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Shambu Nath Vs. Moh'd Bhat and Ors. (04.07.1961 - JKHC) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
AppellantShambu Nath
RespondentMoh'd Bhat and Ors.
Cases Referred and Dharmeswar Kalita v. The State
Excerpt:
- .....cr. p.c. was really a bona fide one. the object of the non-appellant was to forestall the civil suit filed by the petitioner.it is also clear that the decision of the civil court on the question of title or possession, is binding on the criminal court and the criminal court: must, enforce the same. in these circumstances, therefore, in my opinion, a case for stay of the criminal proceedings has been made out. reliance was placed by learned counsel for the petitioner on an authority of chief court oudh reported in ml maldiana devi v. kamla pat ram air 1935 oudh 255.i have gone through that decision and it. appears that even in that case also the proceedings under section. 145 cr. p. c were stayed in circumstances almost similar to the present case. apart from this there are a nuiirsher.....
Judgment:
ORDER

S.M. Fazl Ali, J.

1. This is an application directed against an order of the trial magistrate refusing to stay the proceedings drawn under Section 145 of the Code of Criminal Procedure between the parties.

2. From the admitted facts, it appears that the subject matter of the Proceeding under Section 145 Cr. P.C. is the same as that of a civil suit instituted by the petitioner prior to the institution of the proceedings under Section 145 Cr. P.C. The suit is one for permanent injunction, and therefore, the only question to be decided in that case is the question of possession.

It is also admitted that the civil suit has been filed previous to the proceedings under Section 145 Cr. P.C. and the decision, in the civil suit will, no doubt, settle the dispute finally between the parties. Under these circumstances, the question for me to consider is as to whether the criminal proceedings should be stayed. It is true that normally this Court does not exercise its extraordinary jurisdiction] under Section 561-A Cr. P.C. to stay the proceedings, merely because a civil litigation, is pending but) where the questions at issue are absolutely identical and the parties are the same, and there is a danger of two contradictory orders coming into existence, the court will certainly stay the criminal proceedings in the ends of justice.

In this particular case, it appears that the main question of possession to be decided is identical in both the proceedings. The petitioner haying filed the civil suit prior to the criminal proceedings id cannot be said that the act of the non-applicant in initiating the proceedings under Section 145 Cr. P.C. was really a bona fide one. The object of the non-appellant was to forestall the civil suit filed by the petitioner.

It is also clear that the decision of the civil court on the question of title or possession, is binding on the criminal court and the criminal court: must, enforce the same. In these circumstances, therefore, in my opinion, a case for stay of the criminal proceedings has been made out. Reliance was placed by learned Counsel for the petitioner on an authority of Chief Court Oudh reported in ML Maldiana Devi v. Kamla Pat Ram AIR 1935 oudh 255.

I have gone through that decision and it. appears that even in that case also the proceedings under Section. 145 Cr. P. C were stayed in circumstances almost similar to the present case. Apart from this there are a nuiirsher of authorities which lay down that whore the subject matter of the two proceedings are identical, the subsequent proceedings should be stayed. I might in this connection refer to Chevraya Goundan v. Athappa Goundan AIR 1924 Mad 88 and Dharmeswar Kalita v. The State AIR 1952 Assam 78.

The learned magistrate does not seem to have exercised his discretion judicially in refusing the prayer for stay of the criminal proceedings, in the circumstances of the case. It has been brought to my notice that although the learned magistrate had attached the lands tinder Section 145(4) Cr. P.C. yet lie has not exercised proper control over the attached property. The petitioner made several petitions to the court pointing; out that the receiver appointed by the court had allowed the non-applicants to cultivate the lands and take away the crops.

The magistrate did not did not investigate into these allegations. The magistrate should have investigated into these allegations and if it was true that the non-applicant had been allowed to cultivate the lands, the court should have asked the receiver to collect the crops from him and to deposit it in the court and dispose it of in, accordance with law.

3. For the reasons given above, the application is allowed and the proceedings under Section 145 Cr. P.C. are stayed pending the decision of the civil suit, filed by the petitioner.

4. In the meantime the learned magistrate will take steps to see that the receiver of the property discharges his duties properly and does nod allow any of the parties to meddle with the crops of the lands during the pendency of the proceedings.


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