VITHALRAO ANNASAHES GAEKWAD Vs. ABBASBHAI ABDULHUSEN

JUDGEMENT

(1.) This reference has been made by the Sessions Judge Ahmedabad recommending that that part of the order passed by the Judicial Magistrate First Class Dehgam which required accused No. 1 to furnish an indemnity bond for Rs. 10 0 with one surety in like amount in favour of the complainant be set aside. The complainant filed a complaint against the accused for offences under sections 427 and 448 read with section 114 of the Indian Penal Code in the Court of the Judicial Magistrate First Class Dehgam. The case of the complainant was that the field bearing Survey No. 156 was in the possession of the complainant and that the compainant owned all the trees in the field and that the accused had committed criminal trespass on the field and wrongfully cut some of the trees on the field resulting in offences under sections 427 and 448 read with section 114 of the Indian Penal Code. It appears that prior to the date of the complaint the complainant had filed a suit in the Court of the Civil Judge Junior Division Dehgam for establishing his right to the ownership of the trees in the field. After the complaint was filled the accused made an application before the learned Magistrate to postpone or adjourn the complaint until the final disposal of the Civil suit under section 344 of the Code of Criminal Procedure. The learned Magistrate after hearing the parties came to the conclusion that the complaint should be postponed or adjourned until the final disposal of the Civil suit but felt that it was necessary to impose certain conditions in order to safeguard the interest of the complainant. The learned Magistrate observed that under section 344 of the Code of Criminal Procedure it was open to him to impose conditions in order to protect the interest of the complainant and he therefore passed the following order :

(2.) Accused No. 1 was aggreved by that part of the order which required him to furnish an indemnity bond for Rs. 10 0 with one surety in like amount in favour of the complainant. Accused No. 1 thereupon filed a Revision Application in the Court of Sessions Judge Ahmedabad. The learned Sessions Judge found that the learned Magistrate had exceeded his jurisdiction in imposing the particular condition complained of by accused No. 1 and he therefore made the present reference to this Court recommending that the order of the learned Magistrate in so far as it required accused No. 1 to furnish an indemnity bond and surety for Rs. 10 0 be set aside. Hence the present reference before me.

(3.) Mr. N. R. Oza learned advocate on behalf of the complainant contended before me that under section 344 of the Code of Criminal Procedure the learned Magistrate had no power to grant a stay of the criminal case pending before him and that stay could be granted by him only in exercise of inherent powers and that the learned Magistrate while exercising inherent powers was entitled to impose such conditions as he thought fit in order to protect the interests of the complainant. This contention is I am afraid not correct and cannot be accepted by me. It is clear from the record that the application for adjournment of the criminal case pending the final disposal of the civil suit was made by the accused under section 344 of the Code of Criminal Procedure and that the learned Magistrate also made the order under that section. It is no doubt true that in the operative part of the order the learned Magistrate has used the word stayed in relation to the criminal case pending before him but it is obvious on a reading of the entire judgment that what the learned Magistrate did was to adjourn the criminal case pending the final disposal of the civil suit under section 344 of the Code of Criminal Procedure. At several places in the judgment the learned Magistrate has categorically stated that the question which he was called upon to consider was whether he should postpone or adjourn the criminal ease before him and he has actually referred to the provisions of section 344 of the Code of Criminal Procedure at the close of the judgment. The words stayed and adjourned have been indiscriminately used by the learned Magistrate and it is clear from the judgment that the learned Magistrate has in effect and substance adjourned the criminal case pending the disposal of the civil suit under section 344 of the Code of Criminal Procedure. The question which I must therefore consider is whether the language of section 344 of the Code of Criminal Procedure is wide enough to permit the imposition of the condition complained against by accused No. 1.