STATE OF KERALA Vs. K.P. BALAKRISHNAN

JUDGEMENT

(1.) THIS criminal reference arises under the following circumstances. -

(2.) The action of the District Magistrate cannot be said to be correct.In Haobam Nongyai Singh v.T.B.Singh 1961 -2 Crl.L.J.256(Manipur)a similar situation arose and it was held by the court that: Inspite of an order regarding custody or possession passed by the civil court,the Magistrate passes an order in conflict with the one passed by the civil court,such a conflicting order cannot be allowed to stand and it is a fit case for interference under sections 439 and 561 -A. On an earlier occasion the question seems to have come up before the Punjab High Court in G.S.Tambe v.State of Delhi 1957 Cr.L.J.92 "1956 Punjab L.R.448 where a few bundles of currency notes in the custody of the Criminal court was attached by the Insolven­cy Court(The 2nd Addl.District Judge,Indore ).The Insolvency court was informed that the Magistrate was going to dispose of the property in spite of the attachment.The Insolvency court requested the Magistrate not to pass any order for disposal of the money until further orders passed in the Insolvency proceedings.To this the learned Magistrate replied that the money recovered from the accused belonged to the complainant and that the property did not belong to the accused so as to be attached by the liquidation court and the money was handed over by the Magistrate to the complainant.It was held that the dis­posal of property by the Resident Magistrate was in contra­vention of the provisions of law contained in section 516 -A of the Criminal Procedure Code and in defiance of the pro­hibitory orders issued by the courts of competent jurisdic­tion ;.It was further held that the action of the Resi­dent Magistrate was improper and illegal and constituted an abuse of the process of court ;. In the same way in the present case also the District Magistrate was not justified in proceeding with the sale in the face of the prohibitory order served on her from the Sub Judge under Order 21 rule 52 C.P.C.In Johnson v. Saramma 1956 K.L.T.80 this court has observed in a case where the Magistrate refused to give effect to a stay order issued by the civil court that to maintain healthy relations between the civil and criminal branches of the judiciary the Magistrate should have respected the order ;.In any event,therefore,the Magistrate instead of proceeding with the sale straight­away,should have told the civil court of the expediency of the sale "if in fact the sale was expedient "and proceeded further,with the concurrence of the civil court.Courts have often held that stay of criminal proceedings can be allowed only on special and justifiable grounds,on the principle that the policy of the criminal law is to bring an accused to justice as speedily as possible so that if found guilty he may be punished and if innocent he may be let off as early as possible.But that is not the position here.We are concerned here with the question whether under sec­tion 516 -A of the Code it was expedient for the Magistrate,to have hurriedly proceeded with the sale in the face of the prohibitory order from the civil court.The position of the District Magistrate in this case is that of a garnishee hold­ing the property of the defendant and in that case also she ought to have respected the order and given effect to it.But now that the sale having taken place and the money is in the custody of the court,the ends of justice are not defeated,and disbursement can be made in accordance with the final result of the proceedings.All that I wish to observe is that in future for healthy relations to be maintained between the civil and criminal judiciary,such situations should be avoided and attachment order issued by a civil court should be respected and given effect to by the criminal court.The reference is thus answered.