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Raj Kunwar Singh Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1921All365; 60Ind.Cas.428
AppellantRaj Kunwar Singh
RespondentEmperor
Excerpt:
.....application for stay of proceedings thereunder initiated by a civil cout--question at issue in the criminal proceedings also sub judice in a civil case--procedure--jurisdiction. - - in any case, as has rightly been argued on behalf of the applicants, a mere expression of opinion by this court that the proceedings in question might well be suspended, woull probably be sufficient to give tho applicants what they desire. this seems to me altogether inexpedient, in the present case, a further question has been suggested whether there are not documents which may be required in the course of the criminal trial, not at present on the record of the civil suit, which may, nevertheless, require to be brought as speedily as possible into the safe custody of the court of the subordinate judge...........as an application in civil revision, governed by the provisions of section 115 of the code of civil procedure, makes it impossible to regard these applications as governed by anything in the code of criminal procedure. i am only regard the applications, therefore, as invoking the general powers of superintendence of this court over the proceedings of all ourcs subordinate to it. i am not prepared to say that it would not be within the jurisdiction of this court, under those powers, to direct a presiding officer of any civil court subordinate to it to adjourn for a time any proceeding, of whatsoever nature, which he might have initiated by virtue of any powers exercisable by him as the presiding officer of such court. in any case, as has rightly been argued on behalf of the.....
Judgment:

Piggott, J.

1. I have before me two applications which have been preferred as miscellaneous applications iu First Appeal No. 198 of 1920. The unusual nature of the applications is apparent as much from the headings as from the actual contents of these papers. The names of the parties to the first appeal are of course given, but the miscellaneous application, as it describes itself, is made in terms as against the King-Emparor, opposite party, and notice has, under the orders of this Court, gone to the Government Advocate and to no one else, An appearance has been entered on behalf of the plaintiff respondent to the first appeal, but I do not think I should be justified in taking any action upcn this fact, seeing that notice was not ordered to go to him. The two applications are connected in this way. Raj Kunwar Singh is the defendant appellant in First Appeal No. 198 of 1920; which has been admitted and is pending yi this Court; the other applicant, Sundar Lal, is described in the affidavits before me as a Pairokar on behalf of the defendant in the court below, and it is stated that he was allowed to be examined by the plaintiff during the proceedings in that court in connection with a certain matter. The suit in the court below was decided in the plaintiff's favour, and one of the points in controversy was as to the genuineness of two documents, the production of which in the trial court took place on the application of the defendant. The learned Subordinate Judge in deciding the suit has held those documents to be forgeries. He has now taken action under Section 476 of the Code of Criminal Procedure and has issued notice to the defendant Raj Kunwar Singh, and also to Sundar Lal, to show cause why their prosecutioa should not be ordered for offences punishable under Sections 471 and 4/1,7/0,1/9 the Indian Penal Code The prayer in each of the two applications before me is that these proceedings be stayed pending the decision of the appeal by the defendant to this Court. It is not suggested that a stay order of this nature could be obtained under any provision of the Code of Civil Procelure. The established praciice of this Court, resting upon a course of judicial decisions which treat any application in revision against an order of a subordinate Civil Court passed under Section 476 of the Code of Criminal Procedure as an application in Civil Revision, governed by the provisions of Section 115 of the Code of Civil Procedure, makes it impossible to regard these applications as governed by anything in the Code of Criminal Procedure. I am only regard the applications, therefore, as invoking the general powers of superintendence of this Court over the proceedings of all ourcs subordinate to it. I am not prepared to say that it would not be within the jurisdiction of this Court, under those powers, to direct a presiding officer of any Civil Court subordinate to it to adjourn for a time any proceeding, of whatsoever nature, which he might have initiated by virtue of any powers exercisable by him as the presiding officer of such court. In any case, as has rightly been argued on behalf of the applicants, a mere expression of opinion by this Court that the proceedings in question might well be suspended, woull probably be sufficient to give tho applicants what they desire. While, therefore, I do not think that applications of this kind ought to be encouraged, I am not prepared to go back on the order of the Judge of this Court who admitted the applications, and to say that it is outside the jurisdiction of this Court to entertain them.

2. The question then arises whether, on the facts stated in the affidavits before me, supplemented as these have been by extracts which have been read to me from a certified copy of the judgment delivered by the trial court in the civil suit out of which the first appeal arises, it is advisable or expedient that any order or direction should be issued to the learned Subordinate Judge in this matter. On the general question of the stay of criminal proceedings when these, on the face of them, raise a question of fact which is still under adjudication by a, Civil Court of competent jurisdiction, as for instance by this Court in first appeal, a valuable note is to be found in Appendix S to the Edition of the Code of Criminal Procedure by Mr. G.P. Boys, Advocate of this Court. The tendency has boon, whenever possible, to secure a fiml adjudication by the Civil Court before the actual trial of the accused persons in a Criminal Court. I do not think, however, that any direct authority can'be quoted for interfering with proceedings by a subordinate Civil Court under Section 476 of the Code of Criminal Procedure merely on the ground that an appeal upon the same facts is pending before this Court. The general intention of the Legislature undoubtedly is that action under Section 476 of the Code of Criminal Procedure should ordinarily be taken by the presiding officer of the Civil Court before which the alleged offence has been committed, and should be taken as promptly as possible upon the termination of the suit in the said court. Waving regard to the present state of the pending file of this Court, it seems probable enough that an order granting these applications would result in the stay of the proceedings initiated by the learned Subordinate Judge for a period of at least 2 years, and probably in those proceedings being continued by some successor in office of that gentleman. This seems to me altogether inexpedient, In the present case, a further question has been suggested whether there are not documents which may be required in the course of the criminal trial, not at present on the record of the civil suit, which may, nevertheless, require to be brought as speedily as possible into the safe custody of the court of the Subordinate Judge. This could be done as part of the preliminary enquiry under Section 476 of the Code of Criminal Procedure, and an order staying the proceedings under that section would interfere with its being done. A curious difficulty has, however, been brought to iny notice in the course of tho argument based upon a reported decision of this Court in Mathura Kunwar v. Durga Kunivar Weekly Notes, 1905, p. 254. On the face of it that decision seems to lay down that, if criminal proceedings are once instituted upon an order by the learned Subordinate Judge as the result of the proceedings now initiated, the fact that a first appeal is pending in this Court would not be regarded as a valid reason in law for the adjournment of those Criminal proceedings, reference being made to Section 344 of the Code of Criminal Procedure. If so, it would almost appear as if a postponement of the criminal prosecution, should this appear desirable in the interests of justice, could only be ordered before the proceedings under Section 476 of the Code of Criminal Procedure came to a termination in an order directing the prosecution of the accused person or persons. I am obliged, however, to the Appendix to Mr. C.P. Boys book, to which I have already referred, for a note which, I have no doubt, is based upon an examination of the actual record of the case in the course of which the decision above referred to was pronounced. This shows that a way was found out of the difficulty, As I have heard the parties at length on the general question of the proper procedure which should be followed, or directed to be followed, in connection with this matter, I think it just as well to express my opinion that a course of action similar to that suggested in Mr. Boys' note might well be followed in the present case.

3. I decline to interfere with the pending proceedings to which these applications refer, and both these applications accordingly stand dismissed.

4. When the accused persons come before a Magistrate, it will be open to them to move this Court, which undoubtedly has, under the Cole of Criminal Procedure itself, very large powers over Criminal Courts of subordinate jurisdiction, to direct a temporary postponement of the prosecution ponding further action in this Court. The further action which I suggest should take the form of moving this Court to expedite the hearing of the First Civil Appeal in connection with which these applications have been made.

5. Assuming that the defendant appellant shows all possible diligence in the matter, and that this Court is prepared to accept the pendency of a criminal prosecution as a valid reason for expediting the hearing of the appeal, there is no adequate reason why the appeal should not be disposed of in such reasonable time as to admit of the stay of the criminal proceedings until its disposal. If it should appear otherwise to this Court when the question of expediting the hearing of the first appeal is raised, then on the principles laid down by the learned Judge who decided the case of Mathura Kunwar v. Durga Kunwar Weekly Notes, 1905, p. 254 the matter will have to proceed to trial in the Criminal Courts, even though the question in issue may be one requiring legal re-consideration on the part of this Court in the First Civil Appeal.

6. I have had to consider the question of the costs of this application and I feel myself in a somewhat unfortunate position, in view of the facts already noticed. I am really not able to allow the plaintiff respondent to the appeal, the costs which have been certified on his behalf, upon ids entering appearance in this matter without having been called upon to do so; the learned Government Advocate, who would undoubtedly have been entitled to his costs, has not been able to certify them.

7. I simply dismiss these applications, making no order as to costs.


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