RAJ KUNWAR SINGH Vs. EMPEROR

JUDGEMENT

(1.) I have before me two applications which have been preferred as Miscellaneous Applications in First Appeal No. 198 of 1920. The unusual nature of, the applications is apparent as mush from the headings as from the actual contents of these papers. The names of the parties to the first appeal are, of course, given, but the miscellaneous application as it describes itself is made in terms as against the King Emperor opposite party, and notice has under the orders of this Court gone to the Government Advocate and to no one else. An appearance his been entered on behalf of the plaintiff-respondent to the first appeal, but I do not think I should be justified in taking any action upon this fast, seeing that notice was not ordered to go to him. The two applications are connected in this way. Raj Kunwar Singh is the defendant-appellant in First Appeal No. 198 of 1920 which has been admitted and is pending in this Court, the other applicant Sunder Lal is described in the affidavits before me as a Fairokar on behalf of the defendant in the Court below, and it is stated that he was allowed to be examined by the plaintiff daring the proceedings in that Court in connection with a certain matter. The suit in the Court below was decided in the plaintiff s favour and one of he points in controversy was as to the genuineness of two documents, the production of which in the Trial Court took place on the application of the defendant. The learned Subordinate Judge in deciding the suit has held those documents to be forgeris. He has now taken action under Section 476 of the Criminal Procedure Code and has issued notice to the defendant Raj Kunwar Singh, and also to Sunder Lal, to show cause why their prosecution should not be ordered for offences punishable under Sections 471 and 471/109 of the Indian Penal Code. The prayer in each of the two applications before me is that these proceedings be stayed pending the decision of the appeal by the defendant to this Court. It is not suggested that a stay order of this nature could be obtained under any provision of the Civil Procedure Code. The established practice of this Court, resting upon a course of judicial decisions, which treat any application in revision against an order of a Subordinate Civil Court passed under Section 476 of the Criminal Procedure Code as an application in Civil revision, governed by the provision of Section 115 of the Civil Procedure Code, makes it impossible to regard these applications as governed by anything in the Code of Criminal Procedure. I can only regard the applications, therefore, as invoking the general powers of superintendence of this Court over the proceedings of all Courts subordinate to it. I am not prepared to say that it would not be within the jurisdiction of this Court, under those powers, to direct a Presiding Officer of any Civil Court subordinate to it to adjourn for a time any proceeding, of whatsoever nature, which he might have initiated by virtue of any powers exercisable by him as the Presiding Officer of such Court. In any case, as has rightly been argued on behalf of the applicants, a mere expression of opinion by this Court that the proceedings in question might well be suspended would probably be sufficient to give the applicants what they desire. While, therefore, I do not think that applications of this kind ought to be encouraged, I am not prepared to go back on the order of the Judge of this Court who admitted the applications and to say that it is outside the jurisdiction of this Court to entertain them.

(2.) The question then arises whether, on the facts stated in the affidavits before me, supplemented as these have been by extracts which have been read to me from a certified copy of the judgment delivered by the Trial Court in the civil suit out of which the first appeal arises, it id advisable or expedient that any order nr direction should be issued to the learned Subordinate Judge in this matter. On the general question of the stay of Criminal proceedings when these, on the face of them, raise a question of fact which is still under adjudication by a Civil Court of competent jurisdiction as, for instance, by this Court in first appeal, a valuable note is to be found in Appendix Section to the Edition of the Criminal Procedure Code by Mr. G.P. Boys, Advocate of this Court. The tendency has been, whenever possible, to secure a final adjudication by the Civil Court before the actual trial of the accused persons in a Criminal Court, I do not think, however, that any direst authority can be quoted for interfering with proceedings by a Subordinate Civil Court under Section 476 of the Criminal Procedure Code merely on the ground that an appeal upon the same facts is pending before this Court. The general intention of the Legislature undoubtedly is that action under Section 470 of the Criminal Procedure Code should ordinarily be taken by the Presiding Officer of the Civil Court before which the alleged offence has been committed, and should be taken as promptly as possible upon the termination of the suit in the said Court. Having regard to the present state of the pending file of this Court, it poems probable enough that an order granting these applications would result in the stay of the proceedings initiated by the learned Subordinate Judge for a period of at least two years and probably in those proceedings being continued by some successor-in office of that gentleman. This seems to me altogether inexpedient. In the present case a further question has been suggested whether there are not documents which may be required in the course of the criminal trial, not at present on the record of the civil suit, which may nevertheless require to be brought as speedily as possible into the safe custody of the Court of the Subordinate Judge. This could be, done as part of the preliminary enquiry under Section 476 of the Code of Criminal Procedure, and an order staying the proceedings under the section would interfere with its being done.

(3.) A curious difficulty has, however, been brought to my notice in the course of the argument, based upon a reported decision of this Court in Mathura Kunwar v. Durga Kunwar A.W.N. (1905) 254 : 2 A.L.J. 747 : 2 Cr. L.J. 798. On the face of it, that decision seems to lay down that, if criminal proceedings are once instituted upon an order by the learned Subordinate Judge as the result of the proceedings now initiated, the fact that a first appeal is pending in this Court would not be regarded as a valid reason in law for the adjournment of those criminal proceedings, reference being made to Section 344 of the Criminal Procedure Code. If so, it would almost appear as if a postponement of the criminal prosecution, should this appear desirable in the interests of justice, could only be ordered before the proceedings under Section 476 of the Criminal Procedure Code came to a termination in an order directing the prosecution of the accused person or persons. I am a obliged, however, to the Appendix to Mr. G.P. Boys book, to which I have already referred, for a note which I have no doubt is based upon an examination of the actual record of the case in the course of which the decision above referred to was pronounced this shows that a way was found out of the difficulty. As I have heard the parties at length on the general question of the proper Procedure which should be followed, or directed to be followed, in connection with this matter, I think it just as well to express ray opinion that a course of action similar to that suggested in Mr. Boys note might well be followed in the present case.