- (1.) THIS is a reference by the learned Civil & Additional Sessions Judge, Merta, recommending that an order passed by the first Class Magistrate Nagaur directing the stay of a criminal case under sec. 379 of the Indian Penal Code instituted by the State against opposite parties Harsukh, Chaina and others on a report by the petitioner Kalu, pending the decision of a civil suit filed by Harsukh against Kalu, be set aside.
(2.) THE material fact which have led up to this reference may shortly be stated as follows: It appears that the opposite party Harsukh purchased bapi rights in respect of a certain field from one Bhika who was its bapi holder. It is admitted that Bhika had mortgaged the same field to Kalu and some others before the transfer in favour of Harsukh took place. Harsukh's contention was that he entered into possession of the field in question after Kalu and others had surrendered possession thereof although latter changed their minds subsequently and sought to disturb his possession. On 27th July, 1949 Harsukh therefore, filed a suit in the court of the Munsif, Nagaur, against the petitioner Kalu and others for the grant of perpetual injunction restraining them from preventing the former from cultivating the said field and interfering with his possession in respect of it. On 17th October, 1949 Kalu lodged a report at the police thana Bhawanda to the effect that Harsukh and others had stolen his ten cart loads of Chipta which were lying in the field in question. THE police investigated the case and challaned Harsukh and others in the court of the Sub-Divisional Magistrate, Nagaur for trial of an offence under sec. 379 of the Indian Penal Code. THE learned First Class Magistrate Nagaur, to whom the case had meanwhile been transferred, then proceeded to stay the criminal case and ordered that it be consigned to the records until the civil suit field by Harsukh against the petitioner Kalu and others was decided. THE petitioner went in revision from that order to the learned Civil and Additional Sessions Judge, Merta who has made the present reference. On a careful consideration of the facts and circumstances of this case I have arrived at the conclusion that the reference made by the learned Additional Sessions Judge is proper. In the first place, the order of the learned First Class Magistrate, Nagaur staying the criminal case sine die and consigning it to the records pending the decision of the civil suit instituted by Har Sukh against the petitioner Kalu was illegal. The Code of Criminal Procedure does not contemplate the postponement of a trial for indefinite length of time and provides for postponement or adjournment, thereof for fixed and definite periods only. See sec. 344 of the Code of Criminal Procedure. In the second place, the law is well established that there is no invariable rule that a criminal proceeding should be stayed pending the decision of a civil suit involving the same or allied subject-matter. That is a matter entirely one of discretion, to be exercised, having regard to the merits and circumstances of each particular case. Taking the facts of the present case into consideration it will be observed that the principal issue for decision in the criminal case filed by the petitioner Kalu is whether chipta in respect of which the theft is alleged to have been committed was removed out of his possession and without his consent, among certain other matters which, of course, have to be proved as being the essential ingredients of an offence under sec. 379 I. P. C. The question of the title or ownership of the field cannot really be relevant in criminal court although it is possible that it may incidentally be raised there. So far as the civil suit brought by Harsukh is concerned, the main point for decision would, however, appear to be as regards his title in respect of the field in dispute and any decision of the civil court in respect thereof would not necessarily affect the finding of the criminal court as regards the possession of the chipta alleged to have been stolen from the said field. I have no hesitation, therefore, in arriving at the conclusion that the matters in dispute in two cases are neither identical nor substantially the same and that it would be nothing but a sheer travesty of justice to stay the criminal case pending the decision of the civil suit. Besides, it is eminently desirable and that is indeed the policy of Legislature that a criminal proceeding should be decided as expeditiously as possible and it follows therefore that except for compelling reasons such a proceeding should not be allowed to hang on indefinitely until the decision of a civil suit which may take years to decide. In this connection I may refer to an authority of our own Court, Kesrimal vs. The State (1) (R. L. W. 1952 b 206), The same view was adopted in Yelchuri Ranganayakalu Chetty vs. K. Gopala Chetty (2) (A. I. R. 1953 Mad. 439.) and Emperor vs. Dinal Shah (3) (A. I. R. 1933 Sind, 358. ). I may also point out the mere fact that the civil suit was filed earlier than the criminal proceeding, which seems to have prevailed with the learned Magistrate, need not, in the circumstances of the present case, affect the conclusion at which I have arrived. The real test is whether any prejudice is likely to be occasioned to the accused if the criminal proceeding is not stayed pending the decision of the civil suit. No allegation has ever been made to that effect in the present case on behalf of the accused and I am not at all satisfied that any prejudice will really be caused to the accused if the criminal case is not stayed. In these circumstances I do not see that there are any grounds for staying the criminal case brought by Kalu against opposite parties Harsukh and others, and therefore, set aside the order of the learned First Class Magistrate Nagaur and hereby direct that the learned Magistrate will take up the case immediately and proceed to hear and determine it according to law. The reference is according accepted. . ;