RAMNARAIN SINGH Vs. MAHATAM SINGH

JUDGEMENT

(1.) The petitioner is being proceeded against in the Court of the Munsif-Magistrate with first class powers at Sasaram, on charges under Sections 465 and 468, Indian Penal Code-A sale deed was executed in his favour by the opposite party Mahatam Singh conveying a portion of survey plot No. 374, measuring 6 kathas, in village Paiga, for a consideration of Rs. 800.00. The sale deed was executed on the 21st of July, 1959, and was also registered on that date. The opposite party, vendor under the sale deed, filed a petition of complaint in the Court of the Sub-divisional Magistrate, Sasaram, on the 24th of June, 1960, alleging that he had not received the consideration for the sale deed and had not endorsed the registration receipt to the petitioner, but he forged his signature on that receipt, and on toot of that receipt, withdrew the sale deed from the Registration office. The Sub-divisional Magistrate had an enquiry made by the Sub-Registrar and, on his report, took cognizance of the case against the petitioner, which was transferred to Mr. L.P. Sinha Munsif Magistrate for trial.

(2.) The petitioner filed Title suit No. 168 of 1960 in the Court of the Munsif, First Court, Sasaram, on the 25th of July, 1960, for a declaration that he had acquired title under the sale deed to the vended property, for recovery of possession as also for a declaration that there was a due delivery of the registration receipt on payment of the consideration of Rs. 800.00 and endorsement in his favour. There was no fraud or forgery in that matter. Mahatam Singh, opposite party, in collusion with others, dishonestly dispossessed the petitioner from the land purchased by him on the 29th of June, 1960. On the 14th of November, 1960, the petitioner appeared in the Court of the learned Munsif-Magistrate in-answer to the notice issued by him and prayed for the stay of the 'criminal proceeding on the ground that an identical question was involved in the title suit instituted by him and it would be a great harassment to him to be involved in both the proceedings, one in the Criminal Court and the other in the Civil Court. There was some chance of conflicting decision as well. The learned Munsif, however, rejected the prayer for stay of the criminal case by his order dated the 14th of November, 1960, and fixed 6th of January, 1961, for recording evidence. The petitioner moved the learned Sessions Judge of Shahabad against the order of the learned Munsif-Magistrate refusing to stay the trial in his Court, but the learned Sessions Judge rejected the prayer. Accordingly, the petitioner has come up to this Court in revision with a prayer for staying the criminal case against him in the Court of the learned Munsif-Magistrate.

(3.) Learned Counsel for the parties have cited a number of decisions in support of their respective cases. For the petitioner, the following decisions have been referred to : 26 Cri LJ 1485 : AIR 1926 All 30 Kanhaiya Lal v. Bhagwan Das and the; Notes on Unreported Cases in AIR 1955 NUC (Bom) 4831 Jamnadas v. The State. Learned Counsel for the opposite party has, however, referred to AIR 1921 Pat 484 Jodhi Singh v. King Emperor AIR 1929 Pat 500 Hirday Narain Singh v. Emperor AIR 1930 Pat 351 Bhagwat Prasad v. Ramkishun Ram Sonar AIR 1931 Pat 411 Jagannath Acharya v. Rajagopalachari AIR 1929 Cal 563 Gopal Chandra Chakravarti v. Suresh Chandra Sanyal M.S. Sheriff v. State of Madras Kishindas Tekchand v. The State Sobha Singh v. Jai Singh AIR 1957 Mys 70 Chikkanarasaiah v. Venkatappa and Ranganayakalu Chetty v. Gopala Chetty. It may be stated, however, that apart from the Patna cases he has laid particular stress on the decisions in and . In AIR 1921 Patna 484, the principle has been laid down that a criminal case should not be stayed pending: disposal of a civil suit when the questions involved are not identical. So far as this principle is concerned, it is settled beyond doubt that any question of stay cannot arise unless the points involved in both the proceedings are identical. In the case of Hirday Narain Singh AIR 1929 Pat 500 it has been held that there is no invariable rule regarding stay of criminal proceedings under Section 82 of the Registration Act pending the issue in a civil suit. Whether a stay would be granted or not is a matter of discretion for the trial Court, The High Court cannot interfere in criminal revision with the order unless the Court has in exercise of its jurisdiction acted in a manner which is unjudicial. Reliance was placed in coming to this conclusion on the observation of Jackson, J. in ILR 50 Mad 839 : AIR 1927 Mad 778 C. Ramiah v. N. Ramiah. The following passage was quoted with approval in that Judgment: It must be assumed that in either Court (Criminal or Civil Court) justice will be done and which Court precedes the other is merely a question of convenience. Of course, in those cases arising out of a disputed title on which it is difficult to draw the line between bona fide claim and criminal trespass, if the title is already the subject-matter of a civil suit before the institution of criminal proceedings, it may be advisable for the criminal to abide the civil trial; The principle accepted by the learned Single Judge of this Court following the decision of the Madras High Court is that in a case of criminal trespass, where a question of bona fide claim may legitimately arise, if a civil suit has been filed before the criminal proceeding has been started, it may be advisable to stay the Criminal proceeding and the result of the civil trial may be conclusive in the matter. Except for such class of cases where the decision of the Civil Court will be conclusive, the Court trying the criminal case may have to decide on the facts of each case whether it would be conducive to justice to stay the criminal proceedings pending the decision of the Civil Court and no hard and fast rule can be laid down in the matter. In the case of Bhagwat Prasad AIR 1930 Pat 351, it has been held that generally speaking, no order should be passed by the High Court staying criminal proceedings pending the determination of a civil suit unless such grounds are made out for the purpose. That is still more so if the civil suit is instituted after the commencement of the criminal case, and if it appears to the Court that a civil suit has been filed with the object of postponing the criminal trial, the latter should not be stayed. It has also been observed in that case following the decision of the Madras High Court; in In re Subramanya Chetty (1902) 2, Weir 415 that if a civil suit has been instituted prior to the criminal proceeding, and if it appears that the criminal case was instituted with the object of prejudicing the trial of the civil suit, the trial of the criminal case might well be postponed. The principle laid down in this decision has been generally followed in this Court. In the case of Jagannath Acharya AIR 1931 Pat 411, it has been held that there is no invariable rule as regards the stay of the criminal proceedings pending the decision by the Civil Court. In that case, however, on facts, it was found that the issues involved in the criminal case and those in a civil suit were not identical a proposition which may well be applicable to a large number of cases where apparently the scope of the criminal trial like that of a civil suit may be identical, but on a clear analysis the position is found to be quite different. It was further decided in that case by Dhavle, J. that the High Court in considering the prayer for stay of one of the two proceedings should proceed on the assumption that in either Court justice will be done and which Court precedes the other is merely a question of convenience. The decision of the Patna High Court in Rameshwar Ram Bhadani v. State of Bihar , however, is not of any material importance inasmuch as, in that case, what was held was that although the civil suit must be deemed to have been instituted earlier, as notice under Section 80. Code of Civil Procedure, was given to the Government by the plaintiff before the institution of the criminal proceeding, still there was no reason to think that a public authority would start a criminal proceeding light-heartedly without fully weighing the pros and cons and the expediency of starting a criminal proceeding, even when the public authority was aware that the accused contemplated filing a civil suit, and some of the points involved in the two proceedings would be the same. So far as the case of AIR 1927 Mad 778 : ILR 50 Mad 839 is concerned the observation of Jackson, J. has been followed' in a number of decisions of the various High Courts and I have referred above to the quotation from that judgment made by Wort, J. in AIR 1929 Pat 500. I may point out that Jackson, J. in this case, however, held that where the points are almost identical, as in the case of a bona fide claim to title and merely criminal trespass, and if a civil suit has been filed earlier than the criminal case, it will be expedient in the interest of justice to stay the criminal proceeding. In the case of Gopal Chandra Chakravarti AIR 1929 Cal 563, however, a Division Bench of the Calcutta High Court consisting of Pearson and Mallik, JJ., has held that where th6 prosecution is at the instance of a private party and it is in the nature of improper pressure sought to be exercised by the complainant against his opponent by a criminal proceeding, when identical questions are involved between the same parties in a civil suit, it is generally desirable that the criminal proceeding should be stayed. Pearson J, who delivered the leading judgment, distinguished on this ground the decision in Rajkumari v. Bamasundari ILR 23 Cal 610 and an observation of Jenkins, C.J. in Lucas v. Official Assignee 24 Cal WN 418 : AIR 1920 Cal 624 (2). The observation of Sir Lawrence Jenkins is as follows: Though no invariable rule can be laid down, it is ordinarily undesirable to institute criminal proceedings until determination of civil proceeding in which the same issues are involved. It is too well known to need elaboration that criminal proceedings lend themselves to the unscrupulous application of improper pressure with a view to influencing the course of the civil proceedings, and beyond that there is the mischief illustrated by this case of criminal proceeding,, being instituted with an imperfect appreciation of the facts where they have not been ascertained in the more searching investigation of a civil Court. In the case of a prosecution for defamation if a civil suit has been filed for damages for a tortious wrong on identical allegations, the prosecution should, as a rule be stayed, in view of the chance of a more searching investigation by a Civil Court. But the conclusion arrived at as a result of the examination of the various decisions bearing on the question was thus expressed in that judgment- An examination of these cases shows that no hard and fast rule can be laid down, and that each case must stand upon its own facts. The criminal proceeding in that case was not stayed although the civil suit was filed earlier and the criminal proceeding was started later under Section 409, Indian Penal Code, for criminal breach of trust as also for conspiracy to commit the offence and falsification of accounts under Section 477A, Indian Penal Code. The same view was expressed in the case of Sobha Singh that no hard and fast rule can be laid down as to when a criminal proceeding can he stayed during the pendency of a civil suit between the same parties relating to the matter and each case must be decided on its own merits. In the case of Kishindas Tekchand a Division Bench of the Bombay High Court went so far as to hold that where the applicant was being prosecuted under Section 441, Indian Penal Code, on the ground that he did not possess any tenancy rights over the premises but he filed a civil suit later on for ft declaration of tenancy rights, making an application for stay of the criminal case, the criminal proceeding should not be stayed on the bare theoretical ground that the question of tenancy can be more properly dealt with by the civil court. It appears to me that the observation of Jackson, J. that where the case is one of merely criminal trespass and a civil suit is for a declaration of title, it may be normally desirable to stay the criminal proceeding was not accepted by the Bombay High Court, but it may be noted that stay was not granted in that case of the criminal proceeding also on the ground that the applicant's conduct showed that he was not serious about prosecuting his suit and was obviously playing for time. That case followed the decision of the Supreme Court in AIR 1954 SC 697. In AIR 1957 Mys 70, a general principle has been laid down to the effect that no hard and fast rule can be laid down as to the circumstances in which a stay in the criminal case has to be ordered. Every case has to be Judged on its own merits. That case also followed the decision of the Supreme Court referred to above. It may, however, be pointed out that in that case also it was held that the finding in the Civil Court as to who was in possession would not finally dispose of the criminal case. In the case of Ranganayakalu Chetty , which judgment was delivered before the judgment delivered in the Supreme Court, Ramaswami, J. has considered a large number of decisions bearing on the question of stay if criminal proceedings pending the decision of a civil suit between the same parties, covering the same ground, and has formulated a number of propositions which show that there is no single rule applicable to cases which may arise] under different sets of facts, but one clear principle that emerges out of it is that there is no hard and fast rule that a criminal case, pending decision in a civil suit, covering the same point, should necessarily be stayed or should not be stayed, and that each case has got to be approached on its own facts, but keeping in view the observation of Jackson, J., in ILR 50 Mad 839 : (AIR 1927 Mad 778). Learned Counsel for the petitioner has, however, referred to a decision of Sulaiman, J. in 26 CriLJ 1485 - (AIR 1926 All 30), wherein it has been held that it is not desirable that proceedings should go on side by side in a Criminal Court a, also in a Civil Court touching the same question and that one of the two proceedings should be stayed. It is normally desirable that the criminal proceeding should be stayed because of the thorough investigation of each of the points in dispute which is likely to be done by the Civil Court and because it appeared that the criminal case was only in the nature of exerting undue pressure upon the accused to succumb to the complainant and allow him unfair advantage in the Civil Court by way of a compromise and Otherwise. Learned Counsel has also drawn my attention to an unreported decision of the Bombay High Court of Shah and Vyas, JJ. in AIR 1955 NUC (Bom) 4831 wherein the following observation occurs: It is against public inters it to allow two competing proceedings in the civil Court and the Criminal Court to proceed simultaneously in respect of the same subject-matter and were there are two such competing proceedings pending the criminal complaint should be stayed pending determination of the civil suit. Upon this matter, therefore, there appear to be conflicting observations of the two Division Bench rulings of the Bombay High Court. It is, however, clear from an analysis of a large number of decisions on this matter that no general rule can be laid down. Whereas it is to be kept in mind as Jackson, J. observed in ILR 50 Mad 839 : (AIR 1927 Mad 778) that a Criminal Court must be deemed to be as competent as a Civil Court to decide the matter before it and that since the policy of law is that civil and criminal proceedings may arise out of the same matter, one giving a civil right to the person aggrieved and the other giving a right to the State to vindicate the right of the public to be protected against a public wrong, criminal proceedings cannot be stayed, in a good many cases, however, where no serious offence is involved, such as in the case of a criminal trespass or defamation, where the matter can be investigated more fully and conclusively in the Civil Court, it may be desirable to stay as a rule the criminal proceedings pending the decisions in the Civil Court. While both Courts are equally competent it is well-settled that the decision of the Civil Court is considered to be more thorough apart from the fact that it is conclusive and, in certain contexts, it may be desirable to stay criminal proceedings pending decision of the civil suit. It is still more so where the prosecution is by a private party. The matter, however, is now covered by the decision of the Supreme Court in wherein it has been held that there is no hard and fast rule but that, as between the civil and criminal proceedings, the criminal proceedings should be given precedence over civil proceedings. Criminal justice should be prompt and effective, and the guilty should be punished for his offence against the law.