SINGHESHWAR PRASAD AND ANR Vs. SAKHICHAND AND ORS

JUDGEMENT

(1.) The facts out of which this application has arisen were as follows: The petitioners were plaintiffs in title Suit No. 29 of 1932 in the Court of the Subordinate Judge of Bhagalpur. In the course of the hearing of that suit they produced certain rent receipts for the purpose of proving their case. The Subordinate Judge found the rent receipts to be forged and dismissed the plaintiffs suit. Against the decision of the Subordinate Judge an Appeal No. 46 of 1936, is pending in this Court. The defendants in the suit applied to the Subordinate Judge for prosecution of the petitioners in respect of the forged documents. In view of the fact that an appeal was pending in this Court from the decision in the suit, the Subordinate Judge considered that the time was inappropriate for initiating a prosecution. He, therefore, rejected the application, at the same time giving the applicants leave to renew their prayer for prosecution after the disposal of the appeal in this Court. Against that order the defendants in the suit preferred an appeal to the District Judge who might himself, if he had thought fit, have made a complaint against the plaintiffs in the suit. The learned District Judge, however, has not made a complaint, but has ordered the case to go back to the Subordinate Judge for re-consideration.

(2.) It is against this order of the District Judge that the present application has been made. The rule that has been issued raises the difficult question of the expediency of staying criminal prosecution pending disposal of civil litigation in which the same question or questions of fact are in issue. On the one hand is the danger that evidence at present available may not be obtainable by the time the first appeal is disposed of. On the other hand, if the prosecution is launched at once, the plaintiffs may find that the criminal Court finds them guilty of forgery, while this Court in first appeal may conceivably find that the documents are not forged. In these circumstances what has to be considered is what step is best calculated to serve the ends of justice without prejudicing either party. For this reason I do not propose to interfere with the order of the District Judge, but to point out how the matter may be considered in the manner best calculated to assist the cause of justice. When the record goes back to the Subordinate Judge he will have to consider whether it is in the interests of justice that a prosecution should be lodged. That is a matter which neither he nor the District Judge has yet decided. If the Subordinate Judge does decide to make a complaint, the Magistrate to whom the complaint is sent or to whom the case may be transferred, will have to exercise the discretion vested in him by Sub-section 3 of Section 476, that is to say, he will have to decide whether it is expedient that the prosecution should be stayed pending the disposal of the first appeal in this Court. In case the Subordinate Judge does make a complaint it will be as well for the Magistrate dealing with it to bear in mind that Section 476(3) confers upon him the power to adjourn the case at any stage. In the event of the prosecution being launched, therefore, the Magistrate will have to consider whether it should be adjourned till the disposal of the appeal and will also have to decide at what stage it should be adjourned, that is to say, whether it will be expedient to adjourn it before taking the evidence or after. I do not propose to interfere with the discretion of the Magistrate at this stage. The rule is discharged. It is desirable that the hearing of the First Appeal No. 46 should be expedited in case the Subordinate Judge decides to make a complaint.