Madras High Court
Venu Srinivasan vs Krishnamachari, Secretary Divya Desa ... on 3 October, 2005
Equivalent citations: (2005)4MLJ596
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT R. Balasubramanian, J.
Page 1440
1. Let us give hereunder the details of the proceedings listed before us:
The 9th respondent, 6th respondent, 10th respondent, 7th respondent and 8th respondent in W.P.No.13382/2005 are the appellants in the various writ appeals. In the writ petition, a learned Judge of this court passed a final order on 15.06.2005, having regard to the materials brought to his notice, directing the State Government (first respondent therein) to Page 1441 register the offence relating to destroying a Sivan Sannathi in Azhagiya Nambirayar Temple, Thirukurungudi, Nanguneri Taluk, Tirunelveli District against respondents 5 to 10; investigate the said offence against the said respondents and proceed in accordance with law, in order to prevent miscarriage of justice. In W.P. No. 23178/2004, the writ petitioner prayed for a mandamus directing respondents therein to re-install the idols of Siva, Murugan and Vinayagar in it's original place from where they were removed in Arulmighu Azhagiya Nambirayar Perumal Temple at Thirukurungudi, Tirunelveli District by considering the representation dated 30.07.2004. In W.P. No. 23193/2004, another person is before this court for a mandamus directing the respondents therein to restore the Sivan Temple just in front of Veetrindha Nambi Sannathi in Azhagiya Nambirayar Temple at Thirukurungudi, Nanguneri Taluk in Tirunelveli District. W.P. No. 704/2004 is by another individual seeking a mandamus to restore the Sivan Sannathi as prayed for in the earlier writ petition. In W.P. No. 1002/2004, the prayer is for a mandamus directing the Commissioner, H.R. & C.E to conduct an enquiry into the irregularities in the demolition and removal of Siva idol from Arulmughu Azhakiya Nambirayar Perumal Thirukovil, Tirukurungudi, in the light of the show cause notice dated 06.08.2004 mentioned therein. In W.P. No. 2246/2004, another individual is before this court seeking a mandamus directing respondents 1 to 7 therein to take appropriate action to re-install the idol of Lord Siva in accordance with Agama Sasthra in the same place from where it was removed in Arulmighu Azhagiya Nambirayar Perumal Temple at Thirukurungudi Village, Tirunelveli District. In W.P. No. 18450/2005, the writ petitioner, who is also the petitioner in one of the writ petitions, is before this court seeking a writ of certiorari to quash G.O.Ms. No. 55 TDC & RE Department dated 08.04.2005. There is a suit pending as O.S. No. 288/2004 on the file of the District Munsif, Nanguneri. That suit is for a declaration that the act of demolishing the shrine of Lord Siva in Azhagiya Nambirayar Temple at Thirukurungudi and constructing it to install the deity in a different place is bad in law and for a consequential direction to re-install the deity in the original place in Arulmighu Nambirayar Temple itself. That suit is still pending. Pending suit, the plaintiffs filed I.A. No. 194/2004 under order 39 Rule 1 of the Code of Civil Procedure and the defendants filed an application, which was yet to be numbered, questioning the jurisdiction of the court. The learned trial Judge granted an order on 06.08.2004 in I.A. No. 194/2004, which is in challenge before this court by the first defendant therein in C.R.P. No. 26/2004. The first defendant therein is once again before this court in C.R.P. No. 27/2004 challenging the order dated 06.08.2004 in the un-numbered interlocutory application. On 09.08.2004 in C.M.P. No. 80/2004 in C.R.P. No. 27/2004, a learned Judge of this court suspended the order dated 06.08.2004 in I.A. No. 194/2004. Pending W.P.Nos.23178/2004 and 23193/2004, interim orders were prayed for in W.P.M.P. No. 28044/2004 & 28065/2004. A learned Judge of this court by order dated 19.08.2004 passed an order in those W.P.M.Ps., having regard to the order passed by this court on 09.08.2004 in C.M.P. No. 80/2004 in C.R.P. No. 27/2004, that the petitioners in those two writ miscellaneous Page 1442 petitions must work out their rights only in the pending civil revision petition. This court is informed that when W.A. No. 1204/2005 was listed before the Hon'ble First Bench, as requested by the learned senior counsel appearing for the appellant in the appeal, the Hon'ble First Bench directed the grouping of all the above proceedings for disposal by a Bench of this court and accordingly all the cases are before us.
2. Mr. K. Parasaran learned senior counsel appearing for the writ appellant in W.A. No. 1204/2005 would submit that the writ petition itself came to be disposed of containing the directions as referred to above at the admission stage itself, after hearing the learned counsel for the writ petitioner and the learned Government Advocate appearing for respondents 1 to 4 therein. Such a direction given in the order passed at the time of admission itself is causing irreparable injury not only to his client but also to others who are similarly placed like the writ appellant. According to the learned senior counsel, since his client and others who have suffered the order were made as parties to the writ petition, had they been heard by the learned single Judge, then the learned Judge would not have passed the order in challenge. Learned senior counsel would contend that even assuming that the direction contained in the order in challenge can be sustained, even then he would be in a position to convince this court that on facts placed before court, no offence at all is made out. Learned senior counsel would then contend that, even assuming for a moment without conceding, that on the day when the idol of Lord Siva was shifted, an offence was committed, even then when the Government passed G.O.Ms. No. 55, it must be held that the act of shifting the idol stands ratified and therefore the impact of the Government Order to the given situation would lead this court to hold that no offence at all is committed even at the inception. Learned senior counsel would then submit that shifting of Lord Siva's shrine as well as Lord Siva from the old place to a new place is in accordance with Agama Sasthras and if it is so, then it must be necessarily held that such an act would not attract any offence at all either under Central Act 42/1991 or under the provisions of the Indian Penal Code. Learned senior counsel would then argue that since G.O.Ms. No. 55 is in challenge and the comprehensive suit in O.S. No. 288/2004 questioning the legality or otherwise of the shifting of the idol of Lord Siva from the Temple is pending before competent courts of law, investigation has to necessarily await the verdict in those proceedings and according to the learned senior counsel, it is not possible at this stage to say whether the verdict in both those proceedings or in any of those proceedings would have or would not have an impact on the investigation into the crime, which is alleged to have been committed.
3. Mr. S.Sampath Kumar, learned senior counsel appearing for the contesting respondents namely, the worshippers, would argue that shifting the idol of Lord Siva is without prior permission as contemplated under Rule 31 of the Management and Preservation of Properties of Religious Institutions Rules, hereinafter referred to as "the Rules", framed under Section 116 of the Tamil Nadu Hindu Religious & Charitable Endowments Act. Therefore on that short score, it can be easily held that shifting the idol of Lord Siva is bad in law. Learned senior counsel would then take us through the provisions of the Places of Worship (Special Provisions) Act, 1991, hereinafter referred to Page 1443 as Central Act 42/1991, to contend that under Section 3 of the Act, there is a total prohibition of conversion of places of worship. In this case, the Statutory bar created under that section stands violated in letter and spirit in shifting the idol of Lord Siva from the temple in question. Learned senior counsel would then contend that the ingredients of Sections 295 and 295-A of the Indian Penal Code are also attracted. Lastly, the learned senior counsel would submit that passing of G.O.Ms. No. 55 is an arbitrary exercise of power and therefore it is vitiated. Learned senior counsel would also contend that the members of the committee, whose advice the Government had taken in passing the Government Order, are not competent to give an opinion and therefore the Government Order based on irrelevant materials is bad in law. It is his further submission that due to non-application of mind also, the Government Order is liable to be quashed.
4. Mr. V. Prakash learned senior counsel appearing for the writ petitioner in W.P. No. 13382/2005 would contend that however high one may be, still he is under Law and therefore when the writ petitioner in that writ petition had given a complaint on 05.04.2005 bringing to the notice of the police that in shifting the idol of Lord Siva an offence is made out, it is the duty of the police to take that complaint on file; register it and then investigate it in accordance with law, which according to the learned senior counsel had not been done at all. Therefore the submission of the learned senior counsel is that, only in those circumstances, the complainant came before this court in W.P. No. 13382/2005, in which the relief in the nature of a direction as indicated earlier in this order had come to be granted. According to the learned senior counsel, there is no right of hearing provided in law to an accused the moment a crime is registered against him and his right to have a hearing accrues to him only on the filing of the final report. However he would add that it may be open to an accused to come before this court for quashing the proceedings even at a stage earlier to the filing of the final report, but it all depends upon the facts of each case. Learned senior counsel would then submit that, even assuming for a moment without conceding that the comprehensive suit touching upon the issue may be dismissed, yet that may not prevent investigation being done in this case if the materials do disclose an offence. The manner in which the shifting of idol had been done may be a relevant material to find out whether an offence under Sections 295 and 295-A of the Indian Penal Code are made out or not. Learned senior counsel even went to the extent of saying that if this court is of the opinion that the complaint dated 05.04.2005 do not disclose an offence, then this court can very well quash the said complaint itself. Mr. T.R. Rajagopalan learned senior counsel appearing for the revision petitioner would submit that for the present the revision petitioner may be permitted to shift the deity of Lord Siva from "Dhanyavasam" to the new temple already constructed where Kumbabishekam had to be performed and that if ultimately the suit is decreed, the idol will be brought back to the original place where it was before. Learned senior counsel would also submit that the District Munsif's Court has no jurisdiction. Mr. S. Sampath Kumar learned senior counsel, in answer to the submissions made by Mr. T.R. Rajagopalan learned senior counsel, would submit that pending disposal of the suit, the idol of Lord Siva may be brought back to it's original Page 1444 place where poojas would be performed as in the past and that if the suit is dismissed, his client himself would shift the idol and place it in the new temple constructed.
5. We carefully applied our mind to the various facts brought to our notice. There cannot be any dispute that the grievance of the parties to the various proceedings centres around the shifting of the idol of Lord Siva from it's shrine located in the temple precincts of Arulmigu Nambirayar Temple at Thirukurungudi to another place. The worshippers and persons having religious faith would state that such shifting is not only against Agama Sasthras but also in violation of Rule 31 of the above referred to Rules and Section 3 of Central Act 42/1991. It is also their case that offences under sections 295 and 295-A of the Indian Penal Code stand attracted. The Jeer of the temple would submit that such shifting is in accordance with Agama Sasthras. To have this dispute resolved, a representative suit had been filed before the District Munsif, Nanguneri and it is now pending as O.S. No. 288/2004. The relief prayed for in the suit is for a declaration that such shifting is illegal and for a consequential mandatory injunction directing re-installation of the deity in it's old place with all it's glory. To this suit, the Jeer, the Department of H.R & C.E and the State of Tamil Nadu represented by the District Collector, Tirunelveli are parties. In the said suit, the parties would have enough opportunities to let in evidence as to whether the act complained of is in accordance with Agama Sasthras or not. At the end of the trial, the learned trial Judge may, on the evidence made available to him, decide the case one way or the other. In our considered opinion, the judgment likely to be pronounced by the learned District Munsif, Nanguneri on the contentious issues cannot be said to be totally irrelevant to the investigation, if any, to be done pursuant to the order dated 15.06.2005 in W.P. No. 13382/2005. It is not anybody's case that pursuant to that order, the jurisdiction police station had registered any crime on the complaint dated 05.04.2005 given by the writ petitioner therein. In fact, that order of the learned single Judge remains stayed by order dated 24.06.2005 by the Hon'ble First Bench of this court. Therefore the position as on date is that the complaint dated 05.04.2005 continues to remain on the file of the Inspector of Police, Thirukurungudi Police station, Tirunelveli District. Inasmuch as the relief of mandatory injunction had been asked for in the pending suit for re-installation of the deity of Lord Siva in the old place itself, it is needless to state that the verdict of the civil court on that angle also has to be necessarily awaited. When parties have gone before a competent civil court for an appropriate relief, in our considered opinion, the writ jurisdiction of this court need not be invoked for the issue of a mandamus to re-install the idols of Lord Siva, Murugan and Vinayagar in the original place. When the issue namely, whether the shifting of the idol to it's original place itself is in violation of any known religious principle and if so, whether a mandatory injunction for reinstallation can be granted, is to be tested on evidence in the pending suit, we have no doubt at all that this court would not exercise the writ jurisdiction to give a mandamus for the same relief. It would not be safe also to do so. Under these circumstances, the relief prayed for in W.P.Nos.23178/2004, 23193/2004 and 704/2004 appear to be misconceived. In other words, in all Page 1445 the above three writ petitions, a mandamus simplicitor is asked for to reintall the removed idols to it's original place. Accordingly, on the ground that a competent civil court is seizin of the issue namely, whether the removed idols should be reinstalled in it's original place or not, these writ petitions are dismissed as unnecessary. In W.P. No. 1002/2004, the relief asked for is for a mandamus to conduct an enquiry into the irregularities in the demolition and removal of the Lord Siva idol from the temple referred to earlier, in the light of the show cause notice dated 06.08.2004. Whether there is an irregularity or not in removing the idol from the old place to the new place is the issue in the suit namely, O.S. No. 288/2004 on the file of the District Munsif, Nanguneri and therefore allowing the civil court to decide, this writ petition also stands dismissed solely on that ground. Depending upon the outcome in O.s. No. 288/2004, there would be time enough for the writ petitioner in this writ petition to seek any appropriate relief. In W.P. No. 2246/2004, the relief prayed for is for a mandamus directing reinstallation of the idol of Lord Siva in it's original place and for a direction to the Commissioner, H.R. & C.E to proceed against the Jeer in accordance with the show cause notice dated 06.08.2004. As already stated, whether the idols removed should be reinstalled in the original place or not is the issue in the suit referred to above. If the civil court decides that it is illegal, then all further proceedings pursuant to the show cause notice dated 06.08.2004 can go on. Therefore we are of the opinion that the writ petition can be disposed of directing the writ petitioner to await the disposal of O.S. No. 288/2004 on the file of the District Munsif, Nanguneri and accordingly it stands disposed of. The last of the writ petition is W.P. No. 18450/2005. The writ petitioner in that writ petition challenges the validity of G.O.Ms. No. 55 TDC RE Department dated 08.04.2005. Under this Government Order, the Government ratified the action of the temple authorities in shifting the shrine of Lord Siva from Arulmigu Nambirayar Temple at Thirukurungudi to a new shrine. This ratification is stated to be under Rule 52 of the Management and Preservation of Properties of Religious Institutions Rules framed under Section 116 of the Hindu Religious and Charitable Endowments Act. Of course, as rightly contended by the plaintiffs in the suit, the validity of the above referred to Government Order cannot be challenged in that suit. In our considered opinion, the decision in the pending suit may have a bearing on the validity of the Government Order challenged in this writ petition. In other words, if the civil court, on evidence, holds that shifting the idol of Lord Siva from it's original place to the new place is not in violation of either Agama Sasthras or any known religious principle or faith, then it cannot be said that such a finding may have no bearing at all in deciding the validity of the Government Order. Therefore, we are not taking up W.P. No. 18450/2005 for disposal and instead, direct the Registry to post it before court after O.S. No. 288/2004 pending on the file of the learned District Munsif, Nanguneri is disposed of.
6. This takes us to C.R.P.Nos.26/2004 and 27/2004. Having regard to the totality of the materials available on record, we are inclined to dispose of both the revisions as hereunder:
The order challenged in C.R.P. No. 26/2004 is sustained, having regard to the following facts:
Page 1446 It is seen that subsequent to 05.08.2004, construction of the new temple had almost been completed. There was an undertaking before the trial court in that suit given on 05.08.2004 by the first defendant therein that till 06.08.2004 no further construction activities would be taken up. On that basis, the earlier order granting "status quo" was vacated. It appears from the records that the earlier order of status quo was contested by the first defendant on the subsequent hearing namely, on 06.08.2004 and that the first defendant therein was not inclined to continue his undertaking any more. The order impugned in C.R.P. No. 27/2004 shows that construction in the new place had almost come to an end. Thus, on 06.08.2004 the learned trial Judge did not choose to vacate the earlier order of status quo. The fact also remains that the said order dated 06.08.2004 remains suspended by a learned single Judge of this court by order dated 09.08.2004. The idol of Lord Siva is in "Dhanyavasam". Having regard to the totality of the materials available, we are not inclined to interfere with the order challenged in C.R.P. No. 26/2004 and accordingly it stands dismissed with no order as to costs. We are not permitting, for the time being, the revision petitioner to shift the idol of Lord Siva from "Dhanyavasam" to the newly constructed temple and perform Kumbabishekam. Likewise, we are also not permitting the plaintiffs in that suit to have the idol back to it's original place. Let "Lord" remain in peace. As far as the order challenged in C.R.P. No. 27/2004 is concerned, since the learned trial Judge himself has reserved the issue as to whether it has jurisdiction or not to be decided later, we dispose of this revision permitting the learned District Munsif to decide the issue on merits. However, having regard to the issue involved in the court below and the importance of an early decision, we direct the learned District Munsif to dispose of the suit in accordance with law in any event not later than 31.12.2005 and send a compliance report about the same to this court. It is open to the parties to the suit to let in evidence as they deem fit. Since the suit is filed in a representative capacity under Order 1 Rule 8 of the Code of Civil Procedure, it is needless to state that any person in whose behalf or for whose benefit the suit is instituted or defended may apply to the court to be made as a party to the court (See Order 1 Rule 8(3) of the CPC). Under these circumstances, if any person comes before the court with an application under Order 1 Rule 8(3) of the Code to get himself impleaded, the learned trial Judge is directed to take up that application also and dispose of the same in accordance with law within 15 days from the date of receipt of such application.
7. As noted earlier, all these writ appeals are directed against the final order dated 15.06.2005 in W.P. No. 13382/2005 directing the State to have the complaint registered and investigated. The complaint is referable to the complaint dated 05.04.2005. We perused that complaint. Shifting the idol, according to the materials on record, was on 01.06.2004. The offence complained of centres around shifting of the idol of Lord Siva from it's original shrine located within the temple precincts of Azhagiya Nambirayar Temple to a new place. According to the complaint, without prior approval (See Rule 31 of the Management and Preservation of Properties of Religious Institutions Rules), the idol had been shifted, such shifting also violates Section 3 of Page 1447 Central Act 42/1991 and is also an offence under the Indian Penal Code (obviously referring to Sections 295 and 295-A of the IPC). In this context, we just recollect the arguments advanced by Mr. K. Parasaran learned senior counsel, who contended that on the facts made available, no offence at all is made out. According to him, the written permission contemplated either under Rule 31 or under Rule 52 of the Management and Preservation of Properties of Religious Institutions Rules do not necessarily mean prior written permission. A reading of those Rules do not exclude written permission being given subsequent to the Act. If that is so, then the Government Order issued in this case and challenged in one of the writ petitions referred to earlier would validate the act of removal. Therefore prima facie, neither Rule 31 nor Rule 52 of the above referred to Rules would stand violated. It is his further submission that even assuming that the Government Order challenged in one of the writ petitions is quashed since the said Government Order had already validated the act complained of, the subsequent quashing of the Government Order would not revive the act complained of to be treated as an offence. It is also his further submission that to attract Section 295 of the Indian Penal Code, the act must be done with an intention to insult the religion, etc... or with the knowledge that the act complained of is likely to be considered as an insult to the religion. According to the learned senior counsel, to attract Section 295-A of the Indian Penal Code, the act complained of should be shown to have been done with a deliberate and malicious intention of outraging the religious feelings of any class, etc.... Therefore learned senior counsel would submit that if in the pending suit a decision is given against the plaintiffs therein, then it is open to his client to contend that the ingredients of Section 295 & 295-A of the Indian Penal Code are not attracted. Even otherwise, the learned senior counsel would contend that the ingredients of Sections 295 and 295-A are not attracted at all. As far as violation of the Statutory bar contained under Section 3 of Central Act 42/1991, learned senior counsel would refer to Section 7 of the said Act, which declares that the said Act has an overriding effect on other enactments. In other words, according to the learned senior counsel, Central Act 42/1991 has an overriding effect only over other enactments. Whether Central Act 42/1991 would have an overriding effect on the age old religious customs, faith, principle or Agama Sasthras, is a question still open to be argued. Since we have come to the prima facie conclusion that the suit must be allowed to be disposed of first, we informed Mr. K. Parasaran, learned senior counsel that we will reserve all the points raised by him in contending that no offence at all is made out to be raised later in point of time, if a need for the same arises after the disposal of the suit and the learned senior counsel fairly agreed for such a course. At the risk of repetition, we state that the decision in the pending suit is likely to give an answer to various legal issues involved in the other proceedings. If the trial court dismisses the suit on merits, the question that would follow is, would the offences complained of still survive or not? Again the question whether the offence would still survive or not would have to await the decision of this court in W.P. No. 18450/2005 where G.O.Ms. No. 55 dated 08.04.2005 is in challenge.
8. We are fully aware that the court seldom interferes with the investigation of a crime lawfully registered. In this case, as noted earlier, crime is yet to be Page 1448 registered. Even when a crime is registered and if prima facie materials are found to entertain a petition to quash, even then courts have always allowed the investigation to go on with a restraint to file the final report alone until further orders. We had this in our mind in deciding as to what relief we should grant in these batch of writ appeals. Having regard to the complex nature of the issue involved in the suit and the pendency of the writ petition challenging the validity of the Government Order, we are of the considered opinion that if the investigation is allowed to go on as things stand today, it may not proceed on the right direction and that the persons, against whom the crime is directed to be registered, would also be considerably prejudiced and exposed to embarrassment. As to what are the powers of the court in a given situation like this, we refer to a few case laws available on the subject. In (M.S. Sheriff v. State of Madras), a Constitution Bench of the Supreme Court was dealing with a question as to whether an appeal would lie to it from the order of a Division Bench of the High Court under Section 476-B of the Code of Criminal Procedure, 1898. The court was also considering in that case the question as to whether between the civil and criminal proceedings, which should be given the precedence? In that case there are two sets of proceedings arising on the same facts pending against the appellants in that appeal. The first set of proceeding consisted of two civil suits for damages for wrongful confinement and the other set consisted of two criminal prosecutions under Section 344 I.P.C for wrongful confinement. In each proceeding, one Sub-Inspector of Police was the opposite party. It was contended before the Supreme Court that simultaneous prosecution of both the sets of cases will embarrass the accused. In that context, the Supreme Court had expressed it's views as hereunder:
"15. 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."
"16. 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 interests demand 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."
The Supreme Court then went on to hold as hereunder:
"This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more Page 1449 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 Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.
The above extracted paragraphs have been incorporated in the latter judgment of the Supreme Court in the case reported in 2001 Crl.L.J.Pg.4733 (Kamaladevi Agarwal v. State of West Bengal & Ors.). In (Karamchand Ganga Prasad v. Union of India) the Supreme Court had held as hereunder:
"It is a well established principle of law that decisions of the civil courts are binding on the criminal courts. The converse is not true."
In (M. Krishnan v. Vijay Singh), the legality of quashing a criminal complaint on the ground of pendency of a civil proceeding came up for consideration before the Supreme Court at the instance of the complainant. In that case, the High Court, in quashing the complaint, appears to be of the opinion that as the dispute was primarily of a civil nature, the complainant was not justified in resorting to the criminal proceedings. In that context, the Supreme Court had held as follows:
"5. Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of."
Page 1450 In the case on hand, there is no dispute that long prior to the complaint dated 05.04.2005, a representative suit was filed before the civil court by some worshippers and this is not the case where any of the accused, with a view to thwart the criminal proceeding, had rushed to the civil court. Therefore from the above case laws, it is clear that the court has the power to decide in a given case as to which among the two cases namely, civil and criminal cases, must get the precedence? Normally, the precedence must be for an early disposal of the criminal cases. Judicial discretion based on sound principles should be exercised if civil proceedings are directed to have precedence over the criminal proceedings. Exercise of power by the court in this context would depend upon the facts available in each case and therefore there cannot be any hard and fast rule on this point.
9. Having regard to the above principles in our mind; in the light of our discussions in paragraphs 7 and 8 and the case laws noted therein, we reflect our mind as hereunder:
For a moment, we are not taking into account the status of any individual against whom a crime is directed to be registered. We are having the larger interest of everyone in our mind in deciding this ticklish question at this stage. At this stage it is not possible to say that the judgment of the civil court may or may not have a bearing on the investigation to be done. But none-the-less, if the civil court's verdict is also made available, then it will be open to the Investigating Officer to apply his mind to the judgment and proceed with the investigation in an appropriate manner. Likewise, the impact of the validity or otherwise of the Government Order also may not be totally lost sight of by the Investigating Officer. We may say here even at this stage that we are not foreclosing the investigation for ever to come, nor are we quashing the criminal proceedings. If anybody had committed a crime, then however high he may be, still he is under "Law". The order passed by the learned single Judge is apparently on the basis of the Government counsel's concession that the act complained of is illegal. Two months earlier, G.O. Ms. No. 55 dated 8.4.2005 was passed. W.P. No. 18450 of 2005 is against that G.O. It is not clear from the order whether the issuance of this G.O. or the pendency of the suit was brought to the notice of the learned single Judge. In the light of what we have stated above and having regard to the scope of the pending suit and the nature of offence stated to have been committed, we are of the considered opinion that the pending suit should have precedence to the criminal proceeding which is yet to be registered as a crime and if such a course is not allowed to be done, then there would be considerable uncalled for embarrassment to all the persons against whom the crime is directed to be registered. Therefore with a view to do complete justice between all the parties concerned, we are inclined to dispose of the writ appeals on the following lines:
"The impugned order in all the writ appeals is set aside. The complaint dated 05.04.2005 given by the writ petitioner in W.P. No. 13382/2005 shall continue to be on the file of the Inspector of Police, Thirukurungudi Police Station. Depending upon the decision in O.S. No. 288/2004 and Page 1451 W.P. No. 18450/2005 , it is open to the party complaining the offence to come before this court in a separate proceeding for any appropriate relief. Likewise, we also leave all the points raised by Mr. K. Parasaran learned senior counsel appearing for the writ appellant in W.A. No. 1204/2005, that on the facts placed no offence is made out, undecided and reserve the liberty of everyone of the appellants to defend their cause in a manner known to law, if the crime complained against them is set down for investigation. It is also open to the Investigating Officer/Inspector of Police, Thirukurungudi to come before this court either in writ jurisdiction or criminal appellate jurisdiction to get any appropriate directions or reliefs, after disposal of O.S. No. 288/2004 on the file of the learned District Munsif, Nanguneri and W.P. No. 18450/2005 on the file of this court."
Connected W.A.M.P.Nos. 2389, 2206, 2390, 2207, 2391, 2208, 2326/2005; W.P.M.P.Nos.28044/04, 28065/04, 4986/05, 983/04, 690/04, 20031/05, 29899/05 and C.M.P.Nos. 80/04 and 249/04 are closed.