1. This is an application for stay of criminal proceedings pending the decision of the civil suit in which it is contended that the same matters are in issue. Certain other prayers have been made in the application, but those have been given up.
2. The material facts are these-
3. The applicant has a brother named Lalchand whose house has been rented to the Nipani Municipality, or to the School Board of that Municipality, it is not quite clear which. Lalchand is, therefore, entitled to rent from the Municipality. On the other hand, he has to pay taxes to the Municipality, and there appear to have been disputes between them. On March 7, 1932, Lalchand brought a suit against the Municipality for rent and also for an injunction restraining the Municipality from recovering taxes. The opponent is the Chief Executive Officer of the Municipality. After the filing of the suit he levied a distress on a motor garage belonging to the applicant and took away certain goods to recover the amount alleged to be due from Lalchand on account of taxes. The allegation of the applicant is that the opponent was under the impression that the applicant had instigated Lalchand to bring this suit and that therefore he levied this distress mala fide. On March 18, 1932, the applicant brought a criminal complaint against the opponent and another Municipal officer charging them with the offences of housebreaking, theft and trespass. The complaint was not proceeded with, and was dismissed under Section 203 of the Criminal Procedure Code on March 31, 1932. It has been alleged by the applicant that proposals were thereafter made by the opponent for a settlement of the matter and that because of these proposals he did not apply to the District Magistrate to get his criminal complaint restored to the file. On September 7, 1932, the applicant brought a suit against the Municipality and the opponent to recover damages for wrongful distress. We have been informed that the summons in the suit was not served upon the opponent until October 12, 1932, but as it was a suit against the Municipality previous notice of it must have been given, and we think there cannot be any doubt that the opponent must have come to know about it when, or shortly after, the plaint was presented. Then, on September 20, 1932, thirteen days after the filing of the plaint in the civil suit, the opponent filed a criminal complaint of defamation against the applicant, and the defamation is alleged to consist of the charges which the applicant had made against the opponent in his complaint on March 18, 1932. The applicant asks that the trial of this defamation case, the complaint in which was presented after the filing of the suit, should be stayed until the suit has been decided. It is contended that the material issues must be the same in the two cases, viz., whether the applicant's garage was broken open, and, if so, whether it was done bona fide, and so on.
4. Mr. O'Gorman, who appears for the applicant, relies on Anna Ayyar v. Emperor I.L.R. (1906) Mad. 226 where it was held that the defendant in a civil suit ought not to be allowed to prejudice the trial of such suit by launching and proceeding with a criminal prosecution on the same facts against the plaintiff and his witnesses, and such proceedings, if launched, will be stayed by the High Court in the exercise of its powers of superintendence. There are certain passages in the judgment in that case which perhaps indicate that the Madras High Court took the view that a criminal prosecution on the same facts must necessarily prejudice the trial of a civil suit, so that the mere pendency of a civil suit instituted before the criminal complaint would be a ground for staying the criminal proceedings. If it was intended to lay down that proposition, then it appears to be contrary to the view which was taken by this High Court in Jehangir v. Framji : (1928)30BOMLR962 But I doubt very much whether there is anything in the judgment in the latter case which can fairly be relied upon as an argument against staying the criminal proceedings in this present case. Mr. Justice Mirza, in the course of his judgment, cited, apparently with approval, a passage from the judgment in Raj Kumari Debi v. Bama Sundari Debi I.L.R. (1896) Cal. 610 (p. 619):-
In the present case, the prosecution in the Criminal Court is for defamation, which is altogether a private prosecution...No Court can take cognizance of an offence like this, except upon a complaint made by the person aggrieved thereby...In such a case, it seems to me rather undesirable that both the civil and criminal cases should go on simultaneously at one and the same time.
Later on the learned Judge points out the distinction between public and private prosecutions. He says (p. 965):-
Where it is public, the Court, as a rule, in the exercise of its inherent jurisdiction, would not stay criminal proceedings. Where it is private, as in the present case, there would not he the same reluctance on the part of the Court to interfere with criminal proceedings.
From a further passage in Mr. Justice Mirza's judgment it appears that the Court in that particular case would actually have made the order for stay, which was in fact refused, had there not been an undertaking that the plaintiff in the civil suit, who was there the complainant in the criminal proceedings, would not make money out of the double litigation.
5. The case of In re Devji valad Bhavani I.L.R. (1893) Bom. 581 relied upon by Mr. Justice Patkar in support of the proposition that the mere pendency of a civil suit or appeal is not in itself a sufficient ground for staying criminal proceedings, is quite clearly distinguishable from the present case as there was a public prosecution which had been instituted 'before the suit was filed. It may be noted also that Mr. Justice Candy who decided that case began his judgment with these words (p. 584):-
No doubt this Court has often acted on the principle that criminal proceedings should not go on daring the pendency of civil litigation regarding the same subject-matter. But we do not think that this is an invariable rule.
6. Mr. Justice Patkar also cited Anna Ayyar v. Emperor I.L.R. (1906) Mad. 226 to which I have already referred, and expressed no disapproval of it. I do not think it can be said, therefore, that there is anything in Jehangir v. Framji : (1928)30BOMLR962 which can be said to be really inconsistent with the Madras case if the proposition laid down in the latter be taken as a general and not as an invariable rule. Mr. Justice Patkar in his judgment has mentioned certain tests, but it need not be supposed that they were intended to be exhaustive. In fact, they have not been treated as exhaustive, as I pointed out recently in In re Nomanbhai Ahmedalli Tapia (1933) Cr. Rev. Applns Nos. 289 and 397 of 1932, decided by Murphy and Broomfield JJ., on January 11, 1933 (Unrep.). As the learned Judge himself said, the discretion to be exercised by the High Court in ordering stay of criminal proceedings cannot be crystallized into a hard and fast rule, and must largely depend on the circumstances of each case. One point of importance obviously is whether the criminal complaint has been filed before or after the civil suit. If it is filed afterwards an intention to prejudice the civil litigation may often be suspected, especially when, as in the present case, there has been a long delay. We cannot help feeling that if the opponent here had felt a genuine grievance about the complaint which was dismissed on March 31, 1932, he would probably have made his complaint of defamation earlier. An intention to prejudice the civil litigation can hardly be anything but a matter of inference, so that even taking the criterion mentioned by Mr. Justice Patkar, I am not prepared to say that it is not satisfied in the present case. The learned Magistrate, who dealt with the application made to him for stay of the proceedings, appears to have been under the impression that the civil suit and the criminal complaint of defamation were quite distinct and independent, but we do not see how that can be the ease.
7. Mr. Desai, who appears for the opponent, has stated that he does not object to the criminal complaint being stayed until the disposal of the civil suit, although he says naturally that he makes no admissions as regards certain facts alleged in the application. Without expressing any opinion as to these allegations, we hold that this is a proper case to stay the criminal proceedings until the civil suit is disposed of.
8. We, therefore, make the rule absolute and order accordingly.