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2008 DIGILAW 335 (CHH)

Ashish Singh v. State of Chhattisgarh

2008-11-19

T.P.SHARMA

body2008
ORDER This revision petition is directed against the order dated 15.10.2008 passed by the Judicial Magistrate First Class, Bilaspur in Criminal Case No. 177/2008 whereby learned Magistrate after affording opportunity of hearing to the parties rejected the application filed by the petitioners for their discharge of the offences punishable under Sections 147, 448 and 506 of the Indian Penal Code. 2. The order is challenged on the ground that after lodging the FIR complainant Arun Singh Thakur filed Civil Suit No. 18- A/2005 before the Civil Judge Class II, Bilaspur against four persons who are not the petitioners before this Court for permanent injunction in which the Civil Court recorded a finding that the complainant has not been dispossessed illegally. Finding of the Civil Court is binding upon the Criminal Court but the Criminal Court has not considered the said finding of the Civil Court and thus committed an illegality. 3. Heard counsel for the parties and perused the order impugned, material available on record and the judgment and decree passed by the Civil Judge, Bilaspur. 4. Counsel for the petitioners submits that the complainant lodged the F.I.R. on 08.07.2004 against the owner of the suit house and these petitioners for the offences punishable under Sections 448 and 506 of the Indian Penal Code and finally the charge sheet was filed against them for the offences under Sections 147, 448 and 506 of the I.P.C. 5. According to the case of prosecution complainant was the tenant of one S.M. Khan. In the said tenanted house the alleged incident is said to have taken place. After filing F.I.R. the complainant filed civil suit No.18-A/2005 before the Civil Judge, Class II Bilaspur which was dismissed vide judgment and decree dated 02.05.2006 in which it has been held that the complainant has not claimed any relief of declaration relating to the compromise entered into between the parties on 07.07.2004 which shows that complainant has vacated the tenanted premises where the incident is alleged to have taken place on 07.07.2004 and the said document is binding on the parties. After disposal of the civil suit between the contesting parties the criminal proceedings were registered on the same fact. After disposal of the civil suit between the contesting parties the criminal proceedings were registered on the same fact. Counsel for the petitioners place reliance on the decision of the Supreme Court in the matter of V.M. Shah v. State of Maharashtra & another1 in which it has been held that the findings recorded by the Civil Court are binding on the criminal proceedings. Relevant portion reads as under: 11. As seen that the civil Court after full dressed trial recorded the finding that the appellant had not come into possession through the company but had independent tenancy rights from the principal landlord and , therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate Court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal Court, stand superseded by the findings recorded by the civil Court, Thereby, the findings of the civil Court get precedence over the findings recorded by the trial Court, in particular, in summary trial for offences like Sec.630. The mere pendency of the appeal does not have the effect of suspending the operation of the decree of the trial Court and neither the finding of the civil Court gets nor the decree become inoperative. 6. On the other hand, the order impugned is supported by the counsel for the respondent / State and it is submitted that the complainant was in possession of the tenanted premises of one S.M. Khan and the applicants took away the property belonging to the complainant which was recovered from the courtyard of the vacant house of one Murlidhar Gangwani. Therefore, the order impugned framing the charge against the present petitioners is just and proper and calls for no interference. 7. Perusal of the charge sheet it is apparent that the complainant was the tenant of one S.M. Khan who on 08.07.2004 along with 50-60 persons entered the tenanted premises which was in the occupation of the complainant armed with sword, battle-axe, knife and club and obtained his signature on two stamp papers. After threatening him they also took away the property belonging to the complainant. F.I.R. was lodged on the same day. After threatening him they also took away the property belonging to the complainant. F.I.R. was lodged on the same day. The judgment and decree passed in Civil Suit No.18-A/2005 revels that after commission of the offence he has filed the Civil Suit against S.M. Khan, K. Khan and two State authorities, for permanent injunction in which it has been alleged that the complainant was the tenant of S.M. Khan who along with 50-60 persons entered the house of the complainant and obtained his signatures forcibly on two stamp papers and thus tried to evict him from the tenanted premised. He claimed a permanent injunction in which the Civil Court framed the issue No.2 which reads as under: Whether the defendants are illegality evicting the plaintiff from the suit house? After recording the evidence the Civil Court has answered the issue as "not proved" on the basis of findings contained in paragraph 13 of the said judgment. 8. The Civil Court has considered the fact that the complainant was required to seek the relief for cancellation of the alleged agreement Ex.D/1 entered into between the parties and in the absence of seeking such relief the agreement dated 07.07.2004 is binding on the parties. 9. On perusal of the judgment of the Civil Court, it is revealed that on the basis of the suit the defendant i.e. owner of the house has forcibly taken the signature on the document Ex.D/1. He has admitted his signature but he has also explained the circumstances under which he signed the said document and he has not claimed any relief for cancellation of the same. In the absence of claiming any relief the issue No.2 has been decided in negative. This is not the finding of the trial Court that the complainant was not in possession of the suit house. The suit has been dismissed on technical ground that the complainant has not claimed the relief which he is required to claim. The Civil Court has not decided on the basis of any evidence that on the date of incident he was not in possession of the suit house and the landlord and other persons did not enter the premises, which was in occupation of the complainant. 10. The Civil Court has not decided on the basis of any evidence that on the date of incident he was not in possession of the suit house and the landlord and other persons did not enter the premises, which was in occupation of the complainant. 10. In the case of V.M. Shah (supra) it is held by the Apex Court that the findings relating to possession recorded after the full dressed trial is binding upon the criminal proceedings. The finding of the Civil Court relating to the same issue not always supersedes the finding of the Criminal Court. In case of any conflict between the civil proceeding and criminal proceeding, the criminal proceeding may have the precedence. While dealing with the same issue in the matter of V.M. Shah (supra) the Apex Court has held that public interest demands that criminal justice should be swift and it should ensure that the guilty is punished while the events are still fresh in 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 considerations obtaining in any particular case may make some other course more expedient and just. Therefore, each case has to be considered on its own facts. But if the Civil Court after full dressed trial recorded the finding that the appellant has not come into possession then the finding recorded by the criminal court stands superseded by the finding of the Civil Court. 11. In the instant case the Civil Court has not recorded any positive or conclusive finding after full dressed trial. The Civil Court has only answered issue No.2 as "not proved" on the very basis that the plaintiff who was under obligation to seek relief of cancellation of document of agreement has not claimed any relief and as the document bears signature of the plaintiff, it is binding on him. In the absence of any full dressed trial any conclusive finding recorded by the Civil Court, the criminal proceeding against the applicants who were not party before the Civil Court is not in any way affected by the technical finding of the Civil Court. 12. In the absence of any full dressed trial any conclusive finding recorded by the Civil Court, the criminal proceeding against the applicants who were not party before the Civil Court is not in any way affected by the technical finding of the Civil Court. 12. The court below by the impugned order has refused to discharge the accused persons of the offences punishable under Sections 147, 448 and 506 IPC. I do not find any illegality or infirmity in the order impugned. 13. Consequently, the revision petition being without substance is liable to be dismissed and it is hereby dismissed. 14. I.A. No.01/2008 for also stands disposed of.