JATINDRA KR. BHATTACHARJEE Vs. THE STATE

JUDGEMENT

(1.) THE facts relevant to this revision petition under Section 439 of the Criminal Procedure Code filed by Jatindra Kr. Bhattacharjee must be set out chronologically to appreciate the point that falls for determination. In connection with defalcation of a sum, as big as Rs. 98,000 from the Sub -Treasury, ' Dharmanagar, the petitioner, who was the sub -Treasury Officer at the time of alleged defalcation, was charge -sheeted on 1 -1 -1963, along with two others, under Sections 409 468 and 477, I. P. C. Thereafter, a civil, suit, being Money Suit No. 8 of 1963, was instituted against the petitioner alone by the Government for recovery of Rs. 98,000 and odd for the loss suffered by the Government on account of alleged negligence of the petitioner in the discharge of his functions as Sub -Treasury Officer. The Magistrate's Court at Dharmanagar, in whose Court the criminal case was pending, stayed the same by order dated 7 -11 -1965, on the ground that since the civil suit involving identical facts was pending and since the civil suit ' would primarily be decided on the basis of documents, it was desirable that the civil suit should be disposed of first. That order was not challenged by the State Government, However, on 31 -5 -1966, the prosecution moved the Magistrate praying that the criminal case be proceeded with. That prayer was rejected on 31 -5 -1966. Thereafter, during the course of inspection it came to the notice of the District Magistrate, Shri S. M. Kanwar, that the criminal case against the present petitioner had been stayed. He reached the conclusion, on examination of the records, that the case being "primarily of criminal nature" and the civil suit having been filed only to recover the amount which had been misappropriated, it was 'bad and improper' that the criminal proceedings should be stayed. He, therefore, vacated the stay by an order dated 25 -11 -1966 and directed that the case shall be proceeded with. The consequential steps taken by the District Magistrate were that he firstly withdrew the case on to his own file and then transferred it to Shri P. Nath, the Sub -divisional Magistrate (Northern Zone) at Dharrnanagar. It is against that order of the District Magistrate that the instant revision was filed by Jatindra Kr. Bhattacherjee.

(2.) SHRI R. Ghosh, appearing for the petitioner, was highly critical of the order, dated 25 -11 -1966 of the District Magistrate and branded the same as improper and legally not sustainable. He pointed out that the District Magistrate could not have vacated the order on his own authority even if he was of the opinion that the trial Magistrate had gone wrong in staying the criminal case. At the best, the counsel submitted, the District Magistrate could have reported the matter to the High Court under Section 438, Cr. P. C. Another flaw about that order which was pinpointed by Shri Ghosh, was that it had been made without issuing notice to the petitioner or the Public Prosecutor. I think the criticism is completely valid and wholly justified. The District Magistrate lacked jurisdiction to vacate the stay order on his own authority. Final orders in exercise of revisional jurisdiction on examination of the records of the Subordinate Magistrate can be passed by the District Magistrate only in the cases contemplated by Sections 436 and 437 of the Code. Respecting all other -cases he is bound in law to make a reference to the High Court, The facts of the case in hand fall out of the ambit of either Section 436 or Section 437. Therefore, the only course open to the District Magistrate, if he felt that the case had been stayed without adequate justification, was to refer the matter to this Court for adjudication. Hence, it is not possible to uphold the validity of the order of the District Magistrate or to approve of the method adopted by him in making that order.

(3.) IN support of the contention that it is only proper that the criminal case should be stayed until the civil suit was disposed of, Shri Ghosh placed reliance, on 15 -11 -1969, on the authorities reported in Bishambar Das v. Emperor, AIR 1927 Lah 17, N. B. Chikkathimma Redcli v. State of Mysore, AIR 1952 Mys 37, Dharmeswar Kalita v. The State, AIR 1952 Gau 78 and Srikisson v. Emperor : AIR 1935 Cal 182. The question of stay was, however, thoroughly examined by their Lordships of the Supreme Court in M. S. Sheriff v. : [1954]1SCR1144 , and the observations made therein are conclusive on the subject. I cannot do better than reproduce the principle enunciated in the language of the Supreme Court itself. The relevant observations run as under: