RATILAL ALIAS SHANTILAL BHULABHAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The only question which is raised in these two revision applications is whether the order passed by the learned Magistrate staying criminal proceedings till the decision of the Civil Suit can be said to be an interlocutory order is. As the question is common in both these revision applications they are deposed of together by this common judgment.

(2.) Two criminal cases registered as Criminal Cases Nos. 3891 and 3892 of 1978 have been filed against the petitioners in the Court of the learned Judicial Magistrate First Class Valsad. Both these cases have been instituted upon charge-sheets filed by police. The allegations against the petitioners are that they have forged a will and the power of attorney purported to have been executed by one Kikabhai; and therefore they are liable to be punished under secs. 461 468 417 and 114 of the Indian Penal Code. During the pendency of those criminal cases a Civil Suit has been filed by the mother of the petitioners for recovery of the possession of the properties in occupation of the defendants claiming that she is the sole heir of the deceased Kikabhai and as such she is entitled to the possession thereof. The petitioners therefore gave identical applications in each of the said two cases for staying the proceedings of the criminal cases till the said Civil Suit is decided. The learned Magistrate by an identical order dated 20-6-1979 granted both the said applications. Against the said order the State had preferred Criminal Revision Applications before the learned Sessions Judge Bulsar at Navsari. Before the learned Sessions Judge it was contended on behalf of the present petitioners that the said revision applications were not maintainable inasmuch as they were filed against interlocutory orders. The said contention was negatived by the learned Sessions Judge; and he proceeded to decide the revision applications on merits and ultimately set aside the orders passed by the learned Magistrate. The petitioners have therefore filed these revision applications challenging the said judgment and order passed by the learned Sessions Judge in each of the two revision applications filed by the State before him.

(3.) Mr. S. N. Shelat the learned advocate appearing for the petitioners has submitted that the orders passed by the learned Magistrate staying proceedings of Criminal Cases Nos. 3891 and 3892 of 1978 are interlocutory orders because by the said orders the learned Magistrate has not decided any point involved in the case for has he determined the rights or liabilities of the parties. The further proceedings in the criminal cases are not stayed for the time being; and therefore the order passed by the learned Magistrate are purely interlocutory. He therefore submitted that in view of the bar contained in sec. 397 (2) of the Code of Criminal Procedure 1973 (hereafter referred to as the Code) the revision applications filed in the Court of the learned Sessions Judge Bulsar at Navsari against those orders were not maintainable; and the learned Judge therefore ought to have rejected the said revision applications on that ground alone. In my opinion the contention raised by Mr. Shelat is well founded. the learned Magistrate by passing the orders dated 20-6-1979 has merely stayed the proceedings of the criminal cases without deciding any point involved in the case or without in any manner giving a finding affecting the rights or liabilities of the parties. The learned Public Prosecutor appearing for the State was unable to point out any right of the State which came to be affected as a result of the orders passed by the learned Magistrate. It is not disputed that no pointmain or subsidiary has been decided by the learned Magistrate by those orders. In these circumstances it is difficult to uphold the finding of the learned Sessions Judge that the orders passed by the learned Magistrate were not interlocutory orders. As the said orders are held by me to be interlocutory orders the revision applications filed against those orders in the Court of the learned Sessions Judge Bulsar at Navsari were clearly not maintainable; and therefore the judgment and order passed by the learned Sessions Judge in each of the two revision applications will have to be set aside.