NARENDRAKUMAR JAYANTILAL v. STATE — 1966 DIGILAW 8 (GUJ)

N. G. SHELAT, J. ( 1 ) THE material point however is as to whether the criminal proceedings are required to be stayed. In this connection Mr. Chhatrapati had referred to various decisions in support of the contention that where there is an identity of cause and there would be embarrassment to the accused the criminal proceedings as a rule are required to be stayed. That would be also necessary to avoid the waste of time by having double proceedings going on before two different Courts. The first case referred to by him was one of Thakorlal Vadilal v. Ambalal Bhikhabhai Patel reported in 44 Criminal Law Journal 100. In that case it was held by Beaument C. I. that the court should in dealing with an application for stay of criminal proceedings pending a civil suit between the parties consider where the public interest lies and not merely where the supposed interest of the particular complainant lies. The interest of the public is opposed to multiplicity of proceedings. The Court should not regard the matter as a sort of competition between the Civil and Criminal Courts. The point stressed in this particular case was that the interest of public is opposed to multiplicity of proceedings and that the prosecution can wait and proceed with after the rights of the parties have been adjudged in the civil suit. Then I was referred to an unreported decision in Appeal No. 3 of 1954 in the High Court of Judicature at Bombay. That decision was given by the Division Bench of Chagla C. J. and Shah J. as he then was on 12th August 1954. In this case they happened to consider the effect of the Supreme Court case reported in M. S. Sheriff v. State of Madras A. I. R. 1954 S. C. 397. The Supreme Court case has been relied upon by Mr. Thakore the learned advocate appearing for opponent No. 2. The observations are quite important and they deserve to be set out as under:-AS between the civil and the criminal proceedings the criminal matters should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration. The observations are quite important and they deserve to be set out as under:-AS between the civil and the criminal proceedings the criminal matters should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other or even relevant except for certain limited purposes such as sentence Aor damages. The only relevant consideration is the likelihood of embarrassment. Another factor which weights with the Court is that a Civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This however is not a hard and fast rule. Special consideration obtaining in any particular case might make some other course more expedient and just. For example the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to prosecution ordered under sec. 476. While considering the effect of the Supreme Court case Chagla C. J. pointed out that the supreme Court does not lay down as a rule that where there is a civil suit between the parties and a criminal prosecution where same issues arise and same questions have to be determined the Court should stay the suit and not the criminal proceedings. He has then observed that if with great respect the Supreme Court has laid down any such proposition then it would seem to us that it would be contrary to the ordinary practice which has been followed by this Court for several years. He has then observed that if with great respect the Supreme Court has laid down any such proposition then it would seem to us that it would be contrary to the ordinary practice which has been followed by this Court for several years. Then he has set out the ordinary practice of that Court by saying that when there is a criminal proceeding and a suit and issues are common it is much more satisfactory to get the decision of the civil Court on the issues rather than to get the decision of the Criminal Court on the very issues. It is unnecessary to discuss the details of the decision in those two cases for the simple reason that it has been uniformly observed that there is no hard and fast rule and the circumstances of each case would have to be judged and the Court has to arrive at its own conclusion as to what proceedings are required to be stayed. The dominating idea behind determination of such a question should be where such common questions arise to be determined by both the courts one has to ask oneself apart from other considerations which may help in arriving at the conclusion that the Court desires to come to whether there is a likelihood of embarrassment or prejudice to the accused in the case by reason of the simultaneous prosecution of the criminal complaint and the civil suit in different courts. The same view has been taken by this Court in a case of Jinabhai Ambaram Surti v. The State and another 4 Guj. L. R. 559 It has been affirmed by the Division Bench of this Court in Criminal Revision Application No. 187 of 1963 decided on 24th February 1964. As observed in that case main considerations that should prevail in deciding the question of stay are identity of cause and likelihood of prejudice or embarrassment to the accused. These considerations have to be weighed in the light of the facts and circumstances of each case. If these tests are satisfied the normal practice is to stay criminal prosecution during the pendency of the civil suit. Having these broad principles before us who have to turn to the facts and circumstances of the ease with a view to determine whether the Criminal proceedings taken out by the complainant require to be stayed. If these tests are satisfied the normal practice is to stay criminal prosecution during the pendency of the civil suit. Having these broad principles before us who have to turn to the facts and circumstances of the ease with a view to determine whether the Criminal proceedings taken out by the complainant require to be stayed. ( 2 ) I have already set out the points of dispute between the parties in both the proceedings one in the Criminal Court and the other in the small Cause Court. The dispute centres round one dominating fact and that is as to whether the plaintiff or the complainant is able to prove before the Court that he had a lawful right to occupy the suit premises in pursuance of an agreement of oral lease and that he was in occupation thereof as alleged in the cases filed by him. Before any reliefs can be given to him in the Civil Court these issues would have to be decided. The same questions would have to be determined by the Criminal Court before it can decide as to whether the accused had committed the offences with which they have been charged. If the decision of the Civil Court was that there was no right of tenancy created at all and that there was no lawful possession of the suit premises in him as alleged naturally that position would help the accused in placing that fact before the Criminal Court and have its weight considered by the same. In this connection it was urged by Mr. Thakore that however common the questions may be for the Courts to decide the Criminal Court not being subordinate to the Civil Court it would not be bound by any such decision and even the judgment of the Civil Court while it may be relevant in certain respects cannot be binding on the criminal. Court so as to require the Criminal Court to say that it would go by it and that it shall not proceed further in respect of the issues arising before it. It is true that the judgment of a Civil Court would not bind the Criminal Court. It may not have the effect of finality in that Court. Court so as to require the Criminal Court to say that it would go by it and that it shall not proceed further in respect of the issues arising before it. It is true that the judgment of a Civil Court would not bind the Criminal Court. It may not have the effect of finality in that Court. But as between the parties to the suit the decision has the finality in the sense that the issues arising in the suit having been lawfully decided by the competent Court would bind them subject of course to their right to appeal etc. against the same. That judgment would be a relevant piece of evidence though it would not be binding on that Court. In fact some of the High Courts such as Calcutta and Patna have taken the view that the Criminal Court though not bound by such decisions is bound to give due weight and respect to the determination of the issues by a Civil Court. I have already referred to the observations of Chagla C. J. in the decision given on 12th August 1954 in Appeal No. 3 of 1954 in the High Court of Bombay where it has been said that the ordinary practice of this court is that when there is a criminal proceeding and a suit and the issues are common it is much more satisfactory to get the decision of the Civil Court on the issues rather than to get the decision of the Criminal Court on the very issues. In effect if the Civil Court has so decided say for instance that the plaintiff-complainant was not in lawful possession of the suit premises by reason of his not being a tenant or even a licensee as such the plaintiff complainant would himself think of not pursuing the matter and fighting out fruitlessly in that respect. It is true that the Criminal case is on the basis of the police report and not on a private complaint. But even that was so in the case before the High Court of Bombay and it was submitted that even the person in charge of the prosecution would have to advise the State not to proceed with the prosecution in such circumstances. But even that was so in the case before the High Court of Bombay and it was submitted that even the person in charge of the prosecution would have to advise the State not to proceed with the prosecution in such circumstances. One may no doubt appreciate if in addition to one common point there are several other grounds required to be gone into by the Criminal Court in which event along with those points he may choose to consider the entire evidence that may be led by the parties. In the present case however on the determination of the main issues already referred to here above the reliefs sought for both in the civil proceedings or in the criminal proceedings mainly depend. In other words there is a common subject-matter and an identity of cause between the two litigations pending in two different Courts. ( 3 ) APART from the desire to follow the normal practice as observed by the Division Bench of this High Court in the case referred to above as also in the judgment of Chagla C. J. in Appeal No. 3 of 1954 in the Bombay High Court and having regard to the observations of Beaumont C. J. in Thakorlal Vadilal v. Ambalal Bhikhabhai Patel 44 Criminal Law Journal 100 referred to here above the facts and circumstances of this case do well justify me to prefer to have such common points decided by the Civil Court so as to help in resting the points at dispute and give finality to the rights of the parties in respect of the property in question even though that decision may not in law bind the criminal Court. That would save time and avoid possible conflict of decisions on the same points. Besides in this case it is not the accused who have chosen to go to the Civil Court with a view to have a criminal case filed by the other side delayed or prolonged but the complainant has preferred to go to the Civil Court for determination of his rights over the premises in question as he requires certain reliefs which have been sought for in the suit. The plaintiff who happens to be the complainant for reasons best known to him thus thought that Civil Court would be more appropriate to decide their disputes and enable him to get the possession of the premises and when that is so it is difficult to see except for seeing that the other side is put to embarrassment and harassment how the prosecution of his complaint would at all help him and the case for which he litigates. If inspite of that he feels that he must have the criminal case tried and decided first he can well let go his suit and be content with the decision in the Criminal Court. That would be within his choice and within his hands - The accused would not have any voice in the withdrawal of the suit if that were to be done and in that event he can have his own satisfaction to go on with the criminal case. The proceedings in the criminal case would not help him in the ultimate purpose that he seeks to serve in the present litigation viz. to have the locks opened and to be in the possession of the premises as early as possible. It is in his interest 0to proceed diligently in the Civil Court and have his rights determined as early as possible. It would not be out of place even to observe that the Civil Court should ordinarily help him getting such matters where the criminal proceedings are pending or are stayed in any other Court decided as early as possible. That would be in the interest of the litigant parties as also in having the other court to be able to dispose of the case pending before it. ( 4 ) IN this connection it is also worth noting and about which Mr. Chhatrapatis contention was that the suit was instituted as early as on 19-4-1965 as against the charge-sheet which came to be received by the Court on 28-4-65. Some Courts have taken the view that the matter which has been instituted earlier in the Court should be given the preference. While that may not in itself and cannot in my opinion be a determining factor it does appear in the present case that the charge-sheet was received by the Court on 28-4-65 i. e. after the suit was filed by the plaintiff. While that may not in itself and cannot in my opinion be a determining factor it does appear in the present case that the charge-sheet was received by the Court on 28-4-65 i. e. after the suit was filed by the plaintiff. The complaint was however dated 7-4-65. It may well have been for the police to have finished the investigation early and the charge-sheet could have been received by the Court a little earlier than the filing of the suit. In that event the criminal case could have been said to have been instituted early. It is no doubt true that it is the date when the cognizance of the criminal case is taken by the Court that counts for that is the date of institution of the criminal proceeding under sec. 190 (3) of the Criminal Procedure Code. That has been so held in the case of Jamuna Singh and others v. Bhadai Shah A. I. R. 1964 Supreme Court 1541. From that point of view the cognizance of the case was taken later than the filing of the suit. Nor can a principle that a criminal proceeding should get precedence over the civil one may help in such cases as the dispute is more of a civil nature-affecting the rights of parties relating immovable property and they in effect have to be determined. After all each case has to be considered on its own facts and the Court has to exercise its discretion in a just manner-having regard to the facts and circumstances of the case. In such double litigation between the same parties ordinarily the embarrassment would be to the accused. They would have to face two proceedings in two different Courts started against them by the same person the complainant. Much of the public time will be saved by reason of avoidance of multiplicity of proceedings as also by reason of there being the possibility of conflict of decisions in respect of the rights of the parties relating to the same immovable property. Much of the public time will be saved by reason of avoidance of multiplicity of proceedings as also by reason of there being the possibility of conflict of decisions in respect of the rights of the parties relating to the same immovable property. I have no doubt whatever that the learned Magistrate would ordinarily respect the decision of the Civil Court relating to the rights of the parties as with regard to the immovable property and with such decision obtained from the Civil Court by the parties which binds them if not the Court in that case before it the criminal proceedings would be facilitated and even sometimes put an end to without any difficulty. Whatever that be the interests of justice do demand that the criminal proceedings taken out by the complainant against the accused should be stayed till the disposal of the suit pending in the Court of Small Causes at Ahmedabad between the same parties. ( 5 ) THE order passed by the learned Magistrate is therefore set aside and the criminal proceedings are directed to be stayed till the decision of the civil suit pending in the Court of the Small Causes at Ahmedabad filed by the plaintiff-complainant in this case. Order accordingly. .