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Vithalrao Annasaheb Qaekwad Vs. Abbasbhai Abdulhusen and the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR815
AppellantVithalrao Annasaheb Qaekwad
RespondentAbbasbhai Abdulhusen and the State
Cases ReferredM.S. Sheriff v. State of Madras
Excerpt:
.....one surety in like amount in favour of the complainant. the learned sessions judge found that the learned magistrate had exceeded his jurisdiction in imposing the particular condition complained of by accused no. the question which i must therefore consider is whether the language of section 344 of the code of criminal procedure is wide enough to permit the imposition of the condition complained against by accused no. it is clear that no terms can be imposed by the court which would place the complainant in a better position than what he would be in if no postponement or adjournment were granted. this is the true interpretation of section 344 of the code of criminal procedure and if this interpretation is borne in mind it is clear that the learned magistrate had no power to impose the..........the trees in the field. after the complaint was filled the accused made an application before the learned magistrate to postpone or adjourn the complaint until the final disposal of the civil suit under section 344 of the code of criminal procedure. the learned magistrate after hearing the parties came to the conclusion that the complaint should be postponed or adjourned until the final disposal of the civil suit but felt that it was necessary to impose certain conditions in order to safeguard the interest of the complainant. the learned magistrate observed that under section 344 of the code of criminal procedure it was open to him to impose conditions in order to protect the interest of the complainant and he therefore passed the following order:the proceedings in this courts criminal.....
Judgment:

P.N. Bhagwati, J.

1. This reference has been made by the Sessions Judge Ahmedabad recommending that that part of the order passed by the Judicial Magistrate First Class Dehgam which required accused No. 1 to furnish an indemnity bond for Rs. 10 0 with one surety in like amount in favour of the complainant be set aside. The complainant filed a complaint against the accused for offences under Sections 427 and 448 read with Section 114 of the Indian Penal Code in the Court of the Judicial Magistrate First Class Dehgam. The case of the complainant was that the field bearing Survey No. 156 was in the possession of the complainant and that the compainant owned all the trees in the field and that the accused had committed criminal trespass on the field and wrongfully cut some of the trees on the field resulting in offences under Sections 427 and 448 read with Section 114 of the Indian Penal Code. It appears that prior to the date of the complaint the complainant had filed a suit in the Court of the Civil Judge Junior Division Dehgam for establishing his right to the ownership of the trees in the field. After the complaint was filled the accused made an application before the learned Magistrate to postpone or adjourn the complaint until the final disposal of the Civil suit under Section 344 of the Code of Criminal Procedure. The learned Magistrate after hearing the parties came to the conclusion that the complaint should be postponed or adjourned until the final disposal of the Civil suit but felt that it was necessary to impose certain conditions in order to safeguard the interest of the complainant. The learned Magistrate observed that under Section 344 of the Code of Criminal Procedure it was open to him to impose conditions in order to protect the interest of the complainant and he therefore passed the following order:

The proceedings in this Courts Criminal case No. 2 of 1960 be stayed upon the accused No. 1 furnishing an indemnity bond for Rs. 10 0 (ten thousand) with one surety in like amount within 15 days hereof in favour of the complainant expressly undertaking not to deal with or temper with the trees in question and in controversy between the parties in this Courts R.C.S. No. 59 of 1958 and to reimburse him or the persons claiming through him for any losses having been occasioned to him as alleged in the complaint or those may have arisen or may arise in future at his instance or by him provided if the complainant ultimately succeeds in establishing his proprietory rights over the said property in dispute between the parties as above.

Accused No. 1 was aggreved by that part of the order which required him to furnish an indemnity bond for Rs. 10 0 with one surety in like amount in favour of the complainant. Accused No. 1 thereupon filed a Revision Application in the Court of Sessions Judge Ahmedabad. The learned Sessions Judge found that the learned Magistrate had exceeded his jurisdiction in imposing the particular condition complained of by accused No. 1 and he therefore made the present reference to this Court recommending that the order of the learned Magistrate in so far as it required accused No. 1 to furnish an indemnity bond and surety for Rs. 10 0 be set aside. Hence the present reference before me.

2. Mr. N.R. Oza learned advocate on behalf of the complainant contended before me that under Section 344 of the Code of Criminal Procedure the learned Magistrate had no power to grant a stay of the criminal case pending before him and that stay could be granted by him only in exercise of inherent powers and that the learned Magistrate while exercising inherent powers was entitled to impose such conditions as he thought fit in order to protect the interests of the complainant. This contention is I am afraid not correct and cannot be accepted by me. It is clear from the record that the application for adjournment of the criminal case pending the final disposal of the civil suit was made by the accused under Section 344 of the Code of Criminal Procedure and that the learned Magistrate also made the order under that section. It is no doubt true that in the operative part of the order the learned Magistrate has used the word stayed in relation to the criminal case pending before him but it is obvious on a reading of the entire judgment that what the learned Magistrate did was to adjourn the criminal case pending the final disposal of the civil suit under Section 344 of the Code of Criminal Procedure. At several places in the judgment the learned Magistrate has categorically stated that the question which he was called upon to consider was whether he should postpone or adjourn the criminal ease before him and he has actually referred to the provisions of Section 344 of the Code of Criminal Procedure at the close of the judgment. The words stayed and adjourned have been indiscriminately used by the learned Magistrate and it is clear from the judgment that the learned Magistrate has in effect and substance adjourned the criminal case pending the disposal of the civil suit under Section 344 of the Code of Criminal Procedure. The question which I must therefore consider is whether the language of Section 344 of the Code of Criminal Procedure is wide enough to permit the imposition of the condition complained against by accused No. 1.

Section 344 of the Code of Criminal Procedure no doubt provides that if from the absence of a witness or any other reasonable cause it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial the Court may if it thinks fit by order in writing stating the reasons therefor from time to time postpone or adjourn the same on such terms as it thinks fit. The Court can therefore as a condition of granting postponement or adjournment impose such terms as it thinks fit. The terms which the Court may impose as a condition of granting postponement or adjournment must however be terms which are relevant to the question of postponement or adjournment. The language of Section 344 of the Code of Criminal Procedure does not authorize the Court to impose terms which are extraneous or irrelevant to the question of postponement or adjournment. When the Criminal case is postponed or adjourned as a result of an application made by the accused it may be that some detriment or injury may result to the complainant by reason of the postponement or adjournment. It is in order to safeguard the complainant against this detriment or injury that terms may be imposed by the Court as a condition of granting postponement or adjournment. The object of imposing terms is to protect the interest of the complainant in so far as his interest may be prejudiced by reason of the postponement or adjournment. The interest of the complainant for the protection of which terms may be imposed by the Court is not any general interest but is interest which would be prejudicially affected due to the postponement or adjournment. The terms which can be imposed by the Court must be such as would put the complainant in the position in which he would be if no postponement or adjournment were granted. It is clear that no terms can be imposed by the Court which would place the complainant in a better position than what he would be in if no postponement or adjournment were granted. The Court cannot in the guise of imposing terms confer on the complainant any advantage which he would not have received if the criminal case were not postponed or adjourned. To put it briefly the terms must be such as compensate the complainant for the injury which may be caused to him by reason of the postponement or adjournment The injury must directly spring from and be relatable to the postponement or adjournment. This is the true interpretation of Section 344 of the Code of Criminal Procedure and if this interpretation is borne in mind it is clear that the learned Magistrate had no power to impose the condition complained of. The condition imposed by the learned Magistrate confers two benefits on the complainant. The first is that it restrains accused No. 1 from cutting or dealing with the trees in the field which are the subject matter of controversy between the parties in the civil suit and the second is that the complainant is given compensation for the trees already cut by accused No. 1 and the trees which might be cut by him in future. These benefits which are conferred on the complainant have obviously nothing to do with the question of postponement or adjournment of the criminal case. These are benefits which the complainant cannot have even if the criminal case is pursued to a successful conclusion. The criminal case is in respect of completed offences and all that the complainant can secure by successful termination of the criminal case is the conviction of the accused for the completed offences. The complainant cannot possibly get any order or injunction restraining accused No. 1 from cutting or dealing with the trees in the field nor can the complainant possibly get any compensation either for the trees already cut or for the trees which may be cut by accused No. 1 in future. I fail to see how as a result of the postponement or adjournment of the criminal case any detriment or injury is caused to the interest of the complainant which requires to be remedied by imposing the condition complained of. The effect of imposing the condition is to confer on the complainant benefits which he would not get as a result of the criminal case even if the criminal case were not postponed or adjourned and of which he is not deprived by reason of the postponement or adjournment. I am therefore of the opinion that the condition imposed by the learned Magistrate was extraneous and irrelevant to the question of postponement or adjournment and was not within the scope and ambit of Section 344 of the Code of Criminal Procedure.

3. Mr. N.R. Oza then contended that if the condition Imposed by the learned Magistrate was bad I should set aside the entire order and not merely the condition subject to which the order of adjournment was made by the learned Magistrate. According to Mr. N.R. Oza the condition and the order of adjournment are inter-related to each other and one cannot be set aside without setting aside the other. The argument was that the learned Magistrate passed the order of adjournment subject to the condition and it is possible that the learned Magistrate might not have made the order of adjournment if he could not impose the condition The learned Magistrate might have in the exercise of his discretion thought it fit and proper to pass an order of adjournment because he might have felt that the condition imposed by him would safeguard the interest of the complainant and that it is quite likely that if he could not safeguard the interest of the complainant in the manner in which he sought to do he might have come to the conclusion that this was not a proper case for adjourning the criminal case pending the final disposal of the civil suit. The question which was therefore pressed upon me by Mr. N.R. Oza was that the entire order of adjournment should in that event be set aside and that the matter must be sent back to the learned Magistrate to decide whether the criminal case should be postponed or adjourned pending the final disposal of the civil suit. The argument though at first blush attractive appears on closer scrutiny to be devoid of merit. The judgment of the learned Magistrate clearly shows that on the facts before him he came to the conclusion that the criminal case should be adjourned until the final disposal of the civil suit. That conclusion is to be found in the first sentence of the last paragraph of the judgment preceding the order. Having come to the conclusion that this was a proper case in which the criminal case should be adjourned until the final disposal of the civil suit the learned Magistrate proceeded to consider whether it was necessary to impose any conditions subject to which the order of adjournment should be made. The learned Magistrate observed that accused No. 1 might repeat his past conduct and cut the trees in the field more particularly so since he resided in the vicinity of the field while the complainant was not even a resident of the district and this particular consideration induced the learned Magistrate to impose the condition in question in order to safeguard the interest of the complainant In this as I have already held the learned Magistrate erred for he took into account a consideration relating to the future conduct of accused No. 1 which consideration was not relevant and did not bear any relation to the criminal case which was for completed offences arising from the past conduct of accused No. 1. It is however clear from the judgment that the learned Magistrate was not influenced in making the order of adjournment by this consideration. This consideration was taken into account only for the purpose of deciding whether any condition should be imposed to the order of adjourment in order to safeguard the interest of the complainant. It cannot be said that the learned Magistrate might not have passed the order of adjournment if he could not impose the condition complained of by accused No. 1. The order of adjournment and the condition complained of by accused No. 1 are clearly District and severable and in my opinion even if the condition is bad the order of adjournment must be sustained.

Mr. N.R. Oza at the close of his arguments referred me to a decision of the Supreme Court reported in M.S. Sheriff v. State of Madras : [1954]1SCR1144 in support of the proposition that as between civil and criminal cases the criminal matters should be given precedence and that criminal proceedings should not therefore ordinarily be stayed pending the disposal of civil proceedings. Mr. N.R. Oza also contended that the learned Magistrate had no jurisdiction under Section 344 of the Code of Criminal Procedure to make an order adjourning the criminal proceeding until the disposal of the civil suit. According to Mr. N.R. Oza the learned Magistrate could adjourn the criminal proceeding for a definite period but could not pass an order adjourning the criminal proceeding until the disposal of the civil suit for it would not be known then the civil suit would end. These contentions of Mr. N.R. Oza might have had to be considered if the complainant whom Mr. N.R. Oza represents had filed Revision Application challenging the order of adjournment No exception was however taken by the complainant to the order of adjournment and I do not therefore see how the complainant can now contend before me on this Reference made at the instance of accused No. 1 that the order of adjournment itself was bad. I do not see any reason why I should interfere with the order of adjournment when it has not been challenged by the complainant in any Revision Application or other proceeding.

I therefore accept the Reference and set aside that part of the order of the learned Magistrate which requires accused No. 1 to furnish an indemnity bond for Rs. 10,000/- with one surety in like amount in favour of the complainant.


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