JAMUNA BIN Vs. RAMANI MOHAN BARMAN,
HIGH COURT OF GAUHATI
Ramani Mohan Barman,
Click here to view full judgement.
K.V.RATHNAM, J. -
(1.) THIS criminal revision petition is directed against the order of the Addl. Sessions Judge, Tripura, D/ -10 -11 -70 confirming the order Dt. 25 -11 -68 passed by the Magistrate, 2nd class, Agartala refusing to stay the proceedings in Cr. Case No. 550 of 67, under Section 344 Criminal Procedure Code
(2.) ON a complaint filed on 19 -7 -67 by one Shri Ramani Mohan Barman, the respondent herein. Shri Jamuna Bin the revision petitioner and 5 others are prosecuted for offences under Sections 447 and 379 I.P.C. in that on 17 -7 -67 they have trespassed into the land in the possession of the respondent and committed theft of paddy crop. The said case was taken on file as CR. 550 of 67 for an offence under section 379 IPC. In respect of the very land from which the accused are alleged to have committed theft of paddy crop, there were proceedings under Section 145 Criminal Procedure Code (misc. case 35 of 65) between the respondent herein and Jamuna Bin the revision petitioner, and in those proceedings on 4 -11 -61 the learned Magistrate passed an order directing that the disputed land shall remain in possession of the respondent herein till evicted in due course of law. Aggrieved by the said order, Jamuna Bin the revision petitioner filed a suit T. Section 104 of 66 for declaration of his title to the land in question and for confirmation of his possession. While that suit was pending the respondent filed the private complaint referred to above. Jamuna Bin and the other accused filed a petition under Section 344 Criminal Procedure Code in C. Rule 550 of 67 before the 2nd Class Magistrate for stay of proceeding of the criminal case pending disposal of the Civil Suit on the ground that the question of title and possession of the land which are to be decided in the civil suit would practically decide the guilt or otherwise of the accused in the criminal case. On 5 -12 -67 the learned Magistrate dismissed that application and finding that a crime facie case is made out against the accused framed a charge against them under Section 379 IPC and posted the case for cross -examination of the prosecution witnesses. Against the order refusing to stay the Criminal proceedings, the accused preferred criminal revision petition 3 of 68 before the Sessions Court and obtained stay of the proceedings. But before the revision petition came up for final disposal T. Section 104 of 66 was reported to have been withdrawn with permission to bring a fresh suit with the result the stay was vacated and the revision petition was dismissed. Subsequently the revision petitioner filed a fresh suit T. Section 87 of 68 on the same cause of action, on which his earlier suit was filed and thereafter he again filed an application under Section 344 Criminal Procedure Code before the 2nd Class Magistrate for stay of the proceedings in the Criminal case and the learned Magistrate on 25 -11 -68 dismissed the same observing that there are no fresh grounds to stay the proceedings of the Criminal case. Thereafter the accused Shri Jamuna Bin moved the Sessions Court in Criminal Motion 243 of 68 to make a reference to this court under Sections 435 and 438 Criminal Procedure Code The Addl. Sessions Judge by his order Dt. 10th November, 1970 dismissed the same finding that no case is made out to stay the criminal proceedings.
(3.) IT is for consideration whether the facts of this case warrant the stay of proceedings in Cr. Case No. 550 of 66 on the file of the 2nd Class Magistrate, Sadar pending disposal of T. Section 87 of 68 on the file of the Munsiff, Sadar.
Section 344 Criminal Procedure Code provides that in every enquiry or trial the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day. Sub -Section (1)(A) thereof gives a discretion to the Court to postpone the commencement of or adjourn any enquiry or trial if it becomes necessary or desirable either due to the absence of a witness or any other reasonable cause. Sometimes a criminal case is requested to be stayed pending disposal of a civil case between the parties on the same subject matter. In such a case as to whether a criminal case has to be stayed or not is a matter entirely one of discretion to be exercised by the court having regard to the merits and all the circumstances of the case. One of the tests would be whether the accused is likely to be seriously prejudiced by the continuance of the criminal proceedings against him during the pendency of the civil proceedings. Public interests demand that criminal justice should be swift in that the guilty should be punished while the events are still fresh in the mind of the witnesses and the innocent should be absolved as early as is consistent with a fair and impartial trial. As between civil and criminal proceeding between the parties, ordinarily criminal matters should be given preference. A civil suit often drags on for several years and it is most undesirable that criminal prosecution should wait till everybody has forgotten all about the crime. However, if the finding of a civil court would dispose of the point which arises in a criminal case and if the accused is likely to be seriously prejudiced by the continuance of the criminal proceeding against him while the civil suit in respect of the same subject -matter is pending it can be regarded as a reasonable cause for the court to exercise discretion by adjourning the criminal proceedings. But in the instant case from the admitted facts it is not possible to hold that the findings that may be given in the civil suit would dispose of the points that arise in the criminal case. The case of the complainant is that he was in possession of the land in question and that he raised the paddy crop thereon and that on 17 -7 -67 the accused trespassed into the said land and committed theft of his paddy crop. The relief prayed for in the civil suit is for a declaration of the plaintiff's jute rights in the land in dispute and for confirmation of his possession. The alternate prayer is that in case the plaintiff is to get possession of the land in view of the orders passed in the proceedings under Section 145 Criminal Procedure Code a decree for possession may be given after evicting the defendant therefrom.
It may be further pointed out that in the plaint it is categorically alleged that in the proceedings under Section 145 Criminal Procedure Code in Misc. Case 35 of 65 the Sub -Divisional Magistrate has held that the respondent herein was in possession of the land in dispute and that he should continue in possession till he is evicted in due course of law. That order was passed on 4 -11 -66 and it is in view of that order the revision petitioner was obliged to file the suit for the reliefs referred to above. There is one other aspect which required to be stated. In the suit the plaintiff has prayed for an interim injunction restraining the defendant, respondent herein not to destroy or cut any earth from the suit land. It appears the defendant has filed an application for an injunction against the plaintiff. In regard to the injunctions sought for, on 29 -12 -66 the learned Munsiff passed an order restraining the plaintiff from entering into the suit land. So far as the defendant is concerned the direction is that he should not cut any fruit bearing trees or dig any earth from the suit land. In the said order it is also mentioned that the defendant is in possession of the land by virtue of an order passed by a criminal court obviously referring to the order Dt. 4 -11 -61 passed in Misc. Case No. 35 of 65.
As such, as on 17 -7 -67 the date on which the accused are alleged to have committed theft of the paddy crop it appears the revision petitioner herein was not in possession of the land in question. I have already referred to the alternate prayer made by the plaintiff in his suit seeking khas possession of the land after evicting the defendant therefrom. That being so, the question that arises for consideration in the criminal case is whether the accused have committed theft of the paddy crop belonging to the complainant. The question of title to the land does not really arise for consideration in the criminal case. As such any finding in the civil suit regarding title to the land in question does not dispose of the point that arises in the criminal case and the accused would not in any way be seriously prejudiced if the proceedings of the criminal case are not stayed pending disposal of the civil suit. For all these reasons stated above, I find that the learned Magistrate has rightly exercised the discretion in refusing to stay the proceedings in C. Rule 550 of 67 under Section 344 Criminal Procedure Code and the orders of the courts below do not call for any interference.;
Copyright © Regent Computronics Pvt.Ltd.