a series of decisions, this Court held that the
enquiry/contempt proceedings should be initiated by
the court in exceptional circumstances where the court
is of the opinion that perjury has been committed by a
party deliberately to have some beneficial order from
the court. There must be grounds of a nature higher
than mere surmise or suspicion for initiating such
proceedings. There must be distinct evidence of the
commission of an offence by such a person as mere
suspicion cannot bring home the charge of making false
statement, more so, the court has to determine as on
facts whether it is expedient in the interest of justice to
enquire into offence which appears to have been
committed.”
85. Section 340 CrPC came up for the consideration before a
three-Judge Bench of this Court in Pritish v. State of
Maharashtra[Pritish v. State of Maharashtra, (2002) 1 SCC
253 : 2002 SCC (Cri) 140] . In Pritish [Pritish v. State of
Maharashtra, (2002) 1 SCC 253 : 2002 SCC (Cri) 140] , this
Court was called upon to consider, whether it is mandatory on
the part of the court to make a preliminary inquiry under
Section 340 CrPC before filing a complaint under Section 195
CrPC and further, whether the court is required to afford an
opportunity of hearing to the person against whom a
complaint is filed before a Magistrate for initiating prosecution
proceedings. This Court took the view that an opportunity to
the would-be accused before the filing of the complaint was not
mandatory and observed that the preliminary inquiry was
itself not mandatory. The Court observed thus : (SCC pp. 258-
61, paras 9-14 & 18)
19/27
::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
“9. Reading of the sub-section makes it clear that the
hub of this provision is formation of an opinion by the
court (before which proceedings were to be held) that it
is expedient in the interest of justice that an inquiry
should be made into an offence which appears to have
been committed. In order to form such opinion, the
court is empowered to hold a preliminary inquiry. It is
not peremptory that such preliminary inquiry should be
held. Even without such preliminary inquiry the court
can form such an opinion when it appears to the court
that an offence has been committed in relation to a
proceeding in that court. It is important to notice that
even when the court forms such an opinion it is not
mandatory that the court should make a complaint.
This sub-section has conferred a power on the court to
do so. It does not mean that the court should, as a
matter of course, make a complaint. But once the court
decides to do so, then the court should make a finding to
the effect that on the fact situation it is expedient in the
interest of justice that the offence should further be
probed into. If the court finds it necessary to conduct a
preliminary inquiry to reach such a finding it is always
open to the court to do so, though absence of any such
preliminary inquiry would not vitiate a finding reached
by the court regarding its opinion. It should again be
remembered that the preliminary inquiry contemplated
in the sub-section is not for finding whether any
particular person is guilty or not. Far from that, the
purpose of preliminary inquiry, even if the court opts to
conduct it, is only to decide whether it is expedient in
the interest of justice to inquire into the offence which
appears to have been committed.
10. “Inquiry” is defined in Section 2(g) of the Code as
20/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
‘every inquiry, other than a trial, conducted under this
Code by a Magistrate or court’. It refers to the pre-trial
inquiry, and in the present context it means the inquiry
to be conducted by the Magistrate. Once the court which
forms an opinion, whether it is after conducting the
preliminary inquiry or not, that it is expedient in the
interest of justice that an inquiry should be made into
any offence the said court has to make a complaint in
writing to the Magistrate of the First Class concerned.
As the offences involved are all falling within the
purview of “warrant case” [as defined in Section 2(x)]
of the Code the Magistrate concerned has to follow the
procedure prescribed in Chapter XIX of the Code. In this
context we may point out that Section 343 of the Code
specifies that the Magistrate to whom the complaint is
made under Section 340 shall proceed to deal with the
case as if it were instituted on a police report. That
being the position, the Magistrate on receiving the
complaint shall proceed under Section 238 to Section
243 of the Code.
11. Section 238 of the Code says that the Magistrate
shall at the outset satisfy himself that copies of all the
relevant documents have been supplied to the accused.
Section 239 enjoins on the Magistrate to consider the
complaint and the documents sent with it. He may also
make such examination of the accused, as he thinks
necessary. Then the Magistrate has to hear both the
prosecution and the accused to consider whether the
allegations against the accused are groundless. If he
finds the allegations to be groundless he has to
discharge the accused at that stage by recording his
reasons thereof. Section 240 of the Code says that if the
Magistrate is of opinion, in the aforesaid inquiry, that
21/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
there is ground for presuming that the accused has
committed the offence he has to frame a charge in
writing against the accused. Such charge shall then be
read and explained to the accused and he shall be asked
whether he pleads guilty of the offence charged or not.
If he pleads not guilty then the Magistrate has to
proceed to conduct the trial. Until then the inquiry
continues before the Magistrate.
12. Thus, the person against whom the complaint is
made has a legal right to be heard whether he should be
tried for the offence or not, but such a legal right is
envisaged only when the Magistrate calls the accused to
appear before him. The person concerned has then the
right to participate in the pre-trial inquiry envisaged in
Section 239 of the Code. It is open to him to satisfy the
Magistrate that the allegations against him are
groundless and that he is entitled to be discharged.
13. The scheme delineated above would clearly show
that there is no statutory requirement to afford an
opportunity of hearing to the persons against whom
that court might file a complaint before the Magistrate
for initiating prosecution proceedings. The learned
counsel for the appellant contended that even if there is
no specific statutory provision for affording such an
opportunity during the preliminary inquiry stage, the
fact that an appeal is provided in Section 341 of the
Code, to any person aggrieved by the order, is indicative
of his right to participate in such preliminary inquiry.
14. Section 341 of the Code confers a power on the
party on whose application the court has decided or not
decided to make a complaint, as well as the party
against whom it is decided to make such complaint, to
22/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
file an appeal to the court to which the former court is
subordinate. But the mere fact that such an appeal is
provided, it is not a premise for concluding that the
court is under a legal obligation to afford an opportunity
(to the persons against whom the complaint would be
made) to be heard prior to making the complaint. There
are other provisions in the Code for reaching
conclusions whether a person should be arrayed as
accused in criminal proceedings or not, but in most of
those proceedings there is no legal obligation cast on the
court or the authorities concerned, to afford an
opportunity of hearing to the would-be accused. In any
event the appellant has already availed of the
opportunity of the provisions of Section 341 of the Code
by filing the appeal before the High Court as stated
earlier.
18. We are unable to agree with the said view of the
learned Single Judge as the same was taken under the
impression that a decision to order inquiry into the
offence itself would prima facie amount to holding him,
if not guilty, very near to a finding of his guilt. We have
pointed out earlier that the purpose of conducting
preliminary inquiry is not for that purpose at all. The
would-be accused is not necessary for the court to
decide the question of expediency in the interest of
justice that an inquiry should be held. We have come
across decisions of some other High Courts which held
the view that the persons against whom proceedings
were instituted have no such right to participate in the
preliminary inquiry (vide M. Muthuswamy v. CBI [M.
Muthuswamy v. CBI, 1984 SCC OnLine Mad 158] ).”
(emphasis supplied)
23/27
::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
86. In M.S. Sheriff v. State of Madras [M.S. Sheriff v. State
of Madras, (1954) 1 SCC 524 : AIR 1954 SC 397] , a
Constitution Bench of this Court said that no expression on
the guilt or innocence of persons should be made by the court
while passing an order under Section 340CrPC. An exercise at
that stage is not for finding whether any offence was
committed or who committed the same. The scope is confined
to see whether the court could then decide on the materials
available that the matter requires inquiry by a criminal court
and that it is expedient in the interest of justice to have it
inquired into. This decision of the Constitution Bench has also
been followed in Pritish [Pritish v. State of Maharashtra,
(2002) 1 SCC 253 : 2002 SCC (Cri) 140] observing that the
court, when decides to make a complaint under Section 340, is
not to record finding of guilt or innocence of person against
whom complaint is to be made before a Magistrate.
90. Later, the judgment in Pritish [Pritish v. State of
Maharashtra, (2002) 1 SCC 253 : 2002 SCC (Cri) 140] came
to be relied upon by a two-Judge Bench of this Court in
Amarsang Nathaji [Amarsang Nathaji v. Hardik Harshadbhai
Patel, (2017) 1 SCC 113 : (2017) 1 SCC (Cri) 237] . While
dealing with the propriety of the procedure adopted by the
court making a complaint under Section 340CrPC, the Bench
in Amarsang Nathaji [Amarsang Nathaji v. Hardik
Harshadbhai Patel, (2017) 1 SCC 113 : (2017) 1 SCC (Cri)
237] observed as follows : (SCC p. 117, para 7)
“7. In the process of formation of opinion by the court
that it is expedient in the interests of justice that an
inquiry should be made into, the requirement should
only be to have a prima facie satisfaction of the offence
which appears to have been committed. It is open to the
court to hold a preliminary inquiry though it is not
mandatory. In case, the court is otherwise in a position
24/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
to form such an opinion, that it appears to the court
that an offence as referred to under Section 340CrPC
has been committed, the court may dispense with the
preliminary inquiry. Even after forming an opinion as to
the offence which appears to have been committed also,
it is not mandatory that a complaint should be filed as a
matter of course. (See Pritish v. State of Maharashtra
[Pritish v. State of Maharashtra, (2002) 1 SCC 253 :
2002 SCC (Cri) 140] )”
91. The conflict between the two decisions of this Court of
equal strength i.e. Pritish [Pritish v. State of Maharashtra,
(2002) 1 SCC 253 : 2002 SCC (Cri) 140] and Sharad Pawar
[Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290 :
(2013) 1 SCC (Civ) 1188 : (2013) 2 SCC (Cri) 197] , was
taken notice of by this Court in State of Punjab v. Jasbir Singh
[State of Punjab v. Jasbir Singh, (2020) 12 SCC 96 : (2020) 4
SCC (Cri) 140] . A Bench of two Judges of this Court
ultimately thought fit to refer the question to a larger Bench.
The Court observed as under : (Jasbir Singh case [State of
Punjab v. Jasbir Singh, (2020) 12 SCC 96 : (2020) 4 SCC (Cri)
140] , SCC p. 104, para 14)
“14. In any event, given that the decision of the three-
Judge Bench in Sharad Pawar [Sharad Pawar v.
Jagmohan Dalmiya, (2010) 15 SCC 290 : (2013) 1 SCC
(Civ) 1188 : (2013) 2 SCC (Cri) 197] did not assign any
reason as to why it was departing from the opinion
expressed by a Coordinate Bench in Pritish [Pritish v.
State of Maharashtra, (2002) 1 SCC 253 : 2002 SCC
(Cri) 140] regarding the necessity of a preliminary
inquiry under Section 340 CrPC, as also the
observations made by a Constitution Bench of this Court
in Iqbal Singh Marwah [Iqbal Singh Marwah v.
Meenakshi Marwah, (2005) 4 SCC 370 : 2005 SCC (Cri)
25/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.doc
1101] , we find it necessary that the present matter be
placed before a larger Bench for its consideration,
particularly to answer the following questions:
14.1. (i) Whether Section 340 of the Code of Criminal
Procedure, 1973 mandates a preliminary inquiry and
an opportunity of hearing to the would-be accused
before a complaint is made under Section 195 of the
Code by a court?
14.2. (ii) What is the scope and ambit of such
preliminary inquiry?”
29) Subsequently, the full bench of Supreme Court in Jasbir
Singh (supra) decided the issue that the purpose of a preliminary
inquiry under Section 340(1), Cr.P.C. was not to find whether a
person is guilty or not but only to decide whether it was expedient in
the interest of justice to inquire into the offence.
30) In my view, the purported Will relied upon by the
Caveator would certainly impact the administration of justice, cause
a substantial injury to the Applicants, and deprive the Charity of a
very valuable property. The existence of such a document would
compel Courts to require the parties to lead evidence to prove it. The
ratio of the Full-Bench decision in Jasbir Singh‘s (supra) squarely
applies to the facts of this case.
31) I find no reason to permit the Respondents either to file a
reply to the Interim Application or to address oral arguments in the
26/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::
Ashwini 3-osia-1809-2024-J.docmatter.
32) Interim Application is allowed in terms of prayer clause
(b) altered as under:
“The Prothonotary and Senior Master through his
representative shall lodge an appropriate Complaint
before the jurisdictional Magistrate in respect of the
offences punishable under Bharatiya Nyaya Sanhita,
2023 or Indian Penal Code, 1860 including under
Sections 196, 199, 200, 463 and 471 of the Indian Penal
Code, 1860, alleged to have been committed by the
Caveator. Such Complaint shall be filed in accordance
with Section 340(1)(b) and (c) read with Section 340 (3)
(a) of the Code of Criminal Procedure, 1973.”
33) The Prothonotary and Senior Master to report
compliance and status of the Complaint every three months to this
Court. List matter for compliance on 14th November 2025.
34) All concerned to act on an authenticated copy of this
Order.
(KAMAL KHATA, J.)
27/27
::: Uploaded on – 16/08/2025 ::: Downloaded on – 22/08/2025 22:54:48 :::