Pastor Dharmaraj Johnson and 12 Others vs State

Thangamani, J.—The petitioner in Crl.O.P. No. 995/91 is accused number 1 in C.C. No. 286 of 1990 on the file of the Judicial Magistrate No. 1, Kuzhithurai. Petitioners in Crl.O.P. No. 1944 of 1991 are accused 2 to 13 therein. On 23.6.90 one Mohankumar preferred a complaint in Arumanai Police Station, Kanyakumari District, against the petitioners under Ss. 147, 148, 447, 427, 379 and 506-II I.P.C. alleging that his father has purchased an extent of 1.43 acres is Survey Nos. 1013 and 1014 of Edaicode village from one Vedakkan the father of A.1 Dharmaraj, discharged the bank loan as recited in the sale deed and was in enjoyment of the property. It appears that the said Vedakkan has filed O.S. No. 120 of 1988 in the court of the Subordinate Judge, Kuzhithurai against the said Mohankumar and others for a declartion that Vedakkan is the owner of the suit property and for consequential injunction. On 15.12.1988, the learned Subordinate Judge has granted an interim injunction restraining the present complainant and others from committing any act of waste by cutting the trees or forming new ridges and destroying the old ridges. They were also directed not to alter the physical features of the property. Notice was ordered to the complainant returnable on 18.1.1989. Thereafter, on 25.7.1990 the injunction application was ordered to be called along with the suit. The complainant referred to above states that subsequent to the institution of the civil suit on 13.10.1988 possession of the property was handed over to the complainant by court Amin with the aid of police and since then they are in enjoyment of the property. However, on 22.6.1990 at 10 a.m., the petitioners herein trespassed into the land armed with deadly weapons, destroyed the crop and took away coconuts after threatening the complainant. After investigation, the Sub Inspector of Police has filed a charge sheet under the above said sections. In these petitions, the accused therein seek to quash the entire proceedings in C.C. No. 286 of 1990 on the file of the Judicial Magistrate, Kuzhithurai.

Learned counsel for the petitioners submits that the petitioners were in lawful possession of the property and the injunction order in then favour was in force on the date of the alleged occurrence on 22.6.1990, while so, parallel criminal proceedings against them are not maintainable and most of the petitioners are workmen engaged by the first accused for farm work. In support of this contention he has placed reliance on Ram Sumer Puri Mahant Vs. State of U.P. and Others, wherein the Supreme Court has held as follows:

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under S.145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.

This citation cannot help the petitioners since it relates to initiation of proceedings under S.145, Cr.P.C, during the pendency of the suit. However, the next decision relied on by learned counsel for the petitioners in Tliankappan v. Thankaraj (1988 L.W. Crl. 395) rendered by this Court is directly on the point. There, the complaint was for offence under S.147, 148, 437, 427, 448, 379 and 506-II I.P.C., against the petitioners-Accused on the allegation that they trespassed into the rubber garden of the complainant, cut and removed standing trees and when the complainant tried to interfere, the petitioners criminally intimidated him. There was already a civil suit pending between the parties in respect of the very same property, for declaration and injunction. The major offences compalined of were under Ss.447 and 379, I.P.C. namely, trespass and theft. In the above circumstances Padmini Jesudurai, J. took the view:

The question as to whether an offence under S.379, I.P.C., is committed with reference to the rubber trees, will also depend upon the fact, as to who is in possession of the property. While a civil suit is pending with reference to these questions, it is not desirable that the police should determine the respective claims of the parties and given even a prima facie finding regarding ownership and possession. Apart from that, the other offences are only under Ss. 147, 148 and 427, I.P.C., which also, to some extent, depend upon the question as to who is in possession of the property. The only other offence complained of, is under S.506 Part II, I.P.C., it is therefore obvious that the offences alleged to have been committed, revolve round the question as to who is in possession of the scene property. This would be properly determined by the civil court. It is also represented that a similar complaint had been earlier presented by the respondent to the police who, after investigation, had dropped the matter as the dispute was of civil nature. Whatever that be, in view of the nature of the allegations made in the complaint and in view of the fact that all the offences depend upon the determination of the civil rights of the parties, I feel that investigation by the police is not necessary. The Civil Court will determine the rights of the parties.

And quashed the criminal proceedings. The said decision squarely applied to the facts of the present case also. A civil suit was pending between the parties on the question of possession when the incident is stated to have taken place. The complainant claims that possession was handed over to in through court with police aid on 13.10.1988. The petitioner relied on the injunction order in force in their favour on the relevant date. So there could be no doubt that the civil court is the best forum to go into the controversy between the parties and in the interest of justice it will not be proper for the criminal court to inquire into the right of possession.

Learned Public Prosecutor cited the decision of the Supreme Court in M.S. Sheriff Vs. The State of Madras and Others, ,wherein two sets of proceedings arising out of the same facts were pending against the appellants therein. One was two civil suits for damages for wrongful confinement. The other was two criminal prosecution under S.344, I.P.C. for wrongful confinement. It was contended before the Supreme Court that the simultaneous prosecution of those matters would embarass the accused. The Apex Court has held as follows:

As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interest demands that criminal justice should be swift and sure that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

However the Apex Court itself has observed, in the same decision that

This however is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.

So the principle laid down in this decision cannot apply to the facts of the present case.

In the result, the petitions are allowed and the proceedings in C.C. No. 286 of 1990 pending on the file of the Judicial Magistrate No. 1, Kuzhithurai are hereby quashed.