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2006 DIGILAW 494 (KER)

Laya v. K. V. Sumesh

2006-08-04

K.R.UDAYABHANU

body2006
Judgment :- The relief sought for by the de facto complaint in C.C.No.1883/2002 with respect to the offence under Section 498A, I.P.C. is an order directing the Additional Chief Judicial Magistrate, Ernakulam to stay the above proceedings in exercise of the power under Section 309 Cr.P.C. till the disposal of the civil disputes in the Family Court, Ernakulam in O.P.No.114/2003 & O.P.No.115/2003. The proceedings initiated by the petitioner pending before the Family Court are with respect to dissolution of marriage and realization of money and gold ornaments respectively. The O.Ps. before the Family Court are being tried jointly and the matter is in the process of trial and some of the witness have been examined. The petitioner moved the court of Additional Chief Judicial Magistrate to stay the criminal proceedings till the disposal of the above matters in the Family Court, but was bluntly turned down as per order in M.P.No.1125/2005 on the ground that it appeared that the attempt of the petitioner is only to protract the matter. The court below has rested its finding on the premise that Section 309 Cr.P.C. is enacted for speedy trial and the proposition to stay the proceedings is not intended to be advanced under Section 309 Cr.P.A. The above reasoning according to the petitioner, is facile down right and deeply flawed. 2. Mr. Denizen Komath, counsel for the petitioner has relied on the decisions reported in Vasu Vydier v. State of Kerala (1974 KLT 24) and Madhavan Nambiar v. Bharathan (1995 (1) KLT 591). In the former decision, this Court has exhaustively considered the point in question and has also referred to the decisions relevant mainly the judgment of the top court in M.S. Sheriff v. the State of Madras and Others (AIR 1954 SC.397). 3. On the other hand, Mrs. Saritha David Chungath, counsel for the respondent opposing the petition has brought to the notice of this Court the judgment in Ramachandra Iyer v. N.C. Menon, (1961 KLT 419) and has also based her contentions on the decisions cited by the counsel for the petitioner, particularly the judgment in M.S. Sherrif’s case (op. cit). 3. On the other hand, Mrs. Saritha David Chungath, counsel for the respondent opposing the petition has brought to the notice of this Court the judgment in Ramachandra Iyer v. N.C. Menon, (1961 KLT 419) and has also based her contentions on the decisions cited by the counsel for the petitioner, particularly the judgment in M.S. Sherrif’s case (op. cit). It was also pointed out that in the above it is the accused who had moved the court seeking stay of the criminal proceedings and that the petitioner prosecuting the matter herein herself has moved the court which is on account of a misplaced perception of the legal position and evidently hell-bent to harass the respondent/accused. 4. The Supreme Court in M.S. Sheriff’s case (op cit) has held that no hard and fast rule can laid down although criminal matters should be given precedence is the general principle. Possibility of conflicting decisions in civil and criminal proceedings is also a relevant consideration. The law envisages such an eventuality as it has been expressly refrained from making the decision of one such court binding on the other, or even relevant, except for certain limited purposes such as sentence or damages. The only relevant consideration is the likelihood of embarrassment. It was also pointed out that criminal justice should be swift and sure and 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, before responses get blunted, witnesses pass away and the will to unearth truth weakens. The court in Ramachandra Iyer’s case (op.cit) has quoted the decisions of the Madras High Court, Chitrala Ramiah v. Natukula Ramiah (AIR 1927 Mad.778) and Gnanasigamani Nadar v. Vedamuthu Nadar (52 MLJ 80) to the effect that criminal charge should not be kept hanging indefinitely over the head of a person and that the inherent risk of conflicting decisions of civil and criminal courts as such should not be the basis to stay the criminal proceedings. It is also pointed out that the principle that govern the criminal court is that guilt must be established beyond all possibility of doubt, but the civil court weighs probability. It is also pointed out that the principle that govern the criminal court is that guilt must be established beyond all possibility of doubt, but the civil court weighs probability. But in case if it appears that the criminal proceedings have been initiated just to prejudice the trial of the civil suit or to use the same as a lever to coerce the accused into a compromise of the civil suit, the criminal proceedings can be stayed under Section 309(2) Cr.P.C. till the decision of the civil suit is pronounced. That is why as rightly pointed out by the counsel for the respondent; it is the accused who has resorted to the provision always. 5. It comes out of the above decisions that in appropriate cases the court is empowered to stay the proceedings till the disposal of the civil case and the court is competent in such circumstances to invoke the power under Section 309(2) Cr.P.C. although there cannot be an inexorable formula, straight jacket prescription on inflexible rules in its application. Hence the diverse view point of the court below that Section 309 did not envisage such a power is in conflict with the precedents. All the same, in the instant case I find that the trial of the civil case has commenced and is in mid way. Further considering the nature of the reliefs sought in the civil proceedings and the allegations in the criminal case, it cannot be held that the de facto complaint would be prejudiced in any way if the trial of the criminal case is commenced right now. The case set up for staying the criminal proceedings till the disposal of the civil cases cannot be endorsed. Hence, the writ petition is devoid of merit and is hereby dismissed.