Daya Ram and others vs State of U.P. and another

Shri Kant Tripathi, J.—Heard learned Counsel for the revisionist and the learned A.G.A. for the respondents and perused the record.

This is a petition under Article 226 of the Constitution of India for quashing the order dated 26.7.2010 (annexure 2) passed by the learned Special Judge, Dacoity Affected Area, Jalaun, District Oral as well as the order dated 28.4.2010 (Annexure 1) passed by the learned Judicial Magistrate, Oral in regard to complaint case No. 176 of 2009, Bhagwati v. Ramdas and others pending in the court of Judicial Magistrate, Oral at Jalaun.

The main allegation in the complaint is that the husband of the respondent No. 2 was the owner of the certain agricultural lands. He died and consequently the respondent No. 2 inherited the property. It is alleged that the petitioners, in order to grab the property of the husband of the respondent No. 2 on a forged Will and got mutated their name in the revenue record. Therefore, in the complaint case, the Will has been alleged as a forged and fabricated document. The learned Magistrate after considering the entire materials on record found that a prima facie case for framing charges under sections 420, 465, 467, 468, 471, 504, 506, I.P.C. was made out against the petitioners. The revision preferred by the petitioner has also been dismissed by the learned Special Judge.

The learned Counsel for the petitioners submitted that a civil litigation is already going on between the respondent No. 2 and the petitioners in which genuineness of the Will is the subject matter. The learned Counsel for the petitioners further submitted that at present a second appeal has been filed in this Court which is pending. The petitioners have lost their case in the courts below.

It was also submitted that so long the civil case is pending, the criminal case cannot be filed.

It is well settled that a civil as well as criminal proceeding in regard to same act may be launched and continued simultaneously. If certain acts constitute an offence, the criminal proceeding can not be held up or kept in abeyance till the finalization of the civil proceeding.

In the case of Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), (2009) 5 SCC 528 the Apex Court has held that indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists

a prima facie case.................It is now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. If primacy is to be given to a criminal proceeding, the civil suit must be determined on its own merit, keeping in view the evidence brought on record therein and not in terms of the evidence brought in the criminal proceeding.

The aforesaid principles have been reiterated by the Apex Court in the case of Devendra and others v. State of U.P. and another, (2009) 7 SCC 495 = 2009 (67) ACC 886 (SC) (para 13).

In view of the aforesaid, the impugned orders cannot be said to be contrary to law, therefore, the petition has no merit and is liable to be dismissed.

However, the learned Counsel for the petitioners submitted that the petitioners may be granted some interim protection so that they may appear and seek bail.

Keeping in view the facts and circumstances of the case and pendency of the civil litigation, it is provided that if petitioners Daya Ram, Prayagnarayan, Smt. Suraj Mukhi, Ashok Kumar, Lal Jeevan and Sumit Narayan appear and apply for bail within one month from today their bail prayer in case Mo. 176 of 2009 under sections 420, 465, 467, 468, 471, 504, 506,I.P.C., P.S. Kotwali Jalaun, District Orai shall be considered and disposed of on the same day by the courts below in the light of the principles laid down by the Apex Court in the case of Lal Kamlendra Pratap Singh v. State of U.P. and others, 2009 (67) ACC 966 (SC) = 2009 (84) AIC 84.

Till the surrender of the petitioners before the Court or expiry of the aforesaid period of one month, which ever is earlier, the petitioners shall not be arrested.

With the aforesaid observations, the petition under Article 226 of the Constitution of India is disposed of.