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Jehangir Pestonji Wadia Vs. Framji Rustomji Wadia - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 125 of 1928
Judge
Reported in(1928)30BOMLR962
AppellantJehangir Pestonji Wadia
RespondentFramji Rustomji Wadia
DispositionApplication dismissed
Excerpt:
.....561 a-high court-inherent powers-case of defamation-stay of criminal proceedings till disposal of civil suit-indian penal code (act xlv of 1860), section 500.;the high court has power to stay criminal proceedings during the pendency of civil proceedings in a proper case.;in re shri nana maharaj (1892) i.l.r. 16 bom. 729; bal gangadhar tilak, in re (1902) i.l.r. 26 bom. 785 s.c. 4 bom. l.r. 618; anna ayyar v. emperor (1906) i.l.r. 30 mad. 226; jogiah v. emperor (1908) i.l.r. 31 mad. 510; and goberdhone pramanick v. iswar chunder pramanick (1900) 5 c.w.n. 44, followed.;the mere pendency of a civil suit or appeal is not in itself a sufficient ground for staying criminal proceedings.;in re devji valad bhavani and in re keshav narayan, followed.;if, however, the object of the criminal..........any conviction the complainant may obtain against him would prejudice him in his defence to the civil suit. the complaint before the magistrate was first heard on february 25, 1928, when the accused appeared in person but did not raise this contention, there were two further hearings in march 1928 on the first of which the accused appeared in person and at the second through a pleader. the fourth hearing was on april 4 when the pleader learnt from the accused that a civil suit in respect of the subject-matter of the complaint was pending against him in the high court. on that, the pleader applied to the magistrate to stay the criminal proceedings pending disposal of the civil suit. the magistrate suggested to the pleader that the application in that behalf may be made to this court,.....
Judgment:

Mirza, J.

1. This is an application made on behalf of the accused in certain criminal proceedings now pending against him in the Court of the Presidency Magistrate, Third Court, for stay of those proceedings pending the disposal of 0.0.C.J. Suit No. 2527 of 1927 in which the complainant is the plaintiff and the accused is the defendant in respect of the subject-matter of the alleged offence.

2. Two grounds have been urged on behalf of the applicant. The first ground is that the present proceeding before the Magistrate is not maintainable by reason of a compromise arrived at between the parties in respect of it. On March 4, 1927, the complainant had filed a complaint in the Presidency Magistrate's Court against the accused under Section 500, Indian Penal Code, in respect of two letters which were alleged to be defamatory. While those proceedings were pending, the complainant filed the present complaint against the accused in respect of other similar letters. After the filing of the present complaint, it is alleged by the accused that a compromise was arrived at between him and the complainant to the effect that the accused should plead guilty to the subject-matter of the first complaint and in consideration of his so doing, the complainant would not press for a deterrent sentence in the first complaint and would not prosecute the second complaint. The complainant, by his affidavit, has denied that there was any such arrangement between him and the accused. From the materials before us, we are unable to say whether there was or there was not such an arrangement between the parties. If the accused relies upon any such arrangement, it may be open to him to urge it before the Presidency Magistrate and obtain his ruling on the point. The contention under this head, in our opinion, fails.

3. The second contention on behalf of the applicant is that pending the present complaint, the complainant, on December 14, 1927, filed a suit against him on the Original Side of this Court being Suit No. 2557 of 1927, claiming inter alia Rs. 25,000 by way of damages in respect of the publication of the alleged libel. It is urged on behalf of the applicant that if the Police Court prosecution is allowed to proceed, any conviction the complainant may obtain against him would prejudice him in his defence to the civil suit. The complaint before the Magistrate was first heard on February 25, 1928, when the accused appeared in person but did not raise this contention, There were two further hearings in March 1928 on the first of which the accused appeared in person and at the second through a pleader. The fourth hearing was on April 4 when the pleader learnt from the accused that a civil suit in respect of the subject-matter of the complaint was pending against him in the High Court. On that, the pleader applied to the Magistrate to stay the criminal proceedings pending disposal of the civil suit. The Magistrate suggested to the pleader that the application in that behalf may be made to this Court, if the accused was so advised. From the affidavit of the applicant it appears that the complainant is now in the witness-box under cross-examination.

4. We have heard Dewan Bahadur Rao and Mr. Jinnah on the question of our jurisdiction to make an order of the kind applied for. Mr. Jinnah relies upon Section 56 of the Specific Relief Act, and contends that this Court has no jurisdiction to make an order as applied for except in cases where the prosecution falls under Section 476 or Section 195 of the Indian Penal Code. He contends that there has been no instance of this Court having exercised such jurisdiction.

5. Dewan Bahadur Rao has called our attention to the case of In re Shri Nana Maharaj. I.L.R (1892) Bom. 729. In that case this Court laid down that criminal proceedings for perjury or forgery arising out of a civil litigation should not, as a rule, go on during the pendency of the litigation. The Court, however, did not consider it necessary in that case to make any order but left it to the discretion of the Subordinate Judge to do so in the light of the opinion expressed. In Raj Kumari Debi v. Bama Sundari Debi I.L.R (1896) Cal. 610 the Calcutta High Court had to consider an application similar to the one before us relating to certain proceedings in defamation. At page 619, the learned Judges remark :-

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.

6. At the same page they refer with approval to the case of In re Shri Nana Maharaj and at p. 620 they refer to the case of In re Devji valad Bhavani I.L.R (1893) Bom. 581, where this Court is said to have given a somewhat different expression of opinion from the earlier cases. Dewan Bahadur Rao in dealing with the case of In re Devji valad Bhavani has distinguished it from the case of In re Skri Nana Maharaj. Similarly, ho has distinguished the later case of Bal Gangadhar Tilak, in re I.L.R (1902) Bom. 785. The test seems to be whether the Mirza, J. prosecution is public or private. 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 be the same reluctance on the part of the Court to interfere with criminal proceedings. This was the state of the law prior to the amendment of the Criminal Procedure Code by Act XVIII of 1923, Section 156. By that amendment we have now a new Section 561A added to the Code which recognizes the inherent powers of this Court to interfere in matters and make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. We have no doubt that on general grounds as well as under the powers conferred on us by Section 561A of the Criminal Procedure Code, we have jurisdiction in this matter to stay proceedings before the Presidency Magistrate.

7. Mr. Jinnah on behalf of the opponent states that when the opponent filed the civil suit and claimed Rs. 25,000 by way of damages, it was not his intention to press that claim at the hearing, but the suit was filed by him merely with a view to obtain an injunction against the applicant to restrain him from further repeating or publishing the alleged libels, He has obtained an interim injunction from Mr. Justice Kemp be restraining the applicant pending the hearing of the suit. The defendant undertakes that pending the disposal of the prosecution before the Magistrate, he will not prosecute the civil suit. He further undertakes that at the hearing of the civil suit he will abandon his claim to all but nominal damages of Rs. 5 or so. Mr. Jinnah states that it was never his client's intention to make money out of this litigation, Had the claim for damages as claimed in the suit been persisted in, we should be inclined to grant the stay asked for. The claim for Rs. 25,000 damages being a substantial claim, there is force in Dewan Bahadur Rao's argument that the applicant's defence to such a claim might be prejudiced by any adverse finding against him in the Police Court in respect of the alleged libel, but, as this claim is now abandoned, there does not appear to us to be any further ground for apprehension that if the criminal proceedings are allowed to take their course the applicant's defence to the civil suit would be prejudiced. Having regard to the undertaking given, we do not pass any order on the application. The application will stand dismissed.

Patkar, J.

8. I agree. The High Court has power to stay criminal proceedings during the pendency of civil proceedings. The decisions in the cases of In re Sri Nana Maharaj I.L.R (1892) Bom. 729; Bal Gangadhar Tilak, in re I.L.R (1902) Bom. 785: Bom. L.R. 618; Anna Ayyar v. Emperor I.L.R (1906) Mad. 226; Jogiah v. Emperor I.L.R (1908) Mad. 510; and Goberdhone Pramanick v. Iswar Ghunder Pramaniok (1900) 5 C.W.N. 44, support the contention on behalf of the petitioner that the High Court has ample power to stay criminal proceedings during the pendency of civil proceedings in a proper case. The Magistrate trying a case has inherent jurisdiction to stay proceedings in a pending case, and Section 344 of the Criminal Procedure Code empowers the Court to adjourn the inquiry or trial for any reasonable cause. The legality or propriety of the order of the Magistrate can be considered by the High Court in revision under Sections 435 and 439 of the Criminal Procedure Code and under its power of superintendence under Section 107 of the Government of India Act. 1915. The inherent power of the High Court to pass such orders as may be necessary to secure the ends of justice has been explicitly recognized by Section 561A of the amended Criminal Procedure Code. The mere pendency of a civil suit or appeal is not in itself a sufficient ground for staying criminal proceedings: In re Devji valad Bhavani I.L.R (1893) Bom. 581; In re Keshav Narayan : (1912)14BOMLR968 . On the other hand, if the object of the criminal proceedings in a private prosecution is to prejudice the trial of the civil suit or to use them as a lever to coerce the accused into a compromise of the civil suit, the criminal proceedings can be stayed till the decision of the civil suit. 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 would largely depend on the circumstances of each case. The test in every case would be whether the accused is likely to be seriously prejudiced by the continuance of the criminal proceedings against him during the pendency of the civil proceedings. In the present case, having regard to the undertaking which has been given by Mr, Jinnah on behalf of the complainant, no case has been made out, that the accused is likely to be prejudiced by the criminal proceedings being allowed to proceed during the pendency of the civil proceedings. On this ground I agree with the order proposed by my PatkarJ. learned brother.


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