Jagannath Acharya Goswami vs A. Rajagopalachari and Another

Dhavle, J.—This is an application in Criminal Revision against an order of the Deputy Commissioner of Manbhum, dated 21st January 1931, by which he ordered the stay of a prosecution under. Sections 471 and 196, I.P.C. until the decision of a civil suit to be filed by A. Rajagopalachari, the appellant before him and now the contesting opposite party. The order concluded:

If however no suit is instituted within a month, the order of the lower Court will be enforced subject to my appellate orders.

It appears that on 22nd February 1931 the Deputy Commissioner was again moved by. A. Rajagopalachari and ordered:

The civil suit having been filed, criminal proceedings are stayed till its decision. The Subdivisional Officer for necessary action,

R. Rajagopalachari, the Mahanth of the Gadi of Bero, died on 26th January 1930. Jagannath Acharya, the petitioner before me is a brother of the late Mahanth and claimed to succeed him by right of survivorship and also, I understand, in virtue of nomination by the late, Mahanth. Srimati R. Kamala Devi, daughter of the late Mahanth also claimed be have succeeded him by family usage and custom. Applications were made by both the brother and the daughter of the late Mahanth for the entry of their names in his place in the Land Registration Department, and in those proceedings Jagannath Acharya succeeded from the Court of first instance, namely the Court of the Deputy Collector to the highest revenue authority, the Board of Revenue. On 29th November 1930 the Deputy Collector who had dealt with the land registration matter made a written complaint to the Sub-divisional Magistrate of Purulia u/s 476, Criminal P.C., charging A. Rajagopalachari, husband of Srimati R. Kamala Devi, and one Hakshad Ali with offences under Sections 471 and 196, I.P.C. In this complaint the Deputy Collector said that it had transpired in evidence before him that Hakshad Ali on behalf of R. Kamala Devi had prepared certain collection papers which were forged, some receipts granted in the names of persons who were long dead and some alleged to have been granted to persons who swore that they had paid no rent to Kamala Devi or to Hakshad Ali. Upon this complaint the Subdivisional Magistrate took cognizance and directed the issue of summonses against the two accused persons. A. Rajagopalachari then appealed to the Deputy Commissioner u/s 476-B, Criminal. P.C. The Deputy Commissioner dealt with this appeal by his orders of 21st January and 22nd February to which I have already referred. He had also on receipt of A. Rajagopalachari''s appeal directed an interim stay of the proceedings, and his order of 22nd February which concluded with the words "to the S.D.O. for necessary action", or rather, his order of 21st January was taken by the Subdivisional Magistrate to mean that the proceedings before him were stayed till the disposal of the civil suit.

Jagannath Acharya now urges that the Deputy Commissioner had no jurisdiction to pass an order staying the criminal proceedings before the Subdivisional Magistrate, and that even if he had jurisdiction, he ought not as a judicial officer to have passed any such order.

Notices of the present application were issued to A. Rajagopalachari and Hakshad Ali; Hakshad Ali has not put in any appearance.

On behalf of Rajagopalachari it has been urged at the outset that this Court has no jurisdiction u/s 439, Criminal P.C. to deal with the matter. Mr. Hasan Imam, who appears for him has made it clear that it is not his contention that this Court has no jurisdiction at all. The application to this Court is not framed as an application only u/s 439, Criminal P.C., but also u/s 107, Government of India Act; and as Mr. Hasan Imam has expressly said that he does not contend that this Court has no jurisdiction to deal with the matter under the latter section it is not really necessary to scrutinize the jurisdiction of this Court u/s 439, Criminal P.C., on the present occasion. He has however drawn attention to several reported decisions.

One is the Full Bench decision of the Calcutta High Court in Har Prasad Das v. Emperor [1913] 40 Cal. 477, but the difficulty that arose in that case does not arise in the present case, as I have, under the orders of the Chief Justice, been doing not only criminal, but also Civil work these days. One of the points decided in Har Prasad''s case [1913] 40 Cal. 477 was that though Section 439 of the Code has no application in the case of an order, passed u/s 476 by a civil or a revenue Court, the High Court can in such a case exercise the powers vested in it by Section 115, Civil P.C. or Section 15, High Courts Act. There is also Faujdar Rai Vs. Emperor, in which it was held in this Court by Mullick, J. that the order of a Collector acting as a revenue Court, setting aside an order of a Sub-Deputy Collector and making a formal complaint u/s 200, Criminal P.C. was revisable u/s 115, Civil P.C. and that this Court had jurisdiction to interfere with that order also u/s 107, Government of India Act. Orders of this kind passed by registration officers have been dealt with in revisions by this Court in a large number of reported decisions. Mr. Hasan Imam has cited Ippili Raghunadha Patro v. Govinda Patro AIR 1928 Mad. 1032, a Full Bench decision of the Madras High Court, in which it was held that the High Court has no power in the exercise of its revisional jurisdiction either u/s 115, Civil P.C. or u/s 107, Government of India Act, 1919, to revise orders passed by the Board of Revenue under certain provisions of the Madras Estates Land Act. The decision only needs to be cited in the way I have done to show that it is inapplicable to the facts of the present case; it proceeded on the scheme of a particular Act (the Madras Estates Land Act), which has no application to the facts before me. There is also another consideration to be borne in mind. The Deputy Commissioner of Manbhum has a dual capacity. He could u/s 476-B, Criminal P.C., entertain an appeal against the complaint made by the Land Registration Deputy Collector, and in doing so, he would be acting in his capacity as a Revenue Officer. It has not been suggested before me that though the Deputy Collector actually signed the complaint as a Magistrate of the first class, that circumstance in any way alters the fact that the appeal against his complaint could only be entertained by the Deputy Commissioner as the superior revenue authority. But the Deputy Commissioner is also District Magistrate, and all other Magistrates in the district are thus subordinate to him in his magisterial capacity. His order sheet is on a form proscribed for Magistrates records, but he has signed his orders as Deputy Commissioner. These are however perhaps small matters. What is important is that when the Deputy Commissioner received the appeal on the 13th December he ordered among other things that "in the meantime proceedings should be stayed," and that accordingly the proceedings before the Subdivisional Magistrate were in fact stayed.

It is plain that in his revenue capacity the Deputy Commissioner had no authority whatsoever to stay the criminal proceedings pending before the Subdivisional Magistrate, and that so far as the subordinate revenue Court was concerned, there were no proceedings pending at the time for the Deputy Commissioner as a revenue authority to stay on receipt of an appeal which was actually headed "Revenue Appellate Jurisdiction." There has clearly been a certain amount of confusion between the two capacities of the Deputy Commissioner as a Revenue Officer and as District Magistrate. Mr. Chaudhuri who appears for the petitioner has also pointed out that the Commissioner of the Division and the Board of Revenue have declined to interfere with the Deputy Commissioner''s order as they consider that they have no jurisdiction in the matter. It seems to me that in the circumstances of this case Section 439, Criminal P.C. is not inapplicable so far as the Deputy Commissioner must be taken to have acted in his magisterial capacity in staying the criminal proceedings pending before the Subdivisional Magistrate, and that in any event the petitioner is entitled to invoke Section 107, Government of India Act.

Whether the Deputy Commissioner acted in his revenue or his magisterial capacity, Section 476-B, Criminal P.C. only empowers the superior Court to direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made u/s 476, The Deputy Commissioner did not adopt either of these courses; the latter, of course, was out of the question; but stayed the criminal proceedings till the disposal of the civil suit which, as the petitioner points out, may take ten years. It has been urged on behalf of Rajagopalachari that Section 476-B must be read with Chap. 31 of the Code, and that so read, the appellate authority could under Clauses (c) and (d), Sub-section 1, Section 423 of the Code, pass an order staying the criminal proceedings. In support of the first branch of the contention Mr. Hasan Imam has cited the case of Surendra Nath Maity Vs. Susil Kumar Chakrabarty, , but even if this be so, it is difficult to see how the order to stay criminal proceedings can be passed in an appeal u/s 423 from a complaint which has been actually made by a subordinate revenue authority to a competent Magistrate and which is being investigated by the latter. Clauses (c) and (d), Sub-section 1, Section 423, do empower the appellate authority to alter or reverse any order under appeal or to make any amendment or any consequential or incidental order that may be just or proper. Reversing the order in this case would presumably be the same as withdrawing the complaint. Altering the complaint would, I conceive, have reference to the sections and persons mentioned in the complaint made by the subordinate authority; and this would probably be hardly distinguishable in a case like the present from the amendments referred to in Clause (d), There can be no question of any consequential or incidental order unless the appellate authority finds something still before the subordinate Court or does something itself, on which such consequential or incidental order can operate. Can a stay of criminal proceedings already begun before the Subdivisional Magistrate come within the authority of the superior revenue Court to reverse, alter or amend the complaint or make, any consequential or incidental order that may be just and proper? I do not think that this question can be answered in the affirmative without unduly straining the wording of the statute. Could the Deputy Commissioner have passed such an order in his magisterial capacity? He does not purport to do so and there is indeed nothing to suggest that he gave any more thought to the precise nature of his powers than, as will be seen later, to the merits of the case. Mr. Hasan Imam has referred to Pars Ram v. Jalal Din [1916] 32 I.C. 135, a decision in which it was held that a Court of justice has inherent jurisdiction to stay proceedings. The facts of that case are however easily distinguishable from the facts of the present case, as the appeal to the Deputy Commissioner was directed against the complaint preferred by the Deputy Collector, a completed proceeding, to which Section 344, Criminal P.C., could have no application.

In Krishna Row v. P.S. Seshasubramania Iyer AIR 1923 Mad. 688 Ayling, J., held that there is no provision in the Code of Criminal Procedure which gives a District Magistrate power to stay proceedings in a criminal Court subordinate to him, and that the power of the High Court to pass such an order can be exercised only under its general powers of superintendence u/s 107, Government of India Act. In another Madras decision however Namibia Pillai v. Sudalaimuthu Nadan AIR 1923 Mad. 595 Spencer, J., took the view that a District Magistrate has wide powers of superintendence over his subordinate Magistrates u/s 17 of the Code, which might be considered to justify special directions being issued by him to stop or go on with particular proceedings pending before them. But, with all respect, the District Magistrate''s powers u/s 17 seem to relate to the distribution of business among. Subordinate Magistrates, and I am not aware of any decision in these parts contrary to the earlier Madras view of Spencer, J. I am therefore inclined to hold that the Deputy Commissioner had no jurisdiction, either as a revenue Court or as a District Magistrate, to stay the criminal proceedings pending before the Subdivisional Magistrate.

If it be assumed in favour of Rajagopalachari that the Deputy Commissioner somehow or other had power to stay the criminal proceedings, the question arises whether his order is at all right, and if not, whether this Court should interfere with it. As to the first, point, the facts are perfectly clear. It has been concurrently found by the Land Registration Deputy Collector and by the Deputy Commissioner himself as the appellate authority in the land registration proceedings that in those proceedings rent receipts or counterfoil rent receipts were filed for Kamala Devi which were obviously forged, and filed with, a list which according to Rajagopalachari''s petition of appeal to the Deputy Commissioner was written by Hakshad Ali and signed by Rajagopalachari. In the plaint of the suit instituted by Rajagopalachari''s wife after the Deputy Commissioner''s order of 21st January 1931, it is said in para. 21 that she came to know that the said collection papers had been prepared in collusion with Jagannath Acharya:

some in the name of dead persons and some in the name of personal servants of the principal defendant (Jagannath) who could not possibly have paid rent to Hakshad Ali except at the instance of the principal defendant (Jagannath.)

It has not been urged before me on behalf of Rajagopalachari that the papers were in fact not forged. The plaint makes out that the papers had been forged in collusion with Jagannath, while Jagannath''s case in his written statement is that they had been forged in collusion with Rajagopalachari. That they were forged by Hakshad Ali is thus not in dispute at all and was never doubted, so far as I can find, even by the Deputy Commissioner himself. The forgery by Hakshad Ali is consequently not among the issues framed in the civil suit, and could not, on the materials before the Deputy Commissioner, have been regarded as a matter calling for a decision by the civil Court, if the Deputy Commissioner had given any thought to the scope of the complaint and that of the suit. Hakshad Ali was not a party to the appeal before the Deputy Commissioner, and the Deputy Commissioner overlooked the fact that his order of stay was not limited to Rajagopalachari, though the civil suit projected could afford no ground at all for the stay of proceedings against Hakshad. As regards Rajagopalachari, the learned Deputy Commissioner was influenced by the consideration that the genuineness of the rent receipts was going "to form a subject of examination" in the civil suit. But this completely overlooked the fact that it was common ground that the papers ware forged. It was perhaps a small matter that he did not notice that it was not Rajagopalachari but his wife that could file the suit. But it is open to doubt how far he endeavoured to ascertain that the suit tiled by Kamala Devi really raised the question he referred to, before finally ordering on the 22nd February the stay of the criminal proceedings till the decision of the suit. He did not apparently call for the plaint.

In para. 11 of his petition of appeal to the Deputy Commissioner Rajagopalachari had said that the receipts were not adduced in evidence on behalf of his wife, that her claim was not based upon realization of rents, and that "her claim was based solely on the ground of custom and on a question of law." "The genuineness of the rent receipts, etc." could therefore hardly arise in the suit. The plaint shows that besides a declaration of title, it is prayed that a decree be passed confirming Kamla Devi''s possession as shebait. The claim is thus not "based solely on the ground of custom and on a question of law," and the change seems on the face of it to be due to the one supplied by the Deputy Commissioner''s order of the 21st January.

It is true that Kamala Devi could not--and did not--go so far as to maintain that the receipts were genuine. But when read with the Deputy Commissioner''s order the plaint seems to raise the question of Jagannath''s collusion with Hakshad in the matter of the forged receipts only in order to stave off Rajagopalachari''s prosecution under Sections 471 and 196, I.P.C. Jagannath''s written statement in the suit expressly alleges that the matter was untruly raised in the plaint in order to save Kamala Devi and her husband from the criminal prosecution. It then proceeds to allege that the collusion was between Hakshad and Kamala Devi''s husband and his advisors, so that an issue had to be actually framed as to whether Jagannath caused Hakshad to prepare false collection papers as alleged in the plaint. If Kamala''s claim was to be solely based on the ground of custom and on a question of law, as Rajagopalachari stated in his petition of appeal to the Deputy Commissioner, such an issue could hardly be material; and all that Mr. Hasan Imam has bean able to suggest as an explanation is that the plaintiff will rely as regards the custom alleged by her on its recognition by Jagannath upon the death of the late Mahanth. If so, it is noticeable that, that was not the case of Rajagopalachari in his petition of appeal to the Deputy Commissioner at all, though there is no reason to think that the Deputy Commissioner attended to that aspect of the matter,

It has been repeatedly observed that there is no invariable rule as regards the staying of criminal proceedings pending the issue in a civil suit. In the present case the genuineness of the receipts is not going to be an issue in the civil suit, at all. On the issues actually framed, the only thing that the civil Court may have to pronounce upon after an earlier pronouncement by a criminal Court if the criminal proceedings are allowed to go on, is the question of collusion between Rajagopalachari or Jagannath and Hakshad Ali. Now, that is not a matter of the complicated kind for the decision of which sometimes civil Courts are preferred as peculiarly qualified, as for example, the genuineness of a will or other document, the validity of a title, and the bona fides of a civil claim. The observations made in such cases as Mt. Phuleshra Kuer v. Emperor [1920] 1 P.L.T. 697, cited by Mr. Hasan Imam, have therefore no application in the circumstances. That, decision from Mt. Phuleshra Kuer v. Emperor [1920] 1 P.L.T. 697 was referred to along with C. Ramiah v. N.K. Ramiah AIR 1927 Mad. 778 by Wort, J., in Hirday Narain Singh v. Emperor AIR 1929 Pat. 500. As Jackson, J., pointed lout in C. Ramiah v. N.K. Ramiah AIR 1927 Mad. 778 we cannot in these matters proceed on the assumption that there may be a manifest and irreparable injustice done in the criminal Court, when the integrity of the Court is not impugned; we must rather assume that in either Court justice will be done; and which Court precedes the other is merely a question of convenience. Mr. Hasan Imam has laid stress on Wort, J.''s observations in Hirday Narain Singh v. Emperor AIR 1929 Pat. 500 that whether there should be a stay or not pending the decision of a civil suit is a matter for the discretion of the trial Court, and that where the trial Court has exercised its discretion, this Court cannot in criminal revision interfere with the order, if there be no suggestion that the Court below in exercising its jurisdiction has acted in a manner which is unjudicial.

I do not think that these observations really help Rajagopalachari. The learned Deputy Commissioner seems to have been prevented from exercising a proper discretion by a complete misappreciation of the facts. He was apparently under the impression that the suit was going to be filed by Rajagopalachari, who had however no conceivable right to litigate about. He was also under the impression that the genuineness of the receipts would form a subject of examination in the civil suit; and that impression, as I have already shown, was completely erroneous and could not have been formed if the Deputy Commissioner had even cursorily studied Rajagopalachari''s petition of appeal. He was further apparently under the impression that the civil suit did in fact raise the question of the genuineness of the rent receipts, though it did nothing of the kind, a matter which would have be come patent to him if he had read Rajagopalachari''s petition of 21st February and called for the plaint. He did not pause to consider the extent of his own powers or the terms of his order of stay which were not limited to Rajagopalachari but extended also to Hakshad for whom there was nothing said at that time and nothing has been said since. An order which has been passed on such a complete misunderstanding of the position can hardly be treated as an order made in the exercise of the Deputy Commissioner''s judicial discretion.

Mr. Hasan Imam has finally urged that if the Deputy Commissioner had no jurisdiction to stay the criminal proceedings he should now be asked to pass a proper order on the petition of appeal u/s 476-B. The principal if not the only alternatives before the Deputy Commissioner were to dismiss the appeal and to direct the withdrawal of the complaint. He did not adopt the latter in terms, but it is urged on behalf of the petitioner that the Deputy Commissioner''s order will practically have the effect of an order of withdrawal. It is pointed out that the suit of Rajagopalachari''s wife has been filed in Bankura outside this province and that it may take ten years for final disposal, a possibility which does not appear extravagant in view of the duration of the suit which was brought against the late Mahanth and which ended with the Privy Council decision reported in Janoki Debi v. Gopal Acharjia Goswami [1883] 9 Cal. 766. The Deputy Commissioner must have felt that there was no justification for dropping the proceedings altogether once and for all, for there were no materials before him for holding the contrary. The complaint of criminal offences was made by a competent authority whose conclusion was endorsed by no less than three superior revenue authorities, including the Deputy Commissioner himself. To send the case back, now to the Deputy Commissioner would merely be to invite him to record an order dismissing the appeal u/s 476-B, and it does not seem to me that any legitimate purpose will be served by taking that course. It is in my opinion sufficient for the purposes of the application before me to say that the Deputy Commissioner''s order staying the prosecution must be set aside, and that the proceedings before the Subdivisional Magistrate should be resumed at once and properly dealt with as proceedings founded on the complaint, not of a private party, but of a public authority.