NAVED AHMED vs RAKESH KACKER

THE question raised in the present case is whether it can proceed before this Commission in the face of the parallel criminal proceedings initiated on the FIR of the complainant by the police.

WE have heard learned Counsels for the parties at length. According to the learned Counsel for the opposite party, if the opposite party files written statement in the present case then it will have to disclose the defence which will prejudice the opposite party in the defence to be set in a criminal case. According to the learned Counsel in a criminal case, the accused cannot be compelled to disclose his defence till the evidence of the prosecution is complete. According to learned Counsel if it has to file a written statement, then it may have to file all the documents which are required for his defence before this State Commission and in doing so the entire defence of the opposite party will be known to the complainant which will affect the merits of his case in the criminal proceedings. Learned Counsel for the opposite party has placed reliance on certain cases which shall be discussed presently.

On the other hand learned Counsel for the complainant has argued that even if a criminal case is pending against the opposite party, on his negligence then it is no bar to proceed with the case in the State Commission. According to learned Counsel the reliefs claimed in both the Courts will be entirely different. In the Criminal Court, only criminal negligence on the part of the opposite party is to be seen and no damages can be awarded by the Criminal Court. According to learned Counsel before the State Commission, the complainant has claimed for damages on account of the sufferings which was suffered by the patient due to the negligence of the opposite party. Thus according to him the controversy is entirely different in these two cases.

THUS the only question which requires determination is whether any prejudice will be caused to the opposite party if he is directed to file his written statement in the State Commission and to disclose his defence even before the evidence of the prosecution in criminal case is closed before the Criminal Court. In the first instance we take up the position of law which has been placed before us by the respective parties. In the case of Jitendra Nath v. Dr. (Mrs.) Manju Geeta Mishra & Ors., I (1995) CPJ 96, a Bench of the State Commission at Patna has held that where two parallel proceedings, one in the Criminal Court and the other before the State Commission are pending, in which the facts stated in the complaint petition and the criminal proceedings are identical, then it will not be proper as a matter of policy and principle where the subject matter of the complaint is sub judice before the ordinary Court, a concurrent adjudication in respect of the same should not be conducted under this Act. It further dealt with the criminal case which was also pending between the parties.

THE next case in this series is the case of Santosh Sharma & Ors. v. State Bank of India & Ors., II (1991) CPJ 262 (NC)=1991 (1) CPR page 103. In this case the National Commission held that it is common ground before us that the police investigated into the matter and have registered a criminal case in which respondent Nos. 1 and 5 figure as accused and the said case is pending trial before the concerned Sessions Judge. This matter is also sub judice before the Civil Court. On these facts it was held by the National Commission that it is not open to it to hold enquiry into the factual question as to whether the allegations contained in the complaint petition are correct and true when the matter is pending before the Criminal Court. Thus it shows that when a matter is pending before the Criminal Court, the proceedings pending before this Commission cannot be continued. Similar question was raised and decided by the National Commission in the case of Pardes Dehydration Company v. Chairman, Bank of India & Ors., III (1992) CPJ 389=1992 (2) CPR, 444. Thus in this case it was held that as an identical question which has been raised and is to be decided before the Criminal Court. THE State Commission should not proceed with the complaint case. On the other hand learned Counsel for the complainant has placed reliance on the case of Mrs. Shanta v. State of A.P. & Ors., III (1997) CPJ 481 (DB). In this case it was held by the High Court of Andhra Pradesh that when there was no bar to take action under the civil side against the State Government which is liable to compensate for the negligence of its servant in the case of serious injuries and the petitioner at liberty to take action in tort for damages under private law and criminal action against concerned. This case merely lays down both the options are open to the complainant to take action for damages under the ordinary civil law and to take criminal action against the person who has caused the injuries. But the question whether both these proceedings can simultaneously proceed or not has not been taken up and decided. This question did not arise in this case. Hence this case will not apply to the facts of the present case. The next case is of Rambal Engineering Products Pvt. Ltd. v. Patel Roadways Limited, II (1994) CPJ 210=1994 (1) CPR p. 559. In this case it was held that when a criminal investigation is pending into the matter, then it is not the concern of the complainant and it is no bar to seek redressal before the Forum. The next case in this series is the case of Canara Bank & Ors. v. Sreeram Srinivas, II (1994) CPJ p. 580. In this case it was held that in a criminal case which is pending to be adjudicated where the cheque is forged or not is a separate matter from the enquiry into the complaint than that of the criminal case. It was held that the complaint is maintainable. This case also does not apply to the facts of the present case before it does not lay down any law whether both these proceedings can continue at the same time or not. It merely state that both the cases can proceed. Last case cited by the learned Counsel is that of Mahajan Steel Sales v. Santosh Rani, II (1992) CPJ 723. In this case it was held that criminal case for connected anciliary offences is in no way barred by the maintainability of a consumer dispute before the redressal agency under the Act. This case law also does not throw any light on the controversy pending disposal before it.

IN the present case the complainant has alleged negligence of the doctor who is the opposite party in this case and it operated upon the patient by leaving a piece of gauze in the stomach after surgery. When the patient was not cured, he consulted other doctors at Bulandshahr and when the ailment did not subside the patient was taken to the Aligarh Jawaharlal Nehru Medical College Hospital. The doctor there found that a gauze is obstructing the passage in the intestine. Thereafter an operation was done and the gauze was taken out. According to the complainant this was due to the negligence of the doctor who had conducted the operation. This allegation has been denied by the opposite party and has alleged that he did not leave the gauze during the operation. On the basis of these facts it is apparent that before the State Commission as well as Criminal Court, these facts will have to be considered as to whether the gauze was left during the operation by the opposite party or not and if the opposite party is directed to file a written statement then naturally his defence which he has to take before the Criminal Court which is pending, prejudice will be caused to him. No doubt the findings arrived at by the Criminal Court are not binding on the Civil Court, but even then one has to judge the matter in the light of the right available to an accused not to disclose his defence in a Criminal Court before the completion of the prosecution evidence. The defence by the accused is disclosed at the time of his statement under Section 311 of the Criminal Procedure Code and thereafter in the evidence which he may lead in defence of his case. These two statements of the accused are recorded after completion of the prosecution evidence. Before that the accused cannot be compelled to disclose his defence even though he may put suggestions to the witnesses of the prosecution during the course of cross-examination which may indicate the defence which the accused is going to take. It is upto the accused to disclose his defence during the course of cross-examination of the prosecution witnesses or not but he cannot be compelled to do so.

THEREFORE, it will be expedient in the interest of justice to stay the proceedings of this case till the criminal case is decided. Thus we hold that this case shall not proceed till the criminal case pending against the accused on similar facts is decided by the Criminal Court. The proceedings in the case are stayed awaiting the final orders of Criminal Court. Put up for further orders on 15.4.2000. Ordered accordingly.