Madhya Pradesh High Court
Mahesh Kaurav vs The State Of Madhya Pradesh on 7 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 M.Cr.C. No.5828 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7th OF FEBRUARY, 2025
MISC. CRIMINAL CASE No. 5828 of 2025
MAHESH KAURAV AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri R.P.S. Kaurav - Advocate for applicants.
Shri Naval Kishor Gupta - Public Prosecutor for respondent No.1/State.
ORDER
This application, under Section 482 of Cr.P.C./528 of B.N.S.S., 2023,
has been filed for quashing of FIR in Crime No.05/2025 registered at Police
Station Alampur, District Bhind (M.P.) for the offences under Sections 318,
335, 336, 338 and 340 of B.N.S., 2023 as well as order dated 24.12.2024
passed by J.M.F.C. Lahar, District Bhind (M.P.), by which an order under
Section 175 of B.N.S.S., 2023, was passed.
2. Challenging the order passed by J.M.F.C. Lahar, District Bhind and
registration of FIR in Crime No.05/2025, it is submitted by counsel for
applicants that respondent No. 2 filed complaint on the ground that her father,
Brij Bihari Kaurav had two daughters, namely respondent No. 2 and her elder
sister Mahadevi. Mother of respondent No. 2 had expired about 28 to 29 years
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back. After her mother's death, respondent No. 2 and her elder sister were
brought up and looked after by their grandparents, Draupati and Hardayal as
well as their father, Brij Bihari Kaurav. Marriage of respondent No. 2 and her
elder sister was performed by their father. After their marriage, respondent
No. 2 and her elder sister frequently visited their father's house to look after
him. Their father, Brij Bihari Kaurav expired on 02.06.2023, and after his
death, the names of respondent No. 2 and her elder sister were recorded in the
revenue records, and both are in joint possession of the property. Thereafter,
Aniruddh Pratap Singh and Shaurya Pratap Singh filed Civil Suit
No.288/2023 on the basis of a forged Will purportedly executed by Brij Bihari
Kaurav. Respondent No.2 and her sister appeared in the civil suit and obtained
copies of the plaint along with a copy of the forged Will allegedly executed by
their father. It was alleged that the photograph affixed on the forged Will and
the thumb impression on the same do not belong to their father. The forged
Will was prepared after the death of their father. Accordingly, a complaint
was filed that in order to deprive respondent No.2 and her elder sister from the
property as well as to grab it, a forged will has been prepared. On the said
complaint, JMFC Lahar, vide order dated 24.12.2024, passed an order under
Section 175 of B.N.S.S., 2023, thereby directing police to register an FIR, and
accordingly FIR in Crime No.05/2025 at Police Station Alampur, District
Bhind (M.P.) was registered.
3. Challenging the said FIR, it is submitted by counsel for applicants that
applicants No. 4 and 5 are minors, aged about 7 and 3 years, respectively, and
in light of Section 82 of IPC / 20 of B.N.S., 2023, no offence can be registered
against them. Furthermore, a Civil Suit is pending and the trial court, by order
dated 29.05.2024, passed in RCSA No.288/2023, has passed an order of
temporary injunction. Thus, it is clear that respondent No. 2 has tried to
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convert the civil dispute into a criminal case. It is further submitted that when
a civil suit is pending in which question of Will is involved, then the
registration of an FIR regarding the same Will is not warranted and is bad in
law.
4. Considered the submissions made by counsel for the applicant.
5. Section 82 of IPC / Section 20 of BNS, 2023 reads as under:
"20. Act of a child under seven years of age.--
Nothing is an offence which is done by a child under seven years
of age."
Thus, it is clear that a child below the age of 7 years cannot be tried for
any offence, as nothing will be an offence that is done by a child under 7 years
of age. According to applicants, applicant No. 5 is aged about 3 years, and
applicant No. 4 is aged about 7 years. Therefore, Investigating Officer is
directed to verify the age of applicants No. 4 and 5, and if it is found that
either both of them or any of them was below the age of 7 years at the time of
commission of offence, then their names shall be immediately deleted from
the FIR.
6. So far as the contention of applicants that since the will in question is
the subject matter of Civil Suit No.288/2023 and, therefore, the FIR should
not have been registered is concerned, the same is misconceived and is liable
to be rejected.
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
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initiating criminal proceedings on the contention that the will is
forged/fabricated."
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 [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] ."
Thus, it is clear that if the will is a forged document, then it would also
include criminal ingredients. Preparing a forged and false document is
necessarily a criminal offence. Merely because the allegations involve both
civil and criminal aspects would not mean that the criminal case cannot be
registered at all. If a forged document has been created, then the dispute
cannot be treated as predominantly civil in nature.
7. 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
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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
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."
8. 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 :
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"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
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
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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 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)
"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
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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."
9. 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:
".......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
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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
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
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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
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
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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)"
10. 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
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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
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
whether a prima facie offence had been made out
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by the complainant in the FIR or the complaint or
not."
(Underline supplied)
11. 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."
12. The Bombay High Court in the case of Nandkishor Laxminarayan
Mundhada & Ors. Versus Dwarkadas Murlidhar Mundhada & Anr.
reported in 2008 Cri LJ 990 has held that if a Will is said to be forged, it is
certainly an offence, and if allegations involve fabrication of a will, then the
case would not fall under any of the criteria as laid down by the Supreme
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Court in State of Haryana v. Bhajanlal reported in 1992 Supp (1) SCC 335.
13. The Supreme Court in Kamaladevi Agarwal v. State of W.B. &
Others, reported in (2002) 1 SCC 555 has held as under:
"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 SC 397 : 1954 Cri LJ 1019] held that where
civil and criminal cases are pending, precedence shall be given to
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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."
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
NEUTRAL CITATION NO. 2025:MPHC-GWL:3062
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."
Thus, it is clear that the mere pendency of a civil suit on the basis of a
will cannot be the sole criterion to quash criminal proceedings.
14. It is next contended by counsel for applicant that in view of Section 223
of B.N.S.S., 2023, the Magistrate should have given an opportunity of hearing
to the suspect before taking cognizance of offence, and therefore, order dated
24.12.2024 passed by JMFC Lahar, District Bhind (M.P.), is bad in law.
15. Considered the aforesaid submission made by counsel for applicants.
16. In the present case, the Magistrate has passed an order under Section
175 of BNSS and not under Section 223 of BNSS thereby taking cognizance
as provided under Section 227 of BNSS. Section 175 of BNSS does not speak
of granting any opportunity of hearing to suspect/accused. Furthermore, an
order under Section 175 of BNSS has to be passed before taking cognizance
although application of judicial mind to find out the necessity of order under
Section 175 of BNSS is warranted. Since order under Section 175 of BNSS is
passed before taking cognizance, therefore, provisions of Section 223(1) of
BNSS do not apply to the order passed under Section 175 of BNSS.
17. Accordingly, no case is made out warranting interference. The
application is finally disposed of with the observations made in previous
paragraphs with regard to applicability of Section 82 of IPC/ Section 20 of
BNS.
(G.S. Ahluwalia)
Judge
(and)
