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Kiritkumar Mohanlal Shah Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR218
AppellantKiritkumar Mohanlal Shah
RespondentState of Gujarat and ors.
Cases ReferredM.S. Sheriff and Anr. v. State of Madras
Excerpt:
- - for example, the civil case might be well near its conclusion and it might be more expedient and just to stay the criminal case. this may well take more than ten years......of judicial magistrate, first class, 2nd court, at baroda, should be stayed till the disposal of a civil suit in the city civil court and the learned extra additional sessions judge has confirmed the order passed by the learned trial magistrate for staying the criminal prosecution till the disposal of the aforesaid suit. the complainant has thereupon invoked the revisional powers of this high court and has contended that the lower courts were wrong in ordering the stay of the criminal case during the pendency of the civil suit.3. the nature of the criminal case, as also the nature of the civil suit must be taken into account before examining the question whether or not, the order for stay is justified. the criminal case which has been stayed has been instituted by the petitioner on june.....
Judgment:

M.P. Thakkar, J.

1. Two parallel proceedings, one in a civil Court and another in a criminal Court, often give rise to the problem (which has raised its head in the present case): Should both continue or only one? Should the civil proceeding bar the way of the criminal one? Would it be the right (and when?) to gag the mouth of the criminal proceeding till the civil action comes to rest in peace?

2. The trial Court has taken the view that a criminal complaint instituted by the petitioner against respondents Nos. 2, 3 and 4 in the Court of Judicial Magistrate, First Class, 2nd Court, at Baroda, should be stayed till the disposal of a civil suit in the City Civil Court and the learned Extra Additional Sessions Judge has confirmed the order passed by the learned trial Magistrate for staying the criminal prosecution till the disposal of the aforesaid suit. The complainant has thereupon invoked the revisional powers of this High Court and has contended that the lower Courts were wrong in ordering the stay of the criminal case during the pendency of the civil suit.

3. The nature of the criminal case, as also the nature of the civil suit must be taken into account before examining the question whether or not, the order for stay is justified. The criminal case which has been stayed has been instituted by the petitioner on June 18, 1973. It is alleged that respondents Nos. 2, 3 and 4 who are the officers of a limited Company doing business under the name and style of Shri Kesariya Investment Limited (hereafter referred to as 'the Kesariya Company') had committed certain offences some time in the first week of June 1973. The allegation, inter alia is to the 'effect that respondents Nos. 2, 3 and 4 had given an assurance to the petitioner that the entire records of Sayaji Mills Ltd., Unit No. I would be handed over to one Amratlal Hargovandas and that it was only on account of the aforesaid assurance given by the said persons that the complainant had executed a deed of conveyance in favour of Kesariya Company (See paragraph 11 of the complaint dated June 18, 1973). It was also alleged by the petitioner in the said complaint that respondents Nos. 2, 3 and 4 had never entertained the intention to carry out the said assurance and that, but for such assurance, the petitioner would not have executed a sale deed in favour of the Kesariya Company, thereby, according to the petitioner, respondents Nos. 2, 3 and 4 had committed an offence punishable under Section 420 of the Indian Penal Code. An accusation was levelled in paragraph 20 of the said complaint that respondents Nos. 2, 3 and 4 had broken open the locks of the trunks and boxes in which account-books were kept and had played mischief with the said account-books. It was alleged that this constituted an offence of mischief within the meaning of Section 425 of the Indian Penal Code. A charge for an offence under Section 379 of the Indian Penal Code was also levelled against them. It is the prosecution arising out of the aforesaid complaint which has been stayed by the lower Courts pursuant to the impugned order. The order of stay is to the effect that the aforesaid criminal case shall be stayed during the pendency of Civil Suit No. 1355 of 1973 instituted by Sayaji Mills Ltd. against Kesariya Company (defendant No. 1) and one Alok Prakash Jain (defendant No. 2) in the City Civil Court at Ahmedabad. The said suit has been instituted in order to claim a decree for possession in respect of books of accounts and records specified in a document dated May 26, 1973 executed between the parties to the Civil Suit. In the alternative, there is a prayer for appointment of a Receiver to take custody of the said records (See paragraph 21 of the plaint).

4. In the first place, neither the petitioner, nor respondents Nos. 2, 3 and 4 are parties to the civil suit. In the second place, in the criminal case, we are not concerned with the question as to who is entitled to the ultimate custody of the books of accounts. In view of these two circum stances, it is difficult to comprehend how the criminal case could be stayed during the pendency of the civil suit, and, to what end. None of the issues arising in the civil suit can have any impact on the outcome of the criminal case. Even so, the lower Courts have upheld the contention of the accused that the criminal case against them requires to be stayed in exercise of the inherent powers of the Court.

5. The law on the subject is settled by the Supreme Court of India in M.S. Sheriff and Anr. v. State of Madras, and Ors. : [1954]1SCR1144 . The following principles emerge from the aforesaid case:

(i) As between a civil suit and a criminal proceeding, criminal matters require to be accorded precedence.

(ii) The possibility of conflicting decisions in the Civil Suit on the one land and the criminal proceedings on the other, is not a relevant con sideration, inasmuch as the decision of one Court is not binding on the other or even relevant except for certain limited purposes, such as sentence or damages.

(iii) The only relevant consideration is the likelihood of embarrassment to the accused person,

(iv) The Court faced with the question of stay of a criminal case till the disposal of a civil suit must take into account the circumstance that a civil suit would drag on for a number of years and that it would be undesirable to stay a criminal case from two standpoints: Firstly, pub lic policy and public interests demand that criminal justice should be swift and sure and that the guilty should be punished while the events are still fresh in the public mind that the innocent should be absolved as early as is consistent with a fair and impartial trial. Secondly, it is undesirable to let things slide till memories of witnesses have grown too dim to be trusted,

(v) No hard and fast rule can be laid down. And, notwithstanding the afore said consideration, there might be peculiar circumstances which might justify special consideration on the fact pattern of an individual case. For example, the civil case might be well near its conclusion and it might be more expedient and just to stay the criminal case.

6. What is more in the light of the realities of the day, the Court must take into consideration the dimension that so far as civil matters are concerned, appeals and further appeals are provided by the law and a civil suit may not come to a final conclusion for a number of years. If a criminal case has to be stayed till the final disposal of a civil suit (and an appeal is a continuation of a suit) a criminal case cannot be disposed of till the matter finally comes to be disposed of by the Supreme Court of India. This may well take more than ten years. Apart from the possibility of the memory of witnesses fading over a number of years, one may also take into account the circumstance that the witnesses on whose evidence the prosecution may be relying may die before the civil suit comes to be finally set at rest. And the evidence recorded in the civil court may not be available to the prosecution in a criminal case. These are circumstances which must be accorded due weighted in deciding the question whether or not, it would be 'expedient in the interest of justice' to stay a criminal case during the pendency of a civil suit awaiting its final outcome in the last Court. In fact, having regard to the principle laid down by the Supreme Court in M.S. Sheriff's case there would be very few occasions on which a criminal Court would be justified in staying the case. In other words, staying a criminal case would be an exception rather than a rule, and that, such an exception would have to be justified on peculiar or special facts and circumstances only when the Court is impelled to the conclusion that the ends of justice so demand having regard to the peculiar fact cluster of an individual case.

7. If one makes a lightening but brief survey of a few situations in which such questions may arise, one can visualize the following categories of cases.

(1) The driver of a vehicle may be prosecuted on the charge of rash negligent driving on a public road so as to endanger human life. He may also be facing a civil action for compensation either in a civil Court or before a Compensation Tribunal under the Fatal Accidents Act. Surely, the criminal case cannot be stayed daring the pendency of the civil action for damages. Even though the central issue would be identical one, viz. as to whether or not the driver of the vehicle was rash and negligent, the standard of proof in the criminal case would be different from the standard of proof in a civil action. In the criminal case, the prosecution has to establish its case beyond reasonable doubt. In a civil suit, the matter will have to be determined on the basis of preponderance of probabilities and the weight of evid ence. That is why even when a driver of a vehicle secures an acquittal, the Civil Court may hold him negligent for the purposes of a civil suit. It is, there fore, difficult to conceive of a case where the Court would readily stay a criminal case in order to give precedence to a civil suit and await its final outcome for years together.

(2) Similar questions may arise in the context of disputes between landlord and tenants as regards possession or withholding of essential supplies, or (3) between two rival claimants of immoveable or moveable properties, or (4) between businessmen who raise a dispute in regard to rights in trade marks or patents, or (5) in proceedings between husband and wife for claiming maintenance.

In all the aforesaid types of cases, the decision of the criminal Court would not have any final or binding effect in a civil suit and there would hardly be an occasion to await the decision in a civil suit. In a maintenance matter for instance, even if the right to claim maintenance is pending between husband and wife in a civil Court or even where the very status is in issue between the parties, the criminal Court would not stay the criminal proceedings, for, the criminal proceeding aims at a speedy and summary remedy.

8. In ultimate analysis, a lot may turn on the question whether or not, the accused would be really prejudiced in his defence or would be really embarrassed in his defence. But then, ordinarily, a criminal case would be over much earlier than a civil suit and there would scarcely be an occasion for prejudice. Prejudice can possibly arise if the civil suit proceeds earlier and an accused person is required to file an affidavit or to disclose his stand in his written statement, or, if he is obliged to step into the witness-box in support of his case in the civil suit during the pendency of the criminal case. Now, in the criminal case, he can keep his mouth shut and can refrain from entering into the witness box. A prejudice is, therefore, likely to arise if the civil suit proceeds earlier rather than if the criminal case proceeds in preference to the civil suit. It is, therefore, rarely that an accused would be justified in praying for the stay of a criminal case during the pendency of an allied civil suit.

9. So far as the facts of the present case are concerned, as observed earlier, in the civil suit, neither the complainant, nor the accused are parties. In the criminal case, the question is whether or not, respondents Nos. 2, 3 and 4 made any representation, knowing it to be false with a dishonest motive? No such question arises in the civil suit. There is, therefore, no ground whatsoever to stay the criminal case awaiting the decision of the civil suit. Both the lower Courts have altogether missed the real point and have stayed the criminal case, even though no case has been made out for such a stay on principle.

The petition must, therefore, be allowed. The order passed by the lower Courts directing the stay of criminal case No. 7500 of 1973 in the Court of the Judicial Magistrate, First Class, 2nd Court, at Baroda, is set aside and it is directed that the learned Magistrate in whose Court the case is pending shall proceed to try the case and dispose it of in accordance with law with expedition.

10. Petition is allowed. Rule is made absolute to the aforesaid extent.


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