Sudhir Chakraborty and anr. Vs. the State and anr. - Court Judgment

Excerpt:
- ordern.k. bhattacharyya, j.1. by this instant revisional application under sections 397, 401 and 482 of the code of criminal procedure, 1973, the two petitioners have challenged the g.r. proceeding in case no. 123 of 1993 arising out of durgapur police station case no. 45 of 1993 dated 10th february, 1993 for offence under sections 446/379/435/506/114 of the indian penal code and also challenged order no. 12 dated 2nd march, 1995 passed by the s.d.j.m., durgapur in g.r. case no. 123 of 1993 by which the learned s.d.j.m. dismissed the application of the petitioners herein for dropping the proceeding against them. 2. the short background of the case is that one jagadish saluja was the owner of the property in question and from him one nagendra chandra chakraborty purchased the property by a registered deed on 14th july, 1975. one purushottam madhabji chouhan was a tenant in respect of the ground floor flat consisting of three rooms, one kitchen, two covered varandahs, one bathroom and common latrine under the said jagadish saluja and after purchase of that property by nagendra chandra chakraborty the said p.m. chouhan attorned his tenancy to the said nagendra chandra chakraborty. the said building is known as 'saraju bhavan' located at subhas pally under durgapur police station, burdwan. since such purchase by nagendra chandra chakraborty the petitioners were residing in that building.3. sometime in 1989 the said p.m. chouhan purchased a house in the neighbourhood and he started constructing the first floor of that building in the year 1990 which was completed in 1991 and the chouhan started shifting his households to the said building and they were not residing in 'saraju bhavan'.4. nagendra chandra chakraborty expired on 20th november, 1991 leaving his heirs and successors including the present petitioners who inherited the properties of nagendra chandra chakraborty including 'saraju bhavan'.5. it has been alleged that after the demise of nagendra chandra chakraborty, the said p.m. chouhan approached the widow of nagendra chandra chakraborty and expressed his desire to surrender his tenancy but demanded money as consideration for the same.6. on or about 15th december, 1991, the said p.m. chouhan had vacated the disputed flat by surrendering the tenancy in respect of the same and made over vacant possession of the flat to the petitioners. according to the petitioners the said p.m. chouhan did not pay any rent since november, 1991 because of such surrender.7. on entering the flat after taking possession the petitioners found that, the flat was in a badly damaged condition caused intentionally by the chouhan and his family members and the flat required thorough repairing, involving a large-sum of money.8. in january, 1992 the petitioners inducted one rabin nandy in the flat as a monthly tenant assuring him that the flat would be repaired. the said nandy paid rent to the petitioners.9. in spite of surrender of the said flat, p.m. chouhan and his sons often used to demand money from the mother of the petitioners for surrendering the flat and the mother of the petitioners did not yield to that.10. having failed in their attempt to extract money from the mother of the petitioners, they hatched up a plan to oust rabin nandy forcibly from the flat and thereby to dispossess the petitioners from that flat.11. to translate the plan into action the said p.m. chouhan filed a title suit no. 16 of 1993 against the petitioners in the court of 1st munsif, durgapur and obtained an ex parte order and thereafter with the help of the police the said chouhan and his sons evicted rabin nandy from the said flat on 10th february, 1993. thereafter the said p.m. chouhan and his sons lodged a criminal proceeding against the petitioners for offence under sections 448/429/435/506/114 of the indian penal code which was lodged by pankaj kumar chouhan son of p.m. chouhan and the same was registered as durgapur p.s. case no. 45 dated 10th february, 1993. rabin nandy was taken into the police custody on 10th february, 1993 but was granted bail on the next day. police also tried to arrest the petitioners,12. the petitioners obtained anticipatory bail and then surrendered before the court of the learned sub-divisional judicial magistrate, durgapur and obtained bail from that court.13. p. m. chouhan and his sons also lodged another complaint against the petitioners on 10th february, 1993 and a proceeding was started under section 107/116(3) of the code of criminal procedure being ner no. 47 of 1993 of durgapur police station. on 17th february, 1993 another son of p.m. chouhan, debendra kumar chouhan lodged another case against the petitioners and their sister manju chakraborty being c.r. no. 178 of 1993 for offence under sections 448/323/506/379 of the indian penal code.14. on 18th july, 1993, a charge-sheet was filed against the petitioners in p.s. case no. 45 of 1993 being g.r. case no. 123 of 1993 being charge-sheet no. 115 dated 18th july, 1993.15. the petitioners herein in order to recover has possession of the said flat and to protect their interest also filed a civil suit on 2nd august, 1993 before the court of the assistant district judge, durgapur against p. m. chouhan and his sons being title suit no. 38 of 1993.16. the petitioners moved this court under article 226 of the constitution praying for quashing the durgapur p.s. case no. 45 dated 10-2-93 upon which g. r. case no. 123 of 1993 was started before the court of the learned sub-divisional judicial magistrate, durgapur.17. the said application was heard by learned judge of this court on 3rd december, 1993 and the court in view of the pending civil cases between the writ petitioners and the chouhans over the self same property dismissed the petition but gave liberty to the petitioners to move the civil forum for the redress of their grievances and also to move appropriate criminal forum for that.18. thereafter the petitioners moved an application before the court of the learned s.d.j.m., durgapur on 22nd june, 1994 in g.r. case no. 123 of 1993 for dropping the proceeding.19. the learned sub-divisional judicial magistrate after hearing both the parties, rejected the petition of the petitioners.20. this given rise to the present petition for quashing the proceeding in g.r. case no. 123 of 1993 and also for stay of the said proceeding till the disposal of title suit no. 16 of 1993 pending before the court of the learned munsif, 1st court at durgapur and title suit no. 38 of 1993 pending before the court of the learned assistant district judge, durgapur.21. during the time of hearing the learned senior advocate for he petitioners mr. pradip kumar ghosh candidly submitted before this court that the proceeding cannot be quashed at this stage. i am also of the view that the proceeding cannot be quashed at this stage because the matter was moved in writ jurisdiction before this high court and that prayer was refused.22. mr. ghosh contended that if both the criminal proceedings in g. r. case no. 123 of 1993 and the civil cases being title suit no. 16 of 1993 and title suit no. 38 of 1993 are proceeded with simultaneously there may be embarrassment for the courts as the judgments may be at variance and that will put the parties in a difficult position. moreover, there will be every risk that the petitioners will be compelled to divulge their defence in criminal case which may affect their civil suits.23. mr. h. n. sahoo, appearing for added-opposite party no. 2, contended, on the other hand, that there cannot be any question of embarrassment as because one pertained to civil right of the petitioners and the private opposite-parties-defendants and another relates to criminality of the petitioners. so both the matters cannot be equatted.24. appearing for the state mr. samir chatterjee supported mr. sahoo.25. mr. ghosh relied upon some decisions, to wit jay narayan misra v. the state reported in 1966 cri lj 207 (cal) m.s. sheriff v. state of madras reported in : [1954]1scr1144 , ashok kr. jaiswal v. the state reported in (1989) 1 cal 458 of calcutta high court, state of rajasthan v. kalyan sundaram cement industries ltd. reported in : [1996]2scr463 , superintendent and remembrancer of legal affairs, west bengal v. birendra chandra chakravarty reported in : 1974crilj341 and also the case of karamchand ganga pershad v. union of india reported in : 1971crilj1072 .26. in karamchand ganga pershad's case (supra) the supreme court had held that a decision of civil courts are binding on criminal courts and the converse is not true. so this is not a case on the point at issue.27. in the case of superintendent and remembrancer of legal affairs case 1974 cri lj 341 (supra) the supreme court has held that where there was long and intimate relation between the accused and the complainant and (here were numerous transactions between them it would be difficult to determine the extent to which the complainant was duped or persuaded by misrepresentation to part with rights in certain properties alleged to be the subject-matter of breach of trust. it was a dispute of an essentially civil nature to be decided between the parties before any question of criminal liability could be adjudicated upon.28. in my view this decision is also of little help on the point at issue. an ex parte order has been passed against the petitioners herein and at least the civil aspect of the matter has already been decided. that this was not the position in the case under reference.29. a single bench of this high court in the case of ashok kr. jaiswal 1989 (1) cal hn 458 (supra) held that it is by no means correct to say that any general proposition was laid down in m.s. sheriffs case 1954 cri lj 1019 relied upon by the learned magistrate that the civil suit should make way for the criminal case and this question can only be decided on the facts and circumstances of a given case. a criminal case cannot be stayed pending disposal of a civil suit on the ground that the civil action had followed the criminal case, cannot be sustained because of repeated pronouncements that no hard and fast rule could be laid down in the matter. so this case is no proposition regarding the principle as to which case civil or criminal will make way for the other. all depends upon the facts of each case. so this is also not a proposition for the points that has been raised here.30. in m.s. sheriffs case 1954 cri lj 1019 the apex court has held that as between the civil and the criminal proceedings the criminal matters should be given precedence. no hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration.31. in the case of state of rajasthan : [1996]2scr463 (supra) the supreme court has held, inter alia, it is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. the criminal court would deal with the offence punishable under the act. on the other hand, the courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of their power.32. in jai narayan misra's case 1966 cri lj 207 (supra) the calcutta high court has held on considering that the criminal proceedings which were split up into as many as 12 cases, were proceeding in a leisurely fashion and were yet at initial stage, without charge having been framed in any one of them, it was proper that civil suit should be given precedence over the trial of the criminal cases for the protracted trial of criminal cases was likely to put the petitioner into great difficulties in subsequently contesting the civil suit. their lordships in that decision distinguished the case of m.s. sheriffs 1954 cri lj 1019 (supra). other two cases referred to by mr. ghosh are besides the point.33. so from the decisions referred to above it appears that the principle that has been laid down is that each case will depend upon the facts of that case. in the instant case a civil proceeding has already been ended and thereafter on the basis of the said ex parte decree the petitioners and their tenant rabin nandy have already been evicted from the suit premises. thereafter the criminal proceedings have started including the present one and then the suit has been filed by the petitioners herein. in the instant criminal proceeding charge-sheet has already been filed.34. the de facto complainants in different proceedings filed fir in the period in between 10th february, 1993 to 17th august, 1993. the petitioners filed the title suit no. 38 of 1993 on 2nd august, 1993. so durgapur p.s. case no. 45 of 1993 was earlier in point of time upon which r case no. 123 of 93 was started before the court of the learned sdjm and in that case charge-sheet has already been submitted on 22nd june, 1994.35. supreme court in the case of state of rajasthan : [1996]2scr463 (supra) has held that pendency of criminal proceedings on the same matter on which there is a civil suit, very rarely criminal matters are stayed and that is also only under compelling circumstances. here no compelling circumstances have been pointed out rather as the decree in a civil suit, though ex parte, staring at the face it cannot be said that criminal case should be stayed to avoid embarrassment of the court inasmuch as the court has already pronounced its judgment, though ex parte. moreover, this will not cause any prejudice because of delay. article 21 of the constitution envisages speedy disposal of criminal cases but there is no such provision in the constitution for speedy disposal of the civil cases. for the speedy disposal of the civil cases the petitioners can seek their redress in the court. the criminal case in the proceeding in g.r. case no. 123 of 1993 relates to an offence of criminal trespass, theft, mischief and abatement and the civil matter pertains to the question of surrender. so both the matters cannot be equated.36. so, here, on the facts and circumstances of this case i am of the view that the criminal proceeding should not be stayed to make a way for the civil cases. the revisional application is, accordingly, dismissed.37. there will be no order as to costs.

Judgment:
ORDER

N.K. Bhattacharyya, J.

1. By this instant revisional application under Sections 397, 401 and 482 of the Code of Criminal Procedure, 1973, the two petitioners have challenged the G.R. proceeding in Case No. 123 of 1993 arising out of Durgapur Police Station Case No. 45 of 1993 dated 10th February, 1993 for offence under Sections 446/379/435/506/114 of the Indian Penal Code and also challenged Order No. 12 dated 2nd March, 1995 passed by the S.D.J.M., Durgapur in G.R. Case No. 123 of 1993 by which the learned S.D.J.M. dismissed the application of the petitioners herein for dropping the proceeding against them.

2. The short background of the case is that one Jagadish Saluja was the owner of the property in question and from him one Nagendra Chandra Chakraborty purchased the property by a registered deed on 14th July, 1975. One Purushottam Madhabji Chouhan was a tenant in respect of the ground floor flat consisting of three rooms, one kitchen, two covered varandahs, one bathroom and common latrine under the said Jagadish Saluja and after purchase of that property by Nagendra Chandra Chakraborty the said P.M. Chouhan attorned his tenancy to the said Nagendra Chandra Chakraborty. The said building is known as 'Saraju Bhavan' located at Subhas Pally under Durgapur Police Station, Burdwan. Since such purchase by Nagendra Chandra Chakraborty the petitioners were residing in that building.

3. Sometime in 1989 the said P.M. Chouhan purchased a house in the neighbourhood and he started constructing the first floor of that building in the year 1990 which was completed in 1991 and the Chouhan started shifting his households to the said building and they were not residing in 'Saraju Bhavan'.

4. Nagendra Chandra Chakraborty expired on 20th November, 1991 leaving his heirs and successors including the present petitioners who inherited the properties of Nagendra Chandra Chakraborty including 'Saraju Bhavan'.

5. It has been alleged that after the demise of Nagendra Chandra Chakraborty, the said P.M. Chouhan approached the widow of Nagendra Chandra Chakraborty and expressed his desire to surrender his tenancy but demanded money as consideration for the same.

6. On or about 15th December, 1991, the said P.M. Chouhan had vacated the disputed flat by surrendering the tenancy in respect of the same and made over vacant possession of the flat to the petitioners. According to the petitioners the said P.M. Chouhan did not pay any rent since November, 1991 because of such surrender.

7. On entering the flat after taking possession the petitioners found that, the flat was in a badly damaged condition caused intentionally by the Chouhan and his family members and the flat required thorough repairing, involving a large-sum of money.

8. In January, 1992 the petitioners inducted one Rabin Nandy in the flat as a monthly tenant assuring him that the flat would be repaired. The said Nandy paid rent to the petitioners.

9. In spite of surrender of the said flat, P.M. Chouhan and his sons often used to demand money from the mother of the petitioners for surrendering the flat and the mother of the petitioners did not yield to that.

10. Having failed in their attempt to extract money from the mother of the petitioners, they hatched up a plan to oust Rabin Nandy forcibly from the flat and thereby to dispossess the petitioners from that flat.

11. To translate the plan into action the said P.M. Chouhan filed a title suit No. 16 of 1993 against the petitioners in the Court of 1st Munsif, Durgapur and obtained an ex parte order and thereafter with the help of the police the said Chouhan and his sons evicted Rabin Nandy from the said flat on 10th February, 1993. Thereafter the said P.M. Chouhan and his sons lodged a criminal proceeding against the petitioners for offence under Sections 448/429/435/506/114 of the Indian Penal Code which was lodged by Pankaj Kumar Chouhan son of P.M. Chouhan and the same was registered as Durgapur P.S. Case No. 45 dated 10th February, 1993. Rabin Nandy was taken into the police custody on 10th February, 1993 but was granted bail on the next day. Police also tried to arrest the petitioners,

12. The petitioners obtained anticipatory bail and then surrendered before the Court of the learned Sub-Divisional Judicial Magistrate, Durgapur and obtained bail from that Court.

13. P. M. Chouhan and his sons also lodged another complaint against the petitioners on 10th February, 1993 and a proceeding was started under Section 107/116(3) of the Code of Criminal Procedure being NER No. 47 of 1993 of Durgapur Police Station. On 17th February, 1993 another son of P.M. Chouhan, Debendra Kumar Chouhan lodged another case against the petitioners and their sister Manju Chakraborty being C.R. No. 178 of 1993 for offence under Sections 448/323/506/379 of the Indian Penal Code.

14. On 18th July, 1993, a charge-sheet was filed against the petitioners in P.S. Case No. 45 of 1993 being G.R. Case No. 123 of 1993 being charge-sheet No. 115 dated 18th July, 1993.

15. The petitioners herein in order to recover has possession of the said flat and to protect their interest also filed a Civil Suit on 2nd August, 1993 before the Court of the Assistant District Judge, Durgapur against P. M. Chouhan and his sons being Title Suit No. 38 of 1993.

16. The petitioners moved this Court under Article 226 of the Constitution praying for quashing the Durgapur P.S. Case No. 45 dated 10-2-93 upon which G. R. Case No. 123 of 1993 was started before the Court of the learned Sub-Divisional Judicial Magistrate, Durgapur.

17. The said application was heard by learned Judge of this Court on 3rd December, 1993 and the Court in view of the pending Civil Cases between the writ petitioners and the Chouhans over the self same property dismissed the petition but gave liberty to the petitioners to move the civil forum for the redress of their grievances and also to move appropriate Criminal forum for that.

18. Thereafter the petitioners moved an application before the Court of the learned S.D.J.M., Durgapur on 22nd June, 1994 in G.R. Case No. 123 of 1993 for dropping the proceeding.

19. The learned Sub-Divisional Judicial Magistrate after hearing both the parties, rejected the petition of the petitioners.

20. This given rise to the present petition for quashing the proceeding in G.R. Case No. 123 of 1993 and also for stay of the said proceeding till the disposal of Title Suit No. 16 of 1993 pending before the Court of the learned Munsif, 1st Court at Durgapur and Title Suit No. 38 of 1993 pending before the Court of the learned Assistant District Judge, Durgapur.

21. During the time of hearing the learned Senior Advocate for he petitioners Mr. Pradip Kumar Ghosh candidly submitted before this Court that the proceeding cannot be quashed at this stage. I am also of the view that the proceeding cannot be quashed at this stage because the matter was moved in writ jurisdiction before this High Court and that prayer was refused.

22. Mr. Ghosh contended that if both the Criminal proceedings in G. R. Case No. 123 of 1993 and the Civil Cases being Title Suit No. 16 of 1993 and Title Suit No. 38 of 1993 are proceeded with simultaneously there may be embarrassment for the Courts as the judgments may be at variance and that will put the parties in a difficult position. Moreover, there will be every risk that the petitioners will be compelled to divulge their defence in criminal case which may affect their civil suits.

23. Mr. H. N. Sahoo, appearing for added-opposite party No. 2, contended, on the other hand, that there cannot be any question of embarrassment as because one pertained to civil right of the petitioners and the private opposite-parties-defendants and another relates to criminality of the petitioners. So both the matters cannot be equatted.

24. Appearing for the State Mr. Samir Chatterjee supported Mr. Sahoo.

25. Mr. Ghosh relied upon some decisions, to wit Jay Narayan Misra v. The State reported in 1966 Cri LJ 207 (Cal) M.S. Sheriff v. State of Madras reported in : [1954]1SCR1144 , Ashok Kr. Jaiswal v. The State reported in (1989) 1 Cal 458 of Calcutta High Court, State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. reported in : [1996]2SCR463 , Superintendent and Remembrancer of Legal Affairs, West Bengal v. Birendra Chandra Chakravarty reported in : 1974CriLJ341 and also the case of Karamchand Ganga Pershad v. Union of India reported in : 1971CriLJ1072 .

26. In Karamchand Ganga Pershad's Case (supra) the Supreme Court had held that a decision of Civil Courts are binding on criminal Courts and the converse is not true. So this is not a case on the point at issue.

27. In the case of Superintendent and Remembrancer of Legal Affairs Case 1974 Cri LJ 341 (supra) the Supreme Court has held that where there was long and intimate relation between the accused and the complainant and (here were numerous transactions between them it would be difficult to determine the extent to which the complainant was duped or persuaded by misrepresentation to part with rights in certain properties alleged to be the subject-matter of breach of trust. It was a dispute of an essentially civil nature to be decided between the parties before any question of criminal liability could be adjudicated upon.

28. In my view this decision is also of little help on the point at issue. An ex parte order has been passed against the petitioners herein and at least the civil aspect of the matter has already been decided. That this was not the position in the case under reference.

29. A single bench of this High Court in the case of Ashok Kr. Jaiswal 1989 (1) Cal HN 458 (supra) held that it is by no means correct to say that any general proposition was laid down in M.S. Sheriffs case 1954 Cri LJ 1019 relied upon by the learned Magistrate that the civil suit should make way for the criminal case and this question can only be decided on the facts and circumstances of a given case. A criminal case cannot be stayed pending disposal of a civil suit on the ground that the civil action had followed the criminal case, cannot be sustained because of repeated pronouncements that no hard and fast rule could be laid down in the matter. So this case is no proposition regarding the principle as to which case civil or criminal will make way for the other. All depends upon the facts of each case. So this is also not a proposition for the points that has been raised here.

30. In M.S. Sheriffs case 1954 Cri LJ 1019 the Apex Court has held that as between the civil and the criminal proceedings the criminal matters should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal Courts is not a relevant consideration.

31. In the case of State of Rajasthan : [1996]2SCR463 (supra) the Supreme Court has held, inter alia, it is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal Court would deal with the offence punishable under the Act. On the other hand, the Courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of their power.

32. In Jai Narayan Misra's case 1966 Cri LJ 207 (supra) the Calcutta High Court has held on considering that the criminal proceedings which were split up into as many as 12 cases, were proceeding in a leisurely fashion and were yet at initial stage, without charge having been framed in any one of them, it was proper that civil suit should be given precedence over the trial of the criminal cases for the protracted trial of criminal cases was likely to put the petitioner into great difficulties in subsequently contesting the civil suit. Their Lordships in that decision distinguished the case of M.S. Sheriffs 1954 Cri LJ 1019 (supra). Other two cases referred to by Mr. Ghosh are besides the point.

33. So from the decisions referred to above it appears that the principle that has been laid down is that each case will depend upon the facts of that case. In the instant case a civil proceeding has already been ended and thereafter on the basis of the said ex parte decree the petitioners and their tenant Rabin Nandy have already been evicted from the suit premises. Thereafter the criminal proceedings have started including the present one and then the suit has been filed by the petitioners herein. In the instant criminal proceeding charge-sheet has already been filed.

34. The de facto complainants in different proceedings filed FIR in the period in between 10th February, 1993 to 17th August, 1993. The petitioners filed the Title Suit No. 38 of 1993 on 2nd August, 1993. So Durgapur P.S. Case No. 45 of 1993 was earlier in point of time upon which R Case No. 123 of 93 was started before the Court of the learned SDJM and in that case charge-sheet has already been submitted on 22nd June, 1994.

35. Supreme Court in the case of State of Rajasthan : [1996]2SCR463 (supra) has held that pendency of criminal proceedings on the same matter on which there is a civil suit, very rarely criminal matters are stayed and that is also only under compelling circumstances. Here no compelling circumstances have been pointed out rather as the decree in a civil suit, though ex parte, staring at the face it cannot be said that criminal case should be stayed to avoid embarrassment of the Court inasmuch as the Court has already pronounced its judgment, though ex parte. Moreover, this will not cause any prejudice because of delay. Article 21 of the Constitution envisages speedy disposal of criminal cases but there is no such provision in the Constitution for speedy disposal of the civil cases. For the speedy disposal of the civil cases the petitioners can seek their redress in the Court. The criminal case in the proceeding in G.R. Case No. 123 of 1993 relates to an offence of criminal trespass, theft, mischief and abatement and the civil matter pertains to the question of surrender. So both the matters cannot be equated.

36. So, here, on the facts and circumstances of this case I am of the view that the criminal proceeding should not be stayed to make a way for the civil cases. The revisional application is, accordingly, dismissed.

37. There will be no order as to costs.