Broomfield, J.
1. This is a reference by the Additional Sessions Judge of Thana recommending that the trial of a criminal complaint of cheating filed by one Louis Phillip Dias against six accused persons and pending in the Court of the First Class Magistrate of Bandra should be stayed pending the disposal of a civil suit filed by two of these accused persons against the complainant. The date of the criminal complaint was March 7, 1983. The plaint in the civil suit was presented on March 8, 1933, but appears to have been signed on the previous day.
2. The short facts of the case are these. The complainant, who, according to his own description of himself, is a person much addicted to strong liquor, executed a sale-deed on November 2, 1932, by which he purported to sell to accused Nos. 1 and 2 two acres and a half of land near Santa Cruz for Rs. 3,000. His allegation is that the six accused persons conspired together and took advantage of the unfortunate propensity which I have mentioned, made him intoxicated and induced him to sign this sale-deed and admit execution of it before the Sub-Registrar in Bombay. According to him the value of the land, which he purported to sell, was really Rs. 13,000 and not Rs. 3,000. His explanation of the delay in tiling the criminal complaint seems to be that he was so completely intoxicated that he had no recollection whatever of where he had been or what he had done on the occasion in question and neither he nor his relations, in spite of making inquiries, were able to discover the facts about this sale-deed until sometime in February 1933.
3. Before the litigation began the parties exchanged notices. On February 10 the complainant sent a notice to the accused in which he set out substantially the allegations on which his criminal complaint is based and demanded the return of the sale-deed, threatening criminal or civil proceedings in case it was not returned. On February 17, the accused replied to this denying all the allegations and in their turn threatening litigation in default of possession of the land being handed over within a week. The reliefs claimed in the civil suit are a declaration of ownership of the land and possession thereof on the basis of the sale-deed. On April 10, 1933, the accused made an application to the trial Magistrate for stay of the proceedings. That was rejected by the Magistrate. On April 24 they made an application to the Sessions Court which was disposed of by the Additional Sessions Judge. He took a different view and referred the matter to this Court. I may mention that although the Magistrate refused to stay proceedings and the Additional Sessions Judge had no power to do so and this Court has made no order staying proceedings, the proceedings before the Magistrate have nevertheless been automatically stayed by reason of the fact that the record has remained in the Sessions Court.
4. Mr. Thakor, who appears for the complainant to oppose this reference, has raised a point of jurisdiction which I may deal with first. His argument is that the Magistrate's order declining to stay proceedings is not an order within the meaning of Section 435 of the Criminal Procedure Code, and that the Additional Sessions Judge had no power to refer the matter to this Court under Section 438. He has also contended that the power to refer to the High Court given by Section 438 only exists in matters which are strictly speaking matters for revision, that is to say, matters which this Court would deal with under Section 439, and cannot be invoked in the case of a matter of stay of proceedings, which this Court used to deal with under its inherent jurisdiction or power of superintendence and now deals with under the new Section 561A of the Code. In my opinion there is no substance in this argument. I cannot see any reason why the Magistrate's order should not be held to be covered by Section 435 or why Section 438 should be limited in the manner suggested. Mr. Thakor has not in any way questioned the jurisdiction of this Court. He admits that we might act upon our own initiative or upon information derived from whatever source. The Judge might have written demi-officially to the Registrar. In fact he decided to make a formal reference to the Court after hearing the parties. In my opinion it is no more than a question of procedure, and no point of jurisdiction really arises. I am not satisfied that there is anything wrong with the procedure which has been followed. But in any case the matter is now before the Court and we are bound to deal with it on the merits.
5. The question whether we ought to act upon the reference is more difficult. Several cases were cited. Almost all of these I have discussed in my judgment in the case of In re Ramchandra Babaji : AIR1933Bom307 . I do not propose to go over the same ground again. I think the effect of the authorities may be summarised in this way. Although, generally speaking, it is not desirable that civil and criminal litigation between the same parties on substantially the same facts should go on simultaneously, the mere fact that a civil case is pending is not by itself a sufficient ground for staying criminal proceedings. The rule which was laid down in Anna Ayyar v. Emperor I.L.R. (1906) Mad. 226 that the defendant in a civil suit ought not to be allowed to prejudice the trial of such suit by launching and proceeding with a criminal prosecution on the same facts against the plaintiff and his witnesses has been approved by this Court, and I take it we should generally stay criminal proceedings if there were reasons to believe that they had been launched with that object. Conversely, if we saw reason to believe that a civil suit had been launched with the object of prejudicing criminal proceedings, we should not be likely to stay the latter, though we should, if necessary, stay the civil suit. In all such cases one of the matters which the Court has to consider is whether, as Mr. Justice Patkar said in Jehangir v. Framji : (1928)30BOMLR962 , the object of the criminal proceedings is to prejudice the trial of the civil suit or to use them as a lever to coerce the accused into a compromise of the civil suit, and in that connection the question whether the criminal complaint or the civil suit was instituted first is always important. The Courts have frequently drawn a distinction between public and private prosecutions and indicated that stronger reasons for staying proceedings should be required in the case of the former than in the case of the latter. That may well be, I think, because in the case of a public prosecution the intention to prejudice civil litigation is not at all likely to exist. But this is not the only test nor is priority in time necessarily conclusive. Some cases are obviously more suitable for determination by a civil Court, for instance, it is not uncommon in Bombay to have complaints of breach of trust by one partner against another. Such cases often involve the examination of complicated accounts, for which the civil Courts have better means at their disposal than criminal Courts, and indeed it may often be impossible to say whether any criminal offence has been committed until accounts of the partnership have been taken and the civil rights of the parties have been determined. In that connection I may refer to the judgment of the learned Chief Justice in Emperor v. Jagannath Raghunathdas : (1931)33BOMLR1518 . Under such circumstances a criminal prosecution might properly be stayed, although there might be no reason whatever to infer any intention to prejudice or embarrass the civil litigation. There is no hard and fast rule in the matter. The Court has to consider the circumstances of each particular case and decide on grounds of justice and expediency whether it is proper that the criminal proceedings should be stayed, or, it may be, that the civil proceedings should be stayed or that both should be allowed to take their course.
6. The learned Magistrate was apparently not informed of the date on which the civil suit was filed. He assumed that it was filed after the criminal complaint and that assumption is correct. But inasmuch as the preliminaries of a civil suit naturally take longer, and as the civil suit was filed on the day next following the filing of the criminal complaint, it would seem to be unreasonable to suggest here that the civil suit was a mere attempt to counteract the criminal proceedings. The learned Magistrate's view that there is reason to believe that the civil suit has been filed with the object of prejudicing the criminal trial, and to coerce the complainant to compromise on terms to be dictated by the accused cannot be said to be justified on the facts so far appearing. Moreover he has not considered the delay in bringing the complaint between November and March. We cannot, of course, go into the merits of the criminal complaint or of the suit. But there is no doubt that this is one of the circumstances which the complainant will have to explain. On the other hand, it appears that there has been considerable delay in filing the civil suit also. We are informed that the explanation of this is that there was an oral agreement by which the taking of possession was postponed. But this alleged oral agreement seems to have been mentioned for the first time by the accused in their application to the Sessions Judge, It was not mentioned in the notice which they sent to the complainant on February 17.
7. On the whole we may say that the learned Magistrate is right so far that there seems to be at present no substantial ground for holding that the criminal complaint was filed in order to prejudice the civil suit. Nor as a matter of fact has the learned Additional Sessions Judge held this to be the case. The reasons which he has given for recommending stay of proceedings are not very easy to follow. He speaks about the necessity for a preliminary inquiry before the criminal complaint is tried. The Magistrate could, of course, have directed a preliminary inquiry 'if he thought that it was necessary. I think probably what the learned Judge meant was that having regard to the issues in the case the civil Court would be a more suitable tribunal than a criminal Court. At any rate it was suggested to us in the argument that the circumstances in which the sale-deed was executed and the question of the value of the land would be more likely to be satisfactorily investigated in a civil suit in which the persons concerned, including the accused in the criminal case, can be examined as witnessess and cross-examined. I think there is something in this, but at the same time what the learned Judge says about the accused taking the risk of going into the witness-box and subjecting themselves to cross-examination and so on is only one side of the picture. The complainant also is obviously taking a risk. In the criminal case the burden of proof will be on him and the presumption will be, until it is rebutted, that the accused are innocent. It seems to me to be difficult to say that the questions whether the complainant was drunk on November 2, 1932, whether the consideration was paid for the alleged sale, what was the value of the land, whether there was a conspiracy or not, are not fully within the competence of the Magistrate to decide for the purposes of the criminal case. In fact the question of the existence of a conspiracy will hardly arise for determination in the civil suit in which only two of the six accused are parties. Then again there is always the point that civil proceedings normally take longer than criminal and it is not difficult to find means of delaying a decision, That is one of the matters to be borne in mind in deciding whether the ends of justice require that criminal proceedings should be stayed. If the complaint is a false one, as the accused allege, then it is likely to be thrown out before it can cause any serious delay in the disposal of the civil suit. If, on the other hand, it is a genuine case, to hold it up for several mouths may work injustice. The grounds for ordering a stay in this case appear to be much weaker than in any of the cases which we have been asked to consider. We doubt very much if it can be said with any confidence that any definite advantage is to be gained or any material hardship or inconvenience avoided by interfering with the ordinary course of proceedings. We, therefore, decline to interfere and discharge the rule.
Divatia, J.
8. I agree. As to the point of jurisdiction which has been urged by the learned counsel for the complainant, I do not think there is any substance in it. Under Section 438 of the Criminal Procedure Code, the Sessions Judge can, on examining the record of any proceedings under Section 435, report for the orders of the High Court the result of such examination, and if he can make such report to this Court for any action to be taken by it under Section 439 of the Code in its revisional jurisdiction, I do not see why the Sessions Judge cannot make a similar report and move the High Court for interference under the Code itself under another section, viz., Section 561A in its inherent jurisdiction. It does not matter whether this Court interferes in its revisional jurisdiction or in its inherent jurisdiction so long as it is moved by the Sessions Judge. Therefore, I think Section 438 is not limited to the interference of the Court under Section 439 but it can interfere under the wide power which it possesses, whether under Section 439 or Section 561A.
9. Then as to the merits, I agree that on the facts of this case the criminal proceedings need not be stayed. Without going into the merits of the case on both sides, it appears that neither side has satisfactorily explained the delay in launching the proceedings. The first notice was given by the complainant on February 10 and it was in reply to that notice that the opponents threatened to take civil or criminal proceedings, and, although the launching of the proceedings themselves has been practically simultaneous, it does not follow in this case that the civil proceedings should be gone into first before the criminal complaint is decided. The learned Magistrate himself is of opinion that no ease is made out for stay of proceedings before him, and, although there is no hard and fast rule as to stay of criminal proceedings, on the facts of this case it cannot be said that the criminal complaint that has been filed by the complainant is launched with any motive or object in the mind of the complainant so as to prejudice the civil proceedings. It would have been a different matter, if this had been a complicated matter which the civil Court would have more satisfactorily gone into than the criminal Court. But that is not the case here. I, therefore, think that no case is made out why the criminal proceedings should be stayed, and I agree that the rule should be discharged.