Madhya Pradesh High Court
Dalveer Singh Kanshana vs M/S Balaji Developer Through Partner ... on 15 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:8506
1 M.Cr.C.Nos. 8856/2025 & 9360/2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 15th OF APRIL, 2025
MISC. CRIMINAL CASE No. 8856 of 2025
DALVEER SINGH KANSHANA
Versus
M/S BALAJI DEVELOPER THROUGH PARTNER GAJENDRA
PANDEY AND OTHERS
Appearance:
Shri Trishant Mishra - Advocate for applicant.
Shri Abhishek Singh Bhadauria- Advocate for respondent No.1.
Shri Mohit Shivhare - Public Prosecutor for respondent/State.
____________________________________________________________
&
MISC. CRIMINAL CASE No. 9360 of 2025
MUKESH KUMAR AGRAWAL AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri V.D.Sharma - Advocate for applicants.
Shri Mohit Shivhare - Public Prosecutor for respondent No.1/State.
Shri Abhishek Singh Bhadauria- Advocate for respondent No.2.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 21-04-2025
06:35:29 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:8506
2 M.Cr.C.Nos. 8856/2025 & 9360/2025
ORDER
By this common order both the applications (M.Cr.C. No.8856/2025
and M.Cr.C. No.9360/2025) are being decided.
2. M.Cr.C. No.9360/2025 has been filed by Mukesh Kumar Agrawal
and Girraj Kumar Agrawal whereas M.Cr.C. No.8856/2025 has been filed
by Dalveer Singh Kansana.
3. Both these applications have been filed under Section 528 of BNSS,
2023, for quashment of order dated 19.02.2025 passed by VI Additional
Sessions Judge, Gwalior in Criminal Revision No.473/2024 by which
direction has been issued to register FIR against applicants.
4. Facts necessary for disposal of present applications in short are that
M/S. Balaji Developers through its partner Gajendra Pandey had filed a
criminal complaint for offences punishable under Sections 314, 316, 318,
320, 323, 335, 336, 340 read with Sections 45 and 61 of the BNS, 2023.
The application under Section 175(3) of BNSS, 2023 was also filed for
direction to Police to register FIR. The JMFC, Gwalior by order dated
16.12.2024 rejected the application filed under Section 175(3) of BNSS,
2023 and fixed the case for recording of statement of complainant.
5. Being aggrieved by the said order, respondent No.2 filed a Criminal
Revision which was registered as Criminal Revision No.473/2024 and by
the impugned order the same has been allowed and the SHO Police Station
University, District Gwalior was directed to register FIR against Mukesh
Agrawal, Girraj Agrawal and Dalveer Singh Kansana.
6. It is submitted by counsel for applicants that Mukesh Agrawal
executed a power of attorney in favour of Dalveer Singh Kansana on
24.02.2012 in respect of Survey No.191. It is alleged that Dalveer Singh
Kansana after interpolating the Power of Attorney also included Survey
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No.142/1 whereas power of attorney was never issued in favour of Dalveer
Singh Kansana in respect of Survey No.142/1. On the strength of aforesaid
Power of Attorney, Dalveer Singh Kansana executed a sale deed dated
22.03.2012 in favour of Shruti Developers and Constructions through its
partners Smt. Vijay Anand and Shri Sudheer Singh Chauhan. Accordingly,
Shruti Infrastructure Private Limited through its Director Mukesh Agrawal
filed a suit for declaration of title and permanent injunction for declaration
of sale deed dated 22.03.2012 executed by Dalveer Singh Kansana on the
strength of power of attorney as null and void. By judgment and decree
dated 16.12.2022 passed by VIII District Judge, Gwalior in RCSA
No.700001/2016, the suit filed by Shruti Infrastructure Pvt. Ltd. through its
Director Mukesh Agrawal has been dismissed, against which FA.
No.180/2023 is pending before the High Court wherein this Court on
16.05.2024 has passed an interim order thereby directing that no third party
rights shall be created in respect of the disputed property. It is further
submitted that on the strength of sale deed dated 22.03.2012, name of Shruti
Developers and Infrastructure was mutated in the revenue records and
ultimately by order dated 27.08.2015 passed by the Board of Revenue in
Revision No.4362-PBR/13 the order of mutation was set aside. The order of
Board of Revenue was executed and the name of Shruti Infrastructure Pvt.
Ltd. through its Director Mukesh Agrawal was mutated in the revenue
records. The order of Board of Revenue was challenged by Dalveer Singh
Kansana by filing W.P. No.6095/2015 and by interim order dated
29.09.2015, it was directed by this Court that nature of revenue entries
which were existing on the said date in the revenue records shall not be
changed. Ultimately, on 07.10.2015, Dalveer Singh Kansana and Another
withdrew WP. No.6095/2015 on the ground that suit has been filed by
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Shruti Infrastructure Pvt. Ltd. through its Director Mukesh Agrawal seeking
relief of declaration and permanent injunction and therefore, at the request
of Dalveer Singh Kansana and another, Writ Petition was dismissed as
withdrawn with a direction that both the parties shall maintain status quo as
regards revenue entries in relation to the suit property as it existed on
07.10.2015. It is submitted that a complaint was filed by M/s. Balaji
Developers through its Partner Gajendra Pandey on the allegation that by
registered sale deed dated 22.10.2021 the aforesaid land was sold to
complainant i.e. M/s Balaji Developers through its partner Gajendra
Pandey. It was alleged that the aforesaid sale deed was executed in a
fraudulent manner and with a view to misappropriate the amount of Rs.40
lacs which was received from the complainant and a forged sale deed dated
24.08.2018 was prepared on the basis of which the property was alienated
to complainant. It was further alleged that in fact the sale deed dated
22.03.2012 was already executed in favour of Shruti Developers and
Constructions and therefore it is clear that Mukesh Agrawal had no right or
title to alienate the property to complainant after accepting an amount of
Rs.40 lacs as the property was already alienated by them in favour of Smt.
Vijay Anand and Shri Sudheer Singh Chouhan by registered sale deed dated
22.03.2012.
7. As already pointed out, application filed by complainant/respondent
No.2 under Section 175(3) of BNSS, 2023 was rejected by the Trial
Magistrate and by the impugned order the revision has been allowed and
Police was directed to register FIR against Mukesh Agrawal, Girraj Kumar
Agrawal and Dalveer Singh Kansana and accordingly, the Police has
registered Crime No.53/2025 at Police Station University, District Gwalior
for offences under Sections 420 and 120B of IPC.
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8. Challenging the impugned order passed by the Revisional Court as
well as the FIR, it is submitted by counsel for applicants that since First
Appeal No.180/2023 is pending therefore criminal proceeding should not
proceed and further submitted that Shruti Infrastructure Pvt. Ltd. through its
Director Mukesh Agrawal had sold the property to Smt. Rakhi Upadhyaya
and Shri Ganesh Sharma by registered sale deed dated 24.08.2018.
Thereafter, the said land was sold by Smt. Rakhi Upadhyaya and Shri
Ganesh Sharma to M/s Balaji Developers.
9. Per contra, applications are vehemently opposed by counsel for the
respondents. It is submitted that although FA. No.180/2023 is pending but
after Khasra No. 142/1 and 191 were sold by Dalveer Singh Kansana on the
strength of power of attorney issued by Mukesh Agrawal in the capacity of
Director of Shruti Infrastructure Pvt. Ltd.. Thereafter, Mukesh Agrawal as
well as Dalveer Singh Kansana had no authority to alienate the property in
favour of Smt. Rakhi Upadhyaya and Shri Ganesh Sharma and thus it is
submitted that the Revisional Court did not commit any mistake by
directing the Police to register FIR.
Heard, learned counsel for the parties.
10. In order to understand the controversy in an easy manner the
following dates are important:
(i) 24.02.2012- Power of Attorney was executed by Shruti Infrastructure
Pvt. Ltd. through its Director Mukesh Agrawal in favour of Dalveer Singh
Kansana in respect of Khasra Nos. 191 and 142/1 (although Mukesh
Agrawal has disputed that Power of Attorney was never given in respect of
Khasra No.142/1).
(ii) On 22.03.2012, sale-deed was executed by power of attorney holder
on behalf of Shruti Infrastructure Pvt. Ltd. through its Director Mukesh
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Agrawal in favour of Shruti Developers and Constructions through its
partners Smt. Vijay Anand and Shri Sudheer Singh Chouhan.
(iii) On 27.08.2015, Board of Revenue set aside the mutation in the name
of Shruti Developers and Constructions.
Dalveer Singh Kansana and another filed a WP. No.6095/2015 and
by order dated 29.09.2015 interim order was passed and it was directed that
nature of revenue entries as it existed on the said date shall not be changed.
(iv) On 07.10.2015, the Writ Petition was withdrawn in the light of
pendency of civil suit. However, this Court directed the parties to maintain
status quo as regards revenue entries in relation to the suit property as it
existed on the said date.
(v) On 24.08.2018 Shruti Infrastructure Pvt. Ltd. through its Director
Mukesh Agrawal executed a sale deed in respect of the land in dispute in
favour of Smt. Rakhi Upadhyaya and Shri Ganesh Sharma which was also
signed by Girraj Kumar Agrawal and Dalveer Singh Kansana as attesting
witnesses.
(vi) On 25.10.2021, Shri Ganesh Sharma and Smt. Rakhi Upahdyaya
sold the property to M/s Balaji Developers (complainant).
(vii) On 16.12.2022, suit filed by Shruti Infrastructure Pvt. Ltd. through
its Director Mukesh Agrawal for setting aside sale deed dated 22.03.2012 in
favour of Shruti Developers and Constructions through its partners Smt.
Vijay Anand and Shri Sudheer Singh Chouhan was dismissed.
(viii) On 16.05.2024, an interim order was passed by this Court in FA.
No.180/2023 thereby directing the parties not to create any third party
rights, in respect of disputed property.
11. Thus, it is clear that the sale deed executed by Dalveer Singh
Kansana in the capacity of Power of Attorney Holder in favour of Shruti
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Developers and Constructions through its partner Smt. Vijay Anand and
Shri Sudheer Singh Chouhan was upheld by the Trial Court by judgment
and decree dated 16.12.2022 and there is no interim order on the effect and
operation of the said judgment and decree. It is true that First Appeal is
continuation of suit, but until and unless the judgment and decree is set
aside, it cannot be said that mere filing of appeal would temporarily
suspend the operation of judgment and decree. Therefore, it is clear that
Mukesh Agrawal lost his title over the property in dispute when his power
of attorney, Dalveer Singh Kansana had executed the sale deed in favour of
Shruti Developers and Constructions on 22.03.2012. Furthermore, a civil
suit filed by Shruti Infrastructure Pvt. Ltd. through its Director Mukesh
Agrawal itself was pending. In spite of that Shruti Infrastructure Pvt. Ltd.
through its Director Mukesh Agrawal executed a sale deed in favour of
Smt. Rakhi Upadhyaya and Shri Ganesh Sharma without disclosing the fact
of pendency of suit. On the contrary, it was mentioned in the sale deed that
no civil suit is pending and no interim order has been passed whereas this
Court by order dated 07.10.2015 passed in WP. No.6095/2015 had
specifically held that status quo as it existed on the said date in relation to
revenue entries shall be maintained till final disposal of the suit. The suit
was filed sometimes in the month of January, 2014. The suit was filed by
Mukesh Agrawal in the capacity of Director of Shruti Infrastructure Pvt.
Ltd. Mukesh Agrawal was also a party in WP. No.6095/2015. Therefore, it
is clear that he was aware of each and every fact, still he fraudulently sold
the land in dispute to Smt. Rakhi Upadhyaya and Shri Ganesh Sharma by
executing sale deed dated 24.08.2018. As Shri Mukesh Agrawal had lost his
title in the property on 22.03.2012 when Dalveer Singh Kansana executed
the sale deed in favour of Shruti Developers and Constructions through
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their partners Smt. Vijay Anand and Shri Sudheer Singh Chouhan,
therefore, it is clear that Mukesh Agrawal had fraudulently executed the
sale deed dated 24.08.2018 which was without any authority of law.
12. So far as Dalveer Singh Kansana and Girraj Kumar Agrawal are
concerned, they have stood as attesting witnesses in the sale deed dated
24.08.2018. These persons were also aware of previous transactions as well
as pendency of civil suit and the order of injunction passed by this Court in
WP. No.6095/2015. Dalveer Singh Kansana himself had executed the sale
deed on 22.03.2012 in the capacity of Power of Attorney Holder. In spite of
that he stood as an attesting witness in the sale deed dated 24.08.2018
executed in favour of Smt. Rakhi Upadhyaya and Shri Ganesh Sharma.
13. Now, the only question for consideration is as to whether the criminal
proceedings can go on simultaneously with civil proceedings or not?
14. The Supreme Court in Jagmohan Singh v. Vimlesh Kumar and
Others, decided on 05.05.2022 in SLP (Criminal) No. 9339 of 2021, has
held as under:
"There can be no doubt that in the civil suit, the burden would
be on the plaintiff relying on a will to establish the genuineness
of the will on the basis of which relief/permanent injunction is
claimed. However, that does not prevent the complainant, who
can be defendants in such a civil suit from initiating criminal
proceedings on the contention that the will is forged/fabricated."
15. The Supreme Court in P. Swaroopa Rani vs. M. Hari Narayana
Alias Hari Babu reported in (2008) 5 SCC 765 has held as under:-
"11. It is, however, well settled that in a given case, civil
proceedings and criminal proceedings can proceed
simultaneously. Whether civil proceedings or criminal
proceedings shall be stayed depends upon the fact and
circumstances of each case. (See M.S. Sheriff v. State of Madras
NEUTRAL CITATION NO. 2025:MPHC-GWL:8506
[AIR 1954 SC 397] , Iqbal Singh Marwah v. Meenakshi
Marwah [(2005) 4 SCC 370 : 2005 SCC (Cri) 1101] and
Institute of Chartered Accountants of India v. Assn. of Chartered
Certified Accountants [(2005) 12 SCC 226 : (2006) 1 SCC (Cri)
544] ."
16. Furthermore, it is a well-established principle of law that findings
recorded by the civil court are not binding on the criminal court. The
Supreme Court in the case of Kishan Singh (Dead) Through LRs. v.
Gurpal Singh and Others, reported in (2010) 8 SCC 775 has held as
under :
"16. In Iqbal Singh Marwah v. Meenakshi Marwah this
Court held as under : (SCC pp. 389-90, para 32)
"32. Coming to the last contention that an effort
should be made to avoid conflict of findings
between the civil and criminal courts, it is
necessary to point out that the standard of proof
required in the two proceedings is entirely different.
Civil cases are decided on the basis of
preponderance of evidence while in a criminal case
the entire burden lies on the prosecution and proof
beyond reasonable doubt has to be given. There is
neither any statutory provision nor any legal
principle that the findings recorded in one
proceeding may be treated as final or binding in the
other, as both the cases have to be decided on the
basis of the evidence adduced therein."
17. In Syed Askari Hadi Ali Augustine Imam v. State (Delhi
Admn.) this Court considered all the earlier judgments on
the issue and held that while deciding the case in Karam
Chand, this Court failed to take note of the Constitution
Bench judgment in M.S. Sheriff and, therefore, it remains
per incuriam and does not lay down the correct law. A
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similar view has been reiterated by this Court in Vishnu
Dutt Sharma v. Daya Sapra, wherein it has been held by
this Court that the decision in Karam Chand stood
overruled in K.G. Premshanker.
18. Thus, in view of the above, the law on the issue stands
crystallised to the effect that the findings of fact recorded
by the civil court do not have any bearing so far as the
criminal case is concerned and vice versa. Standard of proof
is different in civil and criminal cases. In civil cases it is
preponderance of probabilities while in criminal cases it is
proof beyond reasonable doubt. There is neither any
statutory nor any legal principle that findings recorded by
the court either in civil or criminal proceedings shall be
binding between the same parties while dealing with the
same subject-matter and both the cases have to be decided
on the basis of the evidence adduced therein. However,
there may be cases where the provisions of Sections 41 to
43 of the Evidence Act, 1872, dealing with the relevance of
previous judgments in subsequent cases may be taken into
consideration."
17. The Supreme Court in the case of Syed Askari Hadi Ali Augustine
Imam And Another Vs. State (Delhi Administration) and Another
reported in (2009) 5 SCC 528 has held as under :
"24. If primacy is to be given to a criminal proceeding,
indisputably, the civil suit must be determined on its own
merit, keeping in view the evidence brought before it and
not in terms of the evidence brought in the criminal
proceeding. The question came up for consideration in K.G.
Premshanker v. Inspector of Police wherein this Court inter
alia held: (SCC p. 97, paras 30-31)
"30. What emerges from the aforesaid discussion is
--(1) the previous judgment which is final can be
relied upon as provided under Sections 40 to 43 of
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the Evidence Act; (2) in civil suits between the
same parties, principle of res judicata may apply;
(3) in a criminal case, Section 300 CrPC makes
provision that once a person is convicted or
acquitted, he may not be tried again for the same
offence if the conditions mentioned therein are
satisfied; (4) if the criminal case and the civil
proceedings are for the same cause, judgment of the
civil court would be relevant if conditions of any of
Sections 40 to 43 are satisfied, but it cannot be said
that the same would be conclusive except as
provided in Section 41. Section 41 provides which
judgment would be conclusive proof of what is
stated therein.
31. Further, the judgment, order or decree passed in
a previous civil proceeding, if relevant, as provided
under Sections 40 and 42 or other provisions of the
Evidence Act then in each case, the court has to
decide to what extent it is binding or conclusive
with regard to the matter(s) decided therein. Take
for illustration, in a case of alleged trespass by A on
B's property, B filed a suit for declaration of its title
and to recover possession from A and suit is
decreed. Thereafter, in a criminal prosecution by B
against A for trespass, judgment passed between the
parties in civil proceedings would be relevant and
the court may hold that it conclusively establishes
the title as well as possession of B over the
property. In such case, A may be convicted for
trespass. The illustration to Section 42 which is
quoted above makes the position clear. Hence, in
each and every case, the first question which would
require consideration is--whether judgment, order
or decree is relevant, if relevant--its effect. It may
be relevant for a limited purpose, such as, motive or
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as a fact in issue. This would depend upon the facts
of each case."
25. It is, however, significant to notice that the decision of
this Court in Karam Chand Ganga Prasad v. Union of
India, wherein it was categorically held that the decisions
of the civil courts will be binding on the criminal courts but
the converse is not true, was overruled, stating: (K.G.
Premshanker case, SCC p. 98, para 33)
"33. Hence, the observation made by this Court in
V.M. Shah case that the finding recorded by the
criminal court stands superseded by the finding
recorded by the civil court is not correct
enunciation of law. Further, the general
observations made in Karam Chand case are in
context of the facts of the case stated above. The
Court was not required to consider the earlier
decision of the Constitution Bench in M.S. Sheriff
case as well as Sections 40 to 43 of the Evidence
Act."
Axiomatically, if judgment of a civil court is not binding on
a criminal court, a judgment of a criminal court will
certainly not be binding on a civil court.
26. We have noticed hereinbefore that Section 43 of the
Evidence Act categorically states that judgments, orders or
decrees, other than those mentioned in Sections 40, 41 and
42 are irrelevant, unless the existence of such judgment,
order or decree, is a fact in issue, or is relevant under some
other provisions of the Act. No other provision of the
Evidence Act or for that matter any other statute has been
brought to our notice.
27. Another Constitution Bench of this Court had the
occasion to consider a similar question in Iqbal Singh
Marwah v. Meenakshi Marwah wherein it was held: (SCC
p. 387, para 24)
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"24. There is another consideration which has to be
kept in mind. Sub-section (1) of Section 340 CrPC
contemplates holding of a preliminary enquiry.
Normally, a direction for filing of a complaint is
not made during the pendency of the proceeding
before the court and this is done at the stage when
the proceeding is concluded and the final judgment
is rendered. Section 341 provides for an appeal
against an order directing filing of the complaint.
The hearing and ultimate decision of the appeal is
bound to take time. Section 343(2) confers a
discretion upon a court trying the complaint to
adjourn the hearing of the case if it is brought to its
notice that an appeal is pending against the decision
arrived at in the judicial proceeding out of which
the matter has arisen. In view of these provisions,
the complaint case may not proceed at all for
decades specially in matters arising out of civil
suits where decisions are challenged in successive
appellate fora which are time-consuming. It is also
to be noticed that there is no provision of appeal
against an order passed under Section 343(2),
whereby hearing of the case is adjourned until the
decision of the appeal. These provisions show that,
in reality, the procedure prescribed for filing a
complaint by the court is such that it may not
fructify in the actual trial of the offender for an
unusually long period. Delay in prosecution of a
guilty person comes to his advantage as witnesses
become reluctant to give evidence and the evidence
gets lost. This important consideration dissuades us
from accepting the broad interpretation sought to be
placed upon clause (b)(ii)."
28. Relying inter alia on M.S. Sheriff, it was furthermore
held: (Iqbal Singh Marwah case, SCC pp. 389-90, para 32)
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"32. Coming to the last contention that an effort
should be made to avoid conflict of findings
between the civil and criminal courts, it is
necessary to point out that the standard of proof
required in the two proceedings are entirely
different. Civil cases are decided on the basis of
preponderance of evidence while in a criminal case
the entire burden lies on the prosecution and proof
beyond reasonable doubt has to be given. There is
neither any statutory provision nor any legal
principle that the findings recorded in one
proceeding may be treated as final or binding in the
other, as both the cases have to be decided on the
basis of the evidence adduced therein."
29. The question yet again came up for consideration in P.
Swaroopa Rani v. M. Hari Narayana, wherein it was
categorically held: (SCC p. 769, para 11)
"11. It is, however, well settled that in a given case,
civil proceedings and criminal proceedings can
proceed simultaneously. Whether civil proceedings
or criminal proceedings shall be stayed depends
upon the fact and circumstances of each case."
18. The Supreme Court in the case of Prem Raj Vs. Poonamma Menon
and Another decided on 02.04.2024 in S.L.P.(Cr.) No.9778/2018 has held
as under:
"9. In advancing his submissions, Mr. K.
Parameshwar, learned counsel appearing for the appellant,
placed reliance on certain authorities of this Court. In M/s.
Karam Chand Ganga Prasad and Anr. vs. Union of India
and Ors.(1970)3 SCC 694, this Court observed that:
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".......It is a well-established principle of law that
the decisions of the civil courts are binding on the
criminal courts. The converse is not true."
In K.G. Premshanker vs. Inspector of Police and Anr,
(2002)8 SCC 87, a Bench of three learned Judges observed
that, following the M.S. Sheriff vs. State of Madras, AIR
1954 SC 397, no straight-jacket formula could be laid down
and conflicting decisions of civil and criminal Courts would
not be a relevant consideration except for the limited
purpose of sentence or damages.
10. We notice that this Court in Vishnu Dutt Sharma
vs. Daya Sapra (Smt.) (2009)13 SCC 729, had observed as
under:
"26. It is, however, significant to notice a
decision of this Court in Karam Chand
Ganga Prasad v. Union of India (1970) 3
SCC 694, wherein it was categorically held
that the decisions of the civil court will be
binding on the criminal courts but the
converse is not true, was overruled
therein..."
This Court in Satish Chander Ahuja vs. Sneha Ahuja
(2021)1 SCC 414, considered a numerous precedents,
including Premshanker (supra) and Vishnu Dutt Sharma
(supra), to opine that there is no embargo for a civil court to
consider the evidence led in the criminal proceedings.
The issue has been laid to rest by a Constitution
Bench of this Court in Iqbal Singh Marwah vs.
Meenakshi Marwah, (2005)4 SCC 370 :
"32. Coming to the last contention that an
effort should be made to avoid conflict of
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findings between the civil and criminal
courts, it is necessary to point out that the
standard of proof required in the two
proceedings are entirely different. Civil
cases are decided on the basis of
preponderance of evidence, while in a
criminal case, the entire burden lies on the
prosecution, and proof beyond reasonable
doubt has to be given. There is neither any
statutory provision nor any legal principle
that the findings recorded in one proceeding
may be treated as final or binding in the
other, as both the cases have to be decided
on the basis of the evidence adduced
therein. While examining a similar
contention in an appeal against an order
directing filing of a complaint under Section
476 of the old Code, the following
observations made by a Constitution Bench
in M.S. Sheriff v. State of Madras [1954
SCR 1144: AIR 1954 SC 397: 1954 Cri LJ
1019] give a complete answer to the
problem posed: (AIR p. 399, paras 15-16)
"15. 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
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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.
16. 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.
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. But in this case we are of the view that the
civil suits should be stayed till the criminal
proceedings have finished."
(Emphasis Supplied)"
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19. Furthermore, the Supreme Court in the case of Pratibha Vs.
Rameshwari Devi and Others reported in (2007) 12 SCC 369, in which it
has been held as under:
"14. From a plain reading of the findings arrived
at by the High Court while quashing the FIR, it is
apparent that the High Court had relied on
extraneous considerations and acted beyond the
allegations made in the FIR for quashing the same
in exercise of its inherent powers under Section
482 of the Code. We have already noted the
illustrations enumerated in Bhajan Lal case [1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] and from
a careful reading of these illustrations, we are of
the view that the allegations emerging from the
FIR are not covered by any of the illustrations as
noted hereinabove. For example, we may take up
one of the findings of the High Court as noted
hereinabove. The High Court has drawn an adverse
inference on account of the FIR being lodged on
31-12-2001 while the appellant was forced out of
the matrimonial home on 25-5-2001.
15. In our view, in the facts and circumstances of
the case, the High Court was not justified in
drawing an adverse inference against the appellant
wife for lodging the FIR on 31-12-2001 on the
ground that she had left the matrimonial home at
least six months before that. This is because, in our
view, the High Court had failed to appreciate that
the appellant and her family members were, during
this period, making all possible efforts to enter into
a settlement so that Respondent 2 husband would
take her back to the matrimonial home. If any
complaint was made during this period, there was
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every possibility of not entering into any
settlement with Respondent 2 husband.
16. It is pertinent to note that the complaint was
filed only when all efforts to return to the
matrimonial home had failed and Respondent 2
husband had filed a divorce petition under Section
13 of the Hindu Marriage Act, 1955. That apart, in
our view, filing of a divorce petition in a civil court
cannot be a ground to quash criminal proceedings
under Section 482 of the Code as it is well settled
that criminal and civil proceedings are separate and
independent and the pendency of a civil
proceeding cannot bring to an end a criminal
proceeding even if they arise out of the same set of
facts. Such being the position, we are, therefore, of
the view that the High Court while exercising its
powers under Section 482 of the Code has gone
beyond the allegations made in the FIR and has
acted in excess of its jurisdiction and, therefore, the
High Court was not justified in quashing the FIR
by going beyond the allegations made in the FIR or
by relying on extraneous considerations.
*****
22. For the reasons aforesaid, we are inclined to
interfere with the order of the High Court and hold
that the High Court in quashing the FIR in the
exercise of its inherent powers under Section 482
of the Code by relying on the investigation report
and the findings made therein has acted beyond its
jurisdiction. For the purpose of finding out the
commission of a cognizable offence, the High
Court was only required to look into the allegations
made in the complaint or the FIR and to conclude
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whether a prima facie offence had been made out
by the complainant in the FIR or the complaint or
not."
(Underline supplied)
20. The Supreme Court, in the case of Sh. Vishnu Dutt Sharma vs.
Smt. Daya Sapra, decided on 05-05-2009 in Civil Appeal Number 3238
of 2009, has held as under :
"30. Another Constitution Bench of this Court had the occasion
to consider the question in Iqbal Singh Marwah & Anr. vs.
Meenakshi Marwah & Anr. [(2005) 4 SCC 370]. Relying on
M.S. Sheriff (supra) as also various other decisions, it was
categorically held:
"32. Coming to the last contention that an effort
should be made to avoid conflict of findings
between the civil and criminal courts, it is necessary
to point out that the standard of proof required in the
two proceedings are entirely different. Civil cases
are decided on the basis of preponderance of
evidence while in a criminal case the entire burden
lies on the prosecution and proof beyond reasonable
doubt has to be given."
31. The question yet again came up for consideration in P.
Swaroopa Rani vs. M. Hari Narayana @ Hari Babu [AIR 2008
SC 1884], wherein it was categorically held:
"13. It is, however, well-settled that in a given case,
civil proceedings and criminal proceedings can
proceed simultaneously. Whether civil proceedings
or criminal proceedings shall be stayed depends
upon the fact and circumstances of each case."
21. The Supreme Court in Kamaladevi Agarwal v. State of W.B. &
Others, reported in (2002) 1 SCC 555 has held as under:
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"9. Criminal prosecution cannot be thwarted at the initial
stage merely because civil proceedings are also pending. After
referring to judgments in State of Haryana v. Bhajan Lal [1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604]
and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 :
1999 SCC (Cri) 401] this Court in Trisuns Chemical
Industry v. Rajesh Agarwal [(1999) 8 SCC 686 : 2000 SCC
(Cri) 47] held: (SCC p. 690, paras 7-8)
"7. Time and again this Court has been pointing out
that quashing of FIR or a complaint in exercise of the
inherent powers of the High Court should be limited to
very extreme exceptions (vide State of
Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426 : AIR 1992 SC 604] and Rajesh
Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999
SCC (Cri) 401] ).
8. In the last referred case this Court also pointed out
that merely because an act has a civil profile is not
sufficient to denude it of its criminal outfit. We quote
the following observations: (SCC p. 263, para 10)
'10. It may be that the facts narrated in the
present complaint would as well reveal a
commercial transaction or money transaction. But
that is hardly a reason for holding that the offence
of cheating would elude from such a transaction.
In fact, many a cheatings were committed in the
course of commercial and also money
transactions.' "
15. We have already noticed that the nature and scope of civil
and criminal proceedings and the standard of proof required in
both matters is different and distinct. Whereas in civil
proceedings the matter can be decided on the basis of
probabilities, the criminal case has to be decided by adopting
the standard of proof of "beyond reasonable doubt". A
Constitution Bench of this Court, dealing with similar
circumstances, in M.S. Sheriff v. State of Madras [AIR 1954
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SC 397 : 1954 Cri LJ 1019] held that where civil and criminal
cases are pending, precedence shall be given to criminal
proceedings. Detailing the reasons for the conclusions, the
Court held: (AIR p. 399, paras 15-16)
"15. 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.
16. 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.
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. But in this case we are of the view
that the civil suits should be stayed till the criminal
proceedings have finished."
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17. In view of the preponderance of authorities to the
contrary, we are satisfied that the High Court was not justified
in quashing the proceedings initiated by the appellant against
the respondents. We are also not impressed by the argument
that as the civil suit was pending in the High Court, the
Magistrate was not justified to proceed with the criminal case
either in law or on the basis of propriety. Criminal cases have to
be proceeded with in accordance with the procedure as
prescribed under the Code of Criminal Procedure and the
pendency of a civil action in a different court even though
higher in status and authority, cannot be made a basis for
quashing of the proceedings."
22. Therefore, it is clear that merely because FA. No.180/2023 is
pending, it cannot be said to be a good ground to quash the criminal
proceedings.
23. Accordingly, this Court is of considered opinion that the Revisional
Court did not commit any mistake by directing the Police to register the
FIR.
24. Ex. consequenti, the order dated 19.02.2025 passed by VI Additional
Sessions Judge, Gwalior in Criminal Revision No.473/2024 is hereby
affirmed.
25. Applications fail and are, hereby, dismissed.
(G. S. AHLUWALIA)
JUDGE
(and)
