ORDER
1. This is a revision petition against the order of the learned Special First Class Magistrate, Chickballapur, refusing to stay proceedings in C. C. No. 1536 of 50-51 on the file of his Court pending decision of the matter in dispute between the complainant before the Police and the accused, in O. S. 263 of 50-51 on the file of the Munsiff of Doddaballapur. According to the criminal case the accused have committed theft by cutting and removing some timber. The case of the complainant before the Police is that he purchased them from one Hanumantha Reddy. One of the accused has filled a suit claiming the timber as his having purchased the same from not only Hanumantha Reddy but also his two brothers. The complainant before the police has in the civil suit denied the genuineness of the document in favour of the principal accused and claims to have purchased the timber from Hanumantha Reddy. Thus it has to be stated that the principal accused in his plaint admits his cutting and removing the trees and has claimed relief in respect of the obstruction caused by the complainant before the police. The main point of dispute in both the cases is who the owner of the trees is. The point for consideration is whether the learned Magistrate used his discretion properly in refusing to stay the proceedings in his Court pending decision of the same matter in the civil Court. As stated in Section 344 (1) of the Code of Criminal Procedure :
'If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same.'
The learned Magistrate had every power to post- pone the commencement of the criminal case or to adjourn it pending decision of the civil case under this section, in case he found that the point in dispute is one which the criminal Court cannot finally adjudicate upon and it is much better that it was decided by the civil Court. Though it was held by this Court in a case reported in '40 Mys. H C R 149 that Section 344 of the Code of Criminal Procedure confers no authority on a trial Court to adjourn a case 'sine die' pending the decision of a civil suit, it had been held in '39 Mys H O R 544 that the Magistrate had such a power. These are decisions of single Judges and the matter was referred to a Bench and the point was decided in the case reported in '46 Mys. H C R 639. The view taken up in '39 Mys H C R 544 was upheld.
2. It is unnecessary to refer to the case law of the High Courts outside Mysore as this has been done in the case reported in '46 Mys. HC Reports 639 at page 649.' The main point for consideration in a case where the criminal Court is asked to stay a criminal case pending decision in a civil suit is whether the point for consideration in the criminal case is also substantially in issue in the civil case. The Court has to apply its mind and see whether a conviction is possible if a finding of the civil Court is in favour of the accused. The Court has then to see whether the parties in the two cases are substantially the same. Then again the possibility of the criminal case having been filled to coerce the accused to a compromise in the civil suit has to be examined. Though these are some of the questions that might arise, it is for the Magistrate in each case to see whether on the whole it is desirable to postpone the criminal case pending decisions in the civil case.
3. In this case it will be noticed that the civil suit between the complainant before the police and the principal accused in the case is in respect of the matter in dispute in the criminal case. The subject-matter of the dispute in both the cases is the timber referred to above. As observed in the case reported in '46 Mys II C R 639, most Courts in British India have recognised that when the parties are the same, or substantially the same, and the subject-matter in issue both in the criminal case and the civil suit is substantially the same, the proceedings in the criminal case should be stayed till there is an adjudication on the point in the civil Court, in fact both these conditions exist in the present case. It is, therefore, clear that the learned Magistrate did not use his discretion properly in not having stayed the criminal case pending decision of the civil suit. It may be added that the proceedings in the two Courts if carried on at the same time may be embarrassing to the parties. In fact a receiver has been appointed by the civil Court to take care of the timber which has been cut. In an affidavit filed by the complainant, in Miscellaneous Appeal No. 103/ 50-51 on the file of the District Judge, Bangalore, he says :
'under the circumstances I beg to submit that this is very embarrassing to me and I have to face two orders of two different Courts which are in conflict with each other.'
If the miscellaneous proceedings are embarrassingto the complainant before the police it must bemore so to the accused. The order of the lowerCourt is set aside and it is ordered that the Criminal Case No. 1536 of 50-51 be stayed pending decision in O. S. No. 263 of 1950-51.
4. Revision allowed.