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Musam Mia and ors. Vs. Kishim Ali Mia and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMusam Mia and ors.
RespondentKishim Ali Mia and anr.
Excerpt:
- - on that the magistrate passed the order now complained against dismissing the application stating that there was a prima facie case under section 494 i......1 and 2, need not be proved in the criminal court as both of them admit the fact. in the civil suit, the validity of the marriage between petitioners 1 and 2 has to be gone into before any declaration could be given to them of their married status. in order to decide that question, the contention of the respondent that he was married to petitioner no. 2 will have to be gone into. thus the subject- matter is identical in the criminal case and in the civil case.5. the statement of the magistrate in his order that the civil suit has been brought to delay the criminal proceedings does not appear to be correct. it is clear from a reading of the plaint that petitioners 1 and 2 really wish to have a declaration of their status as legally married husband and wife and it is stated in.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. This is an application under Section 561-A and 439, Cr.P.C. read with Article 227 of the Constitution of India to stay the proceedings in Criminal Case No. 17 of 1961 in the Court of the S.D.M., Imphal West, till the disposal of the Title Suit No. 39 of 1961 filed by the petitioners 1 and 2 in the Munsiff's Court at Impnal. The respondent Kashim Ali Mia filed a complaint before the Magistrate on 24-1-61 against the 3 petitioners stating that petitioner No. 2 Ibema Bibi is the wife of the complainant, that they lived for sometime as husband and wife that in the month of Poinu 1960, Ibema Bibi was taken by her father Alimuddin Mia, petitioner No. 3, for a feast at his house, that she was thereafter kept in wrongful confinement for some days by petitioner No. 3, that on 22-1-61, Ibema Bibi, was re-married to petitioner No. X at the instigation of her father and that thus all the petitioners have committed offence punishable under law. The 'Magistrate took cognizance of the case and Issued bailable warrants on 24 -1-61 and the petitioners 1 and 3 appeared before the Court and the case underwent 4 adjournments and was posted to 30-3-61 for the appearance of petition' or No. 2 for which petitioners 1 and 3 were taking time and requesting that she may, instead of personally appearing in Court, be allowed to appear through counsel.

2. On 20-3-61, petitioners 1 and 2 filed Title suit No. 39 of 1961 against the respondent in the Munsiff's Court, Manipur, for a declaration that petitioner No. 2 is the married wife of petitioner No. 1 and for a permanent injunction restraining the respondent from committing any act to the injury of the legal character as husband ana wife of the petitioners Nos, 1 and 2. in the plaint, it was stated that on 241-60, petitioner No. 2 was kidnapped by the respondent, but that she was recovered the same day by her people, that thereafter petitioner No. 2 was married to petitioner No. 1 on 22-1-61 and the parties have been residing together as husband and wife, that the respondent has filed a criminal complaint against the petitioners and thereby thrown a cloud on the legal status of petitioners 1 and 2 and that therefore it had become necessary to file the suit for the declaration of the legal character as husband and wife of petitioners 1 and 2. The Munsiff granted an interim Injunction restraining respondent from taking further proceedings in the criminal Court till the final disposal of the petition. The petitioners thereupon applied to the Magistrate on 22-3-61 for stay of proceedings in the Criminal Case until the legal character of the parties was decided by the Civil Court. Respondent also applied for. adjournment till the disposal of the injunction petition. But as the interim injunction was not made absolute and was lifted, the Magistrate did not pass any orders on the application of either party.

3. Then the petitioners filed a second petition in July, 1961 for stay of proceedings. On that the Magistrate passed the order now complained against dismissing the application stating that there was a prima facie case under Section 494 I.P.C. as it was admitted that petitioner 2 was once kidnapped by the respondent and that he felt that the application for stay was filed with the intention to delay the proceedings. Now the petitioners have come up to this Court seeking relief wider Section 561-A Cr.P.C. read with Article 227 of the Constitution.

4. The question is whether the Criminal case should be stayed. From the statement of facts, it will be clear that the matter to be decided in the Criminal Court and the Civil Court is identical, In the Criminal Court, petitioner No. 2 - Ibema Bibi alone can be charged under Section 494 I.P.C. while petitioners Nos. 1 and 3 can be charged only under Section 494 read with Section' 109 I.P.C. To prove the charge, the respondent has to prove his marriage to petitioner No. 2, He has not stated in the complaint when the marriage took place or how long they were living as husband and wife. Marriage between petitioners 1 and 2, need not be proved in the Criminal Court as both of them admit the fact. In the Civil Suit, the validity of the marriage between petitioners 1 and 2 has to be gone into before any declaration could be given to them of their married status. In order to decide that question, the contention of the respondent that he was married to petitioner No. 2 will have to be gone into. Thus the subject- matter is identical in the criminal case and In the civil case.

5. The statement of the Magistrate in his order that the Civil Suit has been brought to delay the criminal proceedings does not appear to be correct. It is clear from a reading of the plaint that petitioners 1 and 2 really wish to have a declaration of their status as legally married husband and wife and it is stated in the plaint that the civil case had to be brought as the respondent had thrown a cloud over the said legal status by filing the criminal complaint under Section 494, I.P.C. Thus, it Is not a case of the Civil Suit being brought to delay the criminal proceedings, but of the civil suit being necessitated as a result of the criminal proceedings taken by the respondent.

6. It was stressed for the respondent that the civil suit was filed two months after the criminal complaint was filed and that the civil suit will naturally take time and that the criminal case should not be delayed until the disposal of the Civil Suit as witnesses are not likely to be available after such long delay. Reliance also was placed on the decision of the Supreme Court M.S. Sherm v. State of Madras : [1954]1SCR1144 , in which the following observations appear:

(15) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is 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 or damages. The only relevant consideration here is the likelihood of embarrassment.

(16) Another factor which weighs with us 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.

Reliance also was placed on the decision Ranganayakalu Chetty v. Gopala Chetty : AIR1953Mad439 and Janikamma v. Appana AIR 1957 Andh Pra 771. The petitioners rely on the decision Dharamdas Hukumtrai v. The State : AIR1956Bom512 .

7. As pointed out by the Supreme Court in the above cited decision, there can be no hard and fast rule. Each case must be governed by the particular facts and circumstances in that case. We are here concerned with a criminal case under Section 494 I.P.C. Of the decisions cited before me, the decision, AIR 1957 Andh Pra 771 alone is relevant. It has also dealt with a case where the criminal case was under Section 494 I.P.C. But the civil case was one for maintenance. In that case, the husband had brought a criminal case against his mother-in-law and certain others under Section 494, I.P.C. The mother-in-law subsequently brought a civil suit as the next friend of her minor daughter against the minor daughter's husband for maintenance. But by then 6 witnesses had already been examined on behalf of the complainant - in the criminal case. Under those circumstances, the Andhra Pradesh High Court held that in that case the subject-matter in the civil suit and the criminal case was not identical, but can be said only to be incidentally in issue in the civil case, that the Criminal Court was entitled to come to its own conclusion, that the application for stay was filed by only one of the accused, that the plaintiff in the civil suit had not asked for stay of the Criminal Case, that the decision in the criminal case will not affect the civil case in any way or vice versa and that as most of the witnesses in the criminal case had already been examined, it was not a fit case for staying the criminal case.

8. But the facts in the present case are quite different. As I said, petitioners 1 and 2 were forced to file the civil suit as their legal status was thrown under a cloud by the, respondent by filing the criminal case and, the main question to be decided In the civil suit is whether the respondent had married petitioner No. 2 as contended by him. It Is the same question which has to be decided in the criminal case also and, hence there is identity of the subject-matter. We cannot also lose sight of the exception to Section 494, I.P.C. to the effect that the said section will not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction. This means that if a Civil Court has declared the first marriage to be void, the husband or the wife of that marriage cannot file a complaint under Section 494, if the wife or the husband marries again. No doubt, the exception relates to a case where there has already been a declaration by a Civil Court. But, the decision of the Civil Court regarding the voidness of the marriage is thus made binding on the Criminal Court. If the Civil Court holds that the respondent was not married to the second petitioner and gives a declaration that the first petitioner was validly married to the second petitioner, it would conclude the matter and the Criminal Court cannot take evidence again on the same question and come to a different conclusion. Section 42 of the Specific Relief Act gives jurisdiction to a Civil Court to entertain such a suit and any finding by the Civil Court will conclude the matter. In such a case, it seems to me that it will amount to great embarrassment for the petitioners, if they are forced to stand a trial in the Criminal Court on this question first and again to have the same matter agitated in the Civil Court. There is also the likelihood of the Civil Court and the Criminal Court coming to conflicting decisions on the point. This will greatly prejudice the accused in the case.

9. Thus, in a Criminal case arising under Section 494 I.P.C. where the finding of a Civil Court will be binding on the Criminal Court and where the Criminal case is only in its initial stages and even the enquiry before the framing of the charge is not over, it seems to me that it is a fit case for the stay of the Criminal case until the civil proceedings are over. I also find that the recording of evidence has already started in the Civil Suit and two witnesses have already been examined and cross-examined. Under those circumstances, the Criminal Case has got to be stayed. But as there should not be any further delay in disposing of the suit in the Civil Court and as the parties are all present before me, there is no difficulty in directing that the civil suit should be proceeded with expeditiously and decided without any further delay.

10. The Criminal case No. 17 of 1961 of the Court' of Shri A.H. Choudhury, S. D.M., I.W. and B. is stayed pending the disposal of Title Suit No. 39 of 1961. The Munsiff is directed to dispose of the Civil suit expeditiously without any further delay. In case, there is any inordinate delay in the disposal of the Civil Suit in spit of this order, the respondent is given liberty to move this Court for cancellation of the stay.

11. Ordered accordingly.


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