Gnanasigamani Nadar vs Vedamuthu Nadar

Jackson, J.—The petitioner, an accused in R.C. No. 13 of 1926 on the file of the Court of the Stationary Sub-Magistrate'', Nanguneri,

moves this Court to stay that inquiry in exercise of its power of superintendence u/s 167 of the Government or India Act, 1915. A criminal

complaint has been filed against him for forgery with the permission of the Registrar. A fortnight later he filed a civil suit raising the issue of

genuineness of the same document. His plea is for stay of the criminal inquiry pending his civil suit.

These pleas are so frequently argued before this Court on first principles that it is advisable to consider what these principles are.

The main principle is that this Court in the exercise of its function of superintendence should not retard the legal work of the Subordinate Courts.

The necessity for dispatch is clearly laid down in Hem Chandra Ray v. Atal Behari Ray ILR (1908) C. 909 .

A stay order is in essence bad, and only justifiable on special grounds. Can it be said that cases of this sort, where a Criminal and Civil Court

are each seized of the question in issue, are specially governed by some peculiar principle which justifies a stay.

For instance, to take the argument most usually advanced in these cases, can it be said that where there is a common issue, it must first be finally

decided in the Civil Court before it is examined in the Criminal Court. A Criminal Court is in every way as competent as a Civil Court to examine

questions of possession or questions involving the genuineness of documents, and there is no particular reason for giving priority to the Civil Court.

Then can it be said that trials cannot be allowed to proceed simultaneously upon the same issue in different Courts because simultaneity is

essentially wrong and one trial, either the civil or the criminal, must therefore be stayed? Simultaneous trials may have their disadvantages, but when

in any circumstances the two several Courts must try the same issue, there is no reason to prefer consecutive trials. It is not as thoughthe trial which

is taken first would absorb or govern the other. A Criminal Court cannot decline to examine a question of forgery, because the forged document

has been admitted as genuine in a Civil Court; it must try the case sooner or later and on the general principle that judicial work should not be

retarded the sooner the better.

Here the observations in Nambia Pillai v. Sudalaitnuthu Nadan (1923) M.W.N. 276 are pertinent:

It is undesirable that this complaint of rioting and mischief should remain undisposed of till the Civil Courts has pronounced 0:1 the question of title,

especially when it is realised that the Criminal Court will in any case have to decide questions of possession, etc., upon which the judgment of the

Civil Court will not operate as res judicata.

Moreover there is special disadvantage in delaying a criminal trial.

A grave charge has been made against a gentleman and it is desirable both for his own sake and for everybody concerned that it should be

disposed of as quickly as possible, and if the proceedings be postponed until the final decision of the Civil suit, witnesses may not be available"".

Taj-ud-din v. Taj Muhammad (1921) 69 I.C. 380.

If delay would avoid conflicting decisions there might be more to be said for it; but it cannot do that. Conflicting decisions are the inherent risk of

the division of causes into civil and criminal. The risk is probably much less than the arguments in this type of case might lead one to suppose.

Ordinarily the same evidence will result in the same finding and if there are divergent views they ultimately flow in the ordinary course of procedure

to the same channel. If the District or High Court has upheld or quashed a criminal conviction, that Court is unlikely to confirm a divergent finding in

a civil suit. Nor need it be held that one Subordinate Court will be prejudiced by the opinion of the other. Apart from the fact that Judges may be

trusted to be masters of their own minds, the Criminal and Civil Courts are never trying precisely the same issue. In the Criminal Court guilt must

be established beyond all possibility of doubt, but the Civil Court weighs probability. An acquital of forgery in a Criminal Court does not mean that

the party will necessarily succeed in the Civil Courtthe authenticity of the document may still be doubtful; and if evidence is conclusive enough for

conviction in the Criminal Court, apart from any question of prejudice there must be every likelihood that the accused will be unsuited in the Civil

Court. And anyhow, if a case is delayed, since the Court is not relieved from the ultimate duty of trying it, what danger there may be of conflicting

decisions and prejudice is a factor in consecutive as well as in simultaneous trials.

It is some timers argued that if the trials are consecutive at least the parties are not hampered by having to conduct two causes at the same

time. This is a question of fact and is chiefly relevant to those cases where the accused in the criminal is defendant in the Civil Court. In the present

case where accused himself has elected to institute civil proceedings subsequent to the criminal complaint he can hardly claim that his resources are

unduly strained. And even where the accused is also defendant the harassment must be actual and something more than inconvenience. In the

present case, and probably in the majority of cases, there is no real difficulty in conducting simultaneous trials.

The petitioner has drawn my attention to the obiter dictum of a single Judge in Kanhaiya Lal v. Bhagwan Das:

Obviously it would be highly undesirable that the same dispute should be allowed to be fought out in two Courts, namely Criminal and Civil Courts

simultaneously.

It may be highly undesirable but the question remains whether it is less undesirable to have the dispute fought out first in one Court and then in

the other. That it must be fought out is inevitable, and it must be fought out in both Courts. If the civil case is stayed pending the criminal case, it will

have practically the same resuit as staying neither case; for ordinarily the criminal case will be finaly concluded in three to six months, and the civil

case in three to six years; so that delaying the civil case will have little effect and in my opinion will do no good. If the criminal case is stayed

pending the civil case, then, as pointed out above, a person presumably innocent, is left for years with a criminal case hanging over him; and if

ultimately proved to be guilty he will have successfully stayed off his well-merited punishment for an equal period. In either view the stay of the

criminal proceeding is objectionable. Therefore the less undesirable course is to adhere to the main principle, and to let both cases proceed with all

possible dispatch.

It is sometimes argued that one or other proceeding is an abuse of justice,, that the complainant has filed the criminal case in order to overawe

his civil antagonist; or that the latter has filed the civil case (as alleged here) to hamper the former. There may be cases in which such motives are

clearly apparent, but ordinarily speaking Courts should be chary of imputing wrongful motives for rightful actions. If the law allows a legal process,

it should not be condemned as unjust. In the present case, if the petitioner chooses to file a civil suit during the pendency of the criminal action

against him he should not be denied that right. His action only becomes questionably when he tries by virtue of this suit to set up other rights to

which he is not entitled.

In Mahomed Ibrahim v. Kattayan it is observed that it makes no difference whether the criminal prosecution is sanctioned or is one which may

be launched in exercise of private right, without sanction. A sanction is at any rate the guarantee of an independent third party that the prosecution

is not frivolous, and a mere move in the civil game. When a party has good reason to believe that he has been cheated by grave crime, if it is not his

public duty, it is undoubtedly his private right to resort to the Criminal Court and I should hesitate to describe his action as precipitant. Goberdhone

Pramanick v. Iswar Chunder Pramanick proceeds on the assumption that the summary inquiry by the Registrar before granting permission to

prosecute was unsatisfactory. Where there has been due inquiry there seems to be no reason why the Criminal Court should not take up the

matter.

The general rule, in my opinion, is that this Court should avoid staying proceedings in the Lower Courts, and the circumstances of the present

case afford no reason for treating it as an exception.