KUTUBUDDIN KASAMBHAI NAGORI Vs. THE STATE OF GUJARAT

JUDGEMENT

(1.) Only a short point is involved whether an order passed by the learned Magistrate of Metropolitan Court, Ahmedabad on 19.9.1988 below Exh. 7 of Criminal Case no. 2231/86 can be said to be an interlocutory order or not? As we will presently see it is purely an interlocutory order. However, the learned District Sessions Judge before whom the matter was taken up in revision by the original complainant of the said criminal case, had taken a contrary view in Criminal Revision Application No. 250/88. As expressed in his order dated 22.2.1989 the present matter has come up before this Court as agitated by the original accused.

(2.) It is an admitted position that two matters of 1985 are pending between the parties in Small Cause Court at Ahmedabad. One is initiated by the said original complainant who is the respondent in the matter before this Court, whereby he has filed a suit titled HRP with the Small Causes Court and he has sought certain relief therein. Of the said two civil proceedings standard rent application was filed earlier followed by criminal complaint, which in turn was followed by other HRP suit. From this it is quite clear that with regard to the property of which crime is said to have been committed because there is an offence of theft of both movable and immovable property, there is a civil litigation pending. Precisely for this reason a request was made by the accused that till the civil proceedings are disposed of, the criminal proceedings be stayed. Now, it is an established principle that in connection with Section 397 Cr. P.C. what is not final is not necessarily interlocutory. If any authority in this regard is needed, it is AIR 1978 S.C. P. 47. However, so far as the matter before this Court is concerned, there is direct ruling of this court as reported in 22 GLR P. 29 (G.T. Nanavati J.). The Court has dealt with a similar matter and there,on behalf of the petitioner it was submitted that by staying the criminal proceeding the Magistrate has not decided any point involved in the case nor has he determined the rights of liabilities of the parties. That precisely would be the position in all the cases where because of the pendency of civil proceedings, criminal proceedings are stayed. L.A. Shri Sheth appearing for the respondent has submitted strongly that in the said Gujarat decision there was complete identity of causes and in the instant case that is not so. Thereafter, he has pointed out from the order of the learned Sessions Judge that the offences involved also include an offence of theft over and above the criminal trespass.

(3.) He did agree that the trespass is of course in connection with the disputed shop. But with regard to the alleged theft, when we go through the record we find that it relates to the articles that were stored in the shop that is alleged to have been trespassed upon and forcibly taken possession of by the accused. Once this aspect is taken into consideration even for the offence of theft there is complete identity of the subject matter between the two litigations and hence the aforesaid decision to my mind squarely applies.