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Bhupendra Nath Barik Vs. Brahmachari Giri and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ552
AppellantBhupendra Nath Barik
RespondentBrahmachari Giri and ors.
Cases ReferredM. S. Sheriff v. State of Madras
Excerpt:
- .....contended that when there is no provision for substitution specially in revisional cases under the code of criminal procedure it would be presumed that such substitution is barred by law and therefore the petitioner should not be allowed to be placed on record after the death of bhupendra. mr. dutta acting as amicus ruriae has submitted before this court that for ends of justice and for proper decision although there is no provision for substitution in the criminal procedure code in the matter of revisional applications. the petitioners should be allowed to be substituted, if the court so desires. in this connection he has dealt with the auestion of substitution in rase of trial before the magistrate, in appeals as also in criminal revisional matters. in the present case however we are.....
Judgment:
ORDER

R. Bhattacharya, J.

1. In this criminal revision an application has been filed by the petitioners. Subodh Bala Barik and others for the substitution of their names in place of their predecessor-in-interest Bhupendra Nath Barik who was the applicant in the revisional application filed aeainst the order of a Magistrate staving a criminal prosecution started by Bhupendra till the disposal of a civil case.

2. The relevant facts leadine to the criminal motion may be stated in brief. Bhupendra filed a criminal case against the accused Brahmachari Giri and: three others on the allegation that by practising fraud on him the latter created an agreement for sale in respect of some property not intended to be sold by the-complainant at a price not settled by him. The Magistrate issued process under Section 467 of the Indian Penal Code. Subsequently the accused Brahmachari Giri filed a suit for specific performance of contract on the basis of the disputed deed of agreement. The learned Magistrate thereafter staved the criminal proceedings until the decision of the civil case as the decision in both the litigations- centred, round the disputed agreement. Against that order Bhupendra filed the present revisional application but unfortunately he died during the pendency of the same. Hence his heirs, wife and children left by him have appeared before this Court to be substituted in his place.

3. As the question of substitution appeared to be interesting. I wanted the assistance of Mr. D. K. Dutta. the learned Advocate as amicus curiae and he aureed to help this Court along with Mr. Baneriee. the learned Advocate for the petitioner. Mr. Bose for the State and Mr. Mukheriee for the accused opposite party. I have heard them all dealing with the matter from all possible aspects.

4. Mr. Banerjee. the learned Advocate for the petitioners wanting to be substituted has submitted that their names should be recorded in place of the deceased petitioner Bhupendra Nath Barik be that the matter may be prosecuted by them. Mr. Bose for the State has aereed with Mr. Baneriee that in the facts and circumstances the Detitioner should be substituted so that they may support the case of Bhupendra Nath Barik. Mr. Mukheriee. the learned Advocate appearing on behalf of the accused opposite party however has contended that when there is no provision for substitution specially in revisional cases under the Code of Criminal Procedure it would be presumed that such substitution is barred by law and therefore the petitioner should not be allowed to be placed on record after the death of Bhupendra. Mr. Dutta acting as amicus ruriae has submitted before this Court that for ends of justice and for proper decision although there is no provision for substitution in the Criminal Procedure Code in the matter of revisional applications. the petitioners should be allowed to be substituted, if the Court so desires. In this connection he has dealt with the auestion of substitution in rase of trial before the Magistrate, in appeals as also in criminal revisional matters. In the present case however we are concerned with the revisional application.

5. It is quite clear that there is no provision for substitution in the Code of Criminal Procedure as we find in Civil Procedure Code. With regard to the revisional applications it appears that there is no provision for such substitution although in matters of appeal and disputes reearding lands as will appear in Sub-section (7) of Section 145 there are some provisions as to abatement and bringing on record of some other persons after the xieath of a carty. In this connection my attention has been drawn to the decision of the Supreme Court in the case of P. K. Mitra v. State of West Bengal reported in : 1959CriLJ256 a judgment delivered be B. P. Sinha. J. on behalf of the Court. The relevant portion touching the auestion of substitution will appear in paragraph 6 of that judgment at pace 147 of the report already mentioned. I auote below some portions of the judgment relevant for our purpose as follows:-

In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is our discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435. do not create anvripht in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.' We also set in the same paragraph as follows :-The Legislature, has therefore, soedficallv provided, by Section 431 of the Code, the rules governing the right of substitution in case of death of an appellant, but there is no corresponding provision in Chapter XXXII. dealing with the question of abatement and the rant of substitution in a criminal revision.

Further down we qet.

Whether it was an accused person or it was a complainant who has- moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be heard and determined in accordance with law. whether or not the petitioner in the High Court is alive or dead, or whether he is represented in Court by a legal practitioner. In hearing and determining cases under Section 430(1) of the Code, the High Court discharges-its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply-to the case of revisional applications.

At the end of paragraph 7 the Supreme Court says.

In our opinion, therefore, where the High Court thinks fit and proper to entertain an application in revision or calls for the record summate. it has the power to examine the whole auestion of the correctness, propriety or leealitv of the sentence of fine which necessarily involves examining the order of conviction itself from that point of view.

6. In this connection Section 440 of the Code of Criminal Procedure. 1898. 'may be considered. According to that section no party has angriest to be heard either personally or by pleader of any Court when exercising its powers of revision; provided that the Court may if it thinks fit when exercisine such powers hear any party either personally or by pleader and that nothing in that section shall be deemed to affect Section 439. Sub-section (2). In the present case however, we are concerned with the Code of Criminal Procedure. 1898. In view of the specific provision in the Code as also from the decisions of the Supreme Court there can be no doubt that in revisional applications there is no right created for the litigants but the Court for ends of justice may hear parties concerned or those interested in the matter or even any other person if it is deemed that he would be assisting the Court in comina to a just and correct decision. We should not also foreet the well-known principles that justice should not only be done but it must be seen that the people should feel that justice is being done. In the present case the complainant was the petitioner challenging the propriety of the order parsed by the learned Magistrate staving the criminal case started by him till the disposal of a civil litieation. As ill luck would have it. the petitioner Bhupendra Nath Barik expired during the pendencv of the motion and after his death his heirs have come up before this Court to support the application filed by their predecessor-in-interest. These petitioners are not aliens. They have inherited the properties of Bhuoendra as heirs and the instant criminal case relates to some deed in respect of some property of Bhupendra Nath which the petitioners as heirs are entitled to inherit. Clearly. therefore, the petitioners are very much interested in the litigation. In the facts and circumstances I feel that in view of the decision already referred to and the scope of Section 439 of the Code of Criminal Procedure. 1898. this Court can hear them on the application pending before this Court after the death of Bhupendra. If this Court hears the petitioners, no preiudice would be caused to the accused opposite party. Mr. Mukheriee. the learned Advocate appearing on behalf of the accused submitted that in revisional application when there is no provision for substitution it should be taken that substitution is barred. I am afraid, when there is no provision for substitution and when there is no provision in the Code that substitution is barred and when this Court has got inherent jurisdiction for ends of justice to hear parties, and specifically when the accused will not be preiudiced in any way the praver for the petitioners to be heard in this revisional application should be allowed that as I have already indicated there is no provision for strictly speaking substitution of the heirs and legal representatives in place of a party by inserting their names in place of the deceased. Of course the petitioners have appeared in this application and they are on record and if they are heard in support of the application filed by their predecessor-in-interest that will for all practical purposes tantamount to substitution though not in literal sense. The revisional application has already been admitted, may be at the instance of Bhupendra. to be decided accordins to law and to see whether there has been any failure of justice due to the order passed by the learned Maaistrate. When the Court 'has taken ruder the duty of considering the matter, it is for the Court to decide whom to hear for the best and proper decision of the dispute. The powers of this Court in this respect are not fettered in any wav by any provision of law.

7. In view of my findings above. I must hold that the petitioners who are the heirs- of Bhupendra Nath Barik shall be heard in support of the application filed.

8. In the result, the application is allowed as indicated and the petitioners shall be heard. Before I part with this matter, I must recognise the assistance given by the learned lawyers of the parties and particularly I must express my gratitude to Mr. Dusts wine has taken much pains to discuss the point at issue in a lucid wav. As the matter is ready for hearing, the original application shall be heard on 10th of June, 1975.

9. (2-7-1975): This revisional application was filed by the petitioner Bhupendra Nath Barik against the order of a judicial Magistrate. Contac. directing stay of a criminal case till the decision of a title suit filed by the accused persons against whom the criminal case was started by the complainant under Sections 420, 423 and 467 of the Indian Penal Code. The alleaation. to be very brief, of the complainant was that the accused Brahmachari Giri obtained by false representation his thumb impression upon a document which was not the one intended to be the document for his execution. It has been alleged that the other accused, persons were in the conspiracy. It is. in short, a case of creation of a forged and false document.

10. The criminal case was started by the complainant on 24-7-1970. Some witnesses were examined in the case and in May. 1972 the accused No. 1 filed a title suit for specific performance of contract on the basis of a document which is alleged to have been executed by the complainant. That document relied upon by the accused in the civil suit is the one ' which is being challenged in the criminal case. On or about 7-9-1973 more than a year after the filing of the civil suit, the accused No. 1 filed an application for stay of the criminal case on the allegation that the dispute regarding the document being involved in the title suit as in the -criminal case, for ends of justice the criminal case should be staved till the final disposal of the title suit filed by the accused. The learned Magistrate on hearing the parties directed on 16-11-1973 that the complainant's criminal case be staved till the decision of the civil action started Toy the accused No. 1, Against that order of stay the instant revisional application has been filed.

11. I have heard Mr. Banerjee the learned Advocate appearing on behalf of the heirs of the petitioner who died in the meantime. Mr. Mukheriee. the learned Advocate apoearinf on behalf of some of the accused including1 the accused No. 1 and also Mr. Bose appearing on behalf of the State.

12. The main Question is whether the criminal case started by the complainant earlier than the civil case started by the accused should be stayed till the final disposal of the title suit. Mr. Mukheriee's contention is that when the dispute in both the cases relates to the Question of genuineness of the document in auestion. ends of justice demands that the criminal case should be kept in abevance till the 'decision of the dispute by the Civil Court. Mr. Mukheriee has arsued that it is a fit case for stay of the criminal case because the subiectmatter of dispute is the impugned document. The material parties are the complainant and the accused No. 1 and. therefore, there would be no prejudice caused to the complainant if the decision is arrived in the Civil Court. Mr. Baneriee has vehemently opposed to this contention of Mr. Mukheriee. His submission is that the forum of the criminal proceedings is auite different and the criminal case should be disposed of as quickly as possible. He has further argued that there can be no occasion for staving the criminal case because the find-ins of the criminal case is not binding upon the Civil Court. Several decisions have been referred to by Mr. Baneriee as also by Mr. Mukheriee. From the proposition of law it is quite clear that there cannot be any hard and fast rule that the criminal case must be staved whenever there is a civil litigation started on the same cause of action or the incident. On this point the decision in the case of M. S. Sheriff v. State of Madras reported in : [1954]1SCR1144 is instructive. That decision was delivered by Justice Bose on behalf of the Court. I quote below the relevant portions for our purposes :-

As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the Civil and Criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

Another factor which weighs with us is that the civil suit often drags on for vears and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure: that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This however, is not a hard and fast rule. Special consideration obtaining in any particular case mieht make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to eive precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.

13. In this case two vears after the filing of the criminal case, the accused started the civil action. The civil suit was filed after the learned Magistrate had already started examining witnesses on behalf of the complainant. The two cases, one criminal and the other civil, were started in two different jurisdictions. The finding of one case in respect of a particular fact will not be bindincuoon the other Court. Every case will be determined according to the facts and circumstances and the evidence which will be adduced. It is no wonder if the same fact proved in one Court is not proved in the other due to insufficiency of evidence in that particular Court. In view of this fact it has been clearly stated that the finding of facts in one jurisdiction cannot be binding in the Court of the other jurisdiction. Every case will be decided accordine to the weight and value of the evidence as would be adduced. In this view of the matter if there is any conflict of decision, there will be no occasion for embarrassment for any Court and this will not prevent the ends of justice. In the instant case, therefore, the decision of a Darticular fact will depend Upon the evidence, facts and circumstances as will appear in each case- Accordine to the principles of Criminal Jurisprudence the criminal cases should be disposed of as quickly as possible. Of course even the civil litigations should not be unnecessarily delayed. Whatever the facts may be in the present case. I do not find any valid reason for staving the criminal case started by the complainant till the disposal of the civil litigation started by the accused two vears subsecment to the institution of the criminal case. The order of the learned Magistrate staving the criminal case till the disposal of the Title Suit No. 125 of 1972 passed on 16-11-1973 must b set aside.

14. In the result, the revisional application succeeds and the Rule is here by made absolute. It appears that the criminal case is lvinenendinr for a lonely period and it is highly desirable that it should be disposed of as quickly as possible according to law. The learned Magistrate will dispose of the case at an early date without any unnecessary delay.

15. Send down the records at once.


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