Molhu Rai and Another vs Emperor

Rowland, J.—This is, an application to stay proceedings pending before a Magistrate against the petitioners. These proceedings began with the presentation of a complaint on 5th May 1936 by the opposite party Sobran Koeri. It was alleged in that complaint that the petitioners had forcibly taken the thumb impression of Sobran Koeri on a blank paper on a date rather less than two months before the date of the complaint. The actual date is said to be 10th April 1936. The petitioners suggest that this prosecution is merely directed against them as a counterblast to a civil suit instituted by them on 18th April 1936 in the Court of the Munsif claiming a sum of Rs. 255 from Sobran Koeri. The suit, it is said, is based on a handnote dated 5th March 1935 and the summons was served on the defendant on 27th April 1936, that is to say, eight days before the presentation of the complaint. If it is a fact that the criminal prosecution of the petitioners was instituted as a counterblast to the civil claim of the latter, then the case would be closely analogous to that in Banambar Chhotra Vs. Nata Behra, . in which Adami, J. granted stay of criminal proceedings pending the decision of a civil suit. In that case the civil suit was brought on a handnote and after its institution the complainant presented a complaint to the effect that he had gone to the petitioner (plaintiff of the suit) but the petitioner had failed to return to him the pronote and therefore he had been cheated. In that case the criminal proceedings were stayed by the order of this Court in order that the civil Court should first decide on the genuineness of the plea of payment and refusal to return the hand-note. The reply on behalf of the opposite party is that the story of the extorted thumb impression did not take its origin on the 5th May, that is after the service of summons in the plaintiff''s suit but at a much earlier date, namely 11th April 1936, when Sobran went to the police station and made a report which was entered in the station diary to the effect that Molhu Rai on the previous day had taken his left thumb impression on a blank paper saying that there was something due from him In that saneha, which by the way has not yet been proved in the criminal Court, it may be noticed that there is no mention of Chatardhari Rai, and it is not stated that the thumb impression was taken by force.

The High Courts have invariably refused to lay down any fixed rule in dealing with cases of this nature. It is regarded as-ordinarily a question of convenience whether the proceeding of one party or of the-other party should be heard first. In dealing with this question of convenience the Court of first instance has a discretion and the High Court ordinarily will be by no means eager to interfere with the exercise of that discretion if it is judicially, exercised. In the present case had the'' question of convenience been before me as-a Court of first instance, I have no doubt that I should have been of opinion that the balance of convenience was in favour of the money suit in the Munsif''s Court being first determined and the criminal proceeding being decided afterwards. The Magistrate has not given reasons for refusing to stay the trial before him but merely says that he does not see sufficient ground to postpone the criminal proceedings. I do not feel sure that the Magistrate has really considered the balance of convenience. In the circumstances of this particular case I shall follow the example of Adami, J. in Banambar Chhotra Vs. Nata Behra, . and direct that the criminal proceedings be stayed pending the disposal of the civil suit which I hope the Munsif will do his utmost to expedite.