Sheshrao S/O Suryabhan Barhate vs Sadanand S/O Purshottam Tapswi ...
2004 Latest Caselaw 665 Bom

JUDGMENT

B.H. Marlapalle, J.

1. Heard Shri Patil with Shri Muley, learned Advocates for the petitioner and Shri Naik, the learned Advocate for respondents.

2. Rule.

3. Shri Naik waives service.

4. As the challenge in this petition involves purely legal question to be decided, the parties were heard at length so as to decide the petition at admission stage itself. Hence, the rule was taken up for hearing forthwith.

5. It appears that there was a dispute between the Respondents and one Shri Ganpat Pandurang Chavan and the dispute landed in the Court of law. The Respondent No. 1 addressed a notice on 24th August, 1998 to Shri Chavan, through Shri S. S. Barahate, the present Petitioner, who was an Advocate for Shri Chavan. However, the notice did not stop on making allegations against Shri Chavan but indeed it proceeded to level some slanderous allegations against Shri Barahate, Advocate. Consequently, Shri Barahate filed Special Civil Suit No. 531 of 1998 on or about 9th October, 1998 before the learned Civil Judge, Senior Division at Aurangabad and the same was converted in to Regular Civil Suit No. 996 of 2000. It is presently pending before the learned 2nd Joint Civil Judge, Junior Division at Aurangabad. He also filed a criminal complaint i.e. S.C.C. No. 80410 of 1998 on or about 7th November, 1998 under Section 500 of the Indian Penal Code before the Chief Judicial Magistrate, Aurangabad. The Respondents, therefore, filed an application at Exhibit-90 on 30th July, 2002 after filing their written statement in Regular Civil Suit No. 996 of 2000 on 22nd December, 1999. This application at Exhibit-90 came to be allowed by the learned 2nd Joint Civil Judge, Junior Division at Aurangabad and hence this petition, filed under Article 227 of the Constitution.

6. Shri Patil, the learned Advocate for the Petitioner relied upon the Supreme Court decision in the case of State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. and Ors. 1996 (3) Crimes 92 (SC) and submitted that the view taken by the Court below, by referring to the decisions of this Court in the case of Arvind Kalidas Wadodkar v. Ramdas Devidas Joshi, 1996 (2) Mh.LJ. 907 and Ramanand Nanakram Ladda and Anr. v. Dr. Kachrulal Amolakchand Lodha, 1998(2) Mh.LJ. 112, is grossly erroneous.

7. Shri Naik, the learned Advocate for the Respondents, on the other hand, has supported the view taken by the trial Court to the effect that when civil and criminal cases are pending in respect of the same subject matter, the civil suit is required to be stayed awaiting the decision in the criminal complaint. Shri Naik submitted that the law laid down by this Court in the above cited two cases of State of Rajasthan v. Kalyan and Ramanand Nanakram Ladda (supra) is rightly followed by the trial Court and, therefore, no interference is called for in this petition, filed under Article 227 of the Constitution.

8. In the case of State of Rajasthan (supra) a two Judge Bench stated, thus :

"3. It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal Court would deal with the offence punishable under the Act. On the other hand, the Courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of their power. We have never come across stay of any civil suits by the Courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on a wrong premises that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise, it no longer subsists, since many of them have filed their defences in the civil suit. On principle of law, we hold that the approach adopted by the High Court is not correct......."

9. This Court, in the case of Arvind Wadodkar (supra) had referred to the earlier decision of the Apex Court in the case of M.S. Sheriff v. State of Madras, . After having considered the facts and the provisions of law, a Constitutional Bench in Sheriff's case (supra) summarised the principles in the following words:

(a) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedents. 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.

(b) Another factor which weighs with us is that a civil suit often drags on for years 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.

(c) This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might 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 give precedence to a prosecution ordered under Section 476......."

10. It is, thus, clear that the emphasis placed by the Constitution Bench, while deciding the issue whether the civil case should be stayed till the decision of the criminal case, arising out of the same cause of action, the only relevant consideration should be the likelihood of embarrassment. On the face of the principles set down by the constitution Bench in Sheriff's case (supra) let us examine whether there is any legal authority to stay the proceedings in the civil suit as has been directed by the impugned order passed by the Court below. The answer is in the negative.

11. In S.C.C. No. 80410 of 1998 the present Respondents are the accused and after the process was issued the same has been challenged before this Court in Criminal Writ Petition No. 175 of 2003 by invoking the provisions of Section 482 of Criminal Procedure Code read with Article 227 of the Constitution. This Court passed the following order in Criminal Writ Petition No. 175 of 2003, filed by the present Respondents, on 19th November, 2003 :

"Heard Shri K. S. Naik, Advocate for Petitioner and Shri B. N, Patil, Advocate for Respondent No. 1.

I have gone through the copy of the impugned order passed and also through the order passed in Cri. Revision Application No. 149/91, on which reliance is placed by Shri Naik, Advocate.

Considering the material on record, I find that it is desirable to issue Rule in the present petition.

Hence, Rule.

Call R. and P. and after its receipt, keep for final hearing in due course."

It is, thus clear that Criminal Writ Petition No. 175 of 2003 has been admitted, R. and P. has been called in S.C.C. No. 80410 of 1998 and the petition has been directed to be taken up for final hearing in due course. Nothing remains in the Court of the Judicial Magistrate, First Class or the Chief Judicial Magistrate at Aurangabad so far as the criminal case is concerned and the fate of that complaint would be decided as and when Criminal Writ Petition No. 175 of 2003 is heard and decided by this Court and that too in due course. With the present pendency, perhaps, the said petition may not be listed for final hearing atleast for another five years. Mr. Naik, the learned Advocate for the Respondent, in his vehement arguments, submitted that when two complaints are pending for the same cause of action the settled position in law is that the civil case should be stayed waiting the decision in criminal case and there is nothing wrong if the criminal case is decided earlier. In the instant case, on account of the writ petition moved by the present Respondents themselves, the submissions made by Shri Naik are an elusion. Going by the constitution Bench decision in Sheriff's case (supra), the question of the respondents being put to embarrassment because of the pendency of the criminal case, does not arise and, therefore, the law laid down by this Court in the case of Ramanand Ladda (supra) is not applicable to the facts of this case. The learned 2nd Joint Civil Judge, Junior Division fell in gross error, may be perhaps he was not aware regarding the pendency of Criminal Writ Petition No. 175 of 2003 and/ or the order passed by this Court therein. Hence, this petition deserves to be allowed.

12. In the result, the petition is allowed and the order impugned is hereby quashed and set aside. The trial in Regular Civil Suit No. 996 of 2000 to go ahead but the defendant No. 2 shall be exempted from appearance in the said suit and the defendant No. 1, who is the power of attorney, may attend to the said case.

13. Rule is made absolute accordingly with no order as to costs.