Gujarat High Court
Babubhai Alias Tulsidas Narsinhdas ... vs Mukta Sagar Mandal And Ors. on 26 February, 1992
Equivalent citations: 1992CRILJ2103, (1992)1GLR777
ORDER J.N. Bhatt, J.
1. The petitioner has challenged the order passed by Metropolitan Magistrate (Court No. 15), Ahmedabad, on 30-6-1985 in a Criminal Case No. 3198 of 1982, by invoking the aids of the provisions of Section 397 read with Section 401 of the Code of the Criminal Procedure 1973 ('Code' for short hereinafter).
2. The facts giving rise to the present revision, may be stated, at this stage. The petitioner filed criminal case No. 3198 of 1983 in the Metropolitan Magistrate Court, Ahmedabad againstt the respondents Nos. 1 to 5 for the offences punishable under Section 42 of the Gujarat Ownership Flats Act, 1973. The trial Magistrate after taking cognizance issued notice to the respondents. The evidence of the complainant was also recorded by the Trial Magistrate. During the course of the recording of the evidence of the complainant, respondents Nos. 1 to 5, who are original accused persons in that criminal case submitted an application, dated 17/4/1984, requesting the criminal Court to stay the proceedings of the criminal case. They, inter alia, contended that the Civil Suit No. 2048 of 1983, pending before the Civil Court, involves identical questions and on that ground the respondents No. 1 to 5 requested the Trial Court to stay the criminal proceedings.
3. After hearing the parties Learned Trial Magistrate passed an order staying the further proceedings of the said Criminal Case No. 3198 of 1983, till the disposal of Regular Civil Suit No. 2048 of 1983 pending before the City Civil Court, Ahmedabad. This impugned order came to be passed, on 30/4/1984.
Being aggrieved by the said order the original complainant has come up now before this Court challenging its legality and validity. In the Criminal complaint by the petitioner-original complainant, it is alleged that the accused persons, who are respondents Nos. 1 to 5, have committed offences under Sections 4 and 5 of the Gujarat Ownership Flats Act, 1973, (Act for short). Section 4 of the Act reads as under :--
Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis shall, before he accept any sum of money as advance payment or deposit, which shall not be more than 20 percent of the sale price, enter into a written agreement for sale with each of such persons who are to take or who have taken such flats, and the agreement shall be registered under the Registration Act, 1908 and such agreement shall contain the prescribed particulars; and to such agreement there shall be attached such documents or copies thereof, in respect of such matters, as may be prescribed."
Section 5 of the Act reads as under:
The promoter shall maintain a separate account in any bank of sums taken by him, from persons intending to take or who have taken flats, as advance or deposit including any sums so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings (including ground rent, if any municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any), and he shall hold the said money for the purposes for which they were given and shall disburse the moneys for those purposes, and shall on demand in writing by an officer appointed by general or special order by the State Government for the purpose, make full and true disclosure of all transactions in respect of that account."
5. The provision of Section 42 of the Act provides penalty for the breach of the provisions of Sections 4 and 5 of the Act.
6. The Civil Suit No. 2048 of 1983 pending in the City Civil Court, Ahmedabad, is filed by the original complainant-petitioner herein for injunction, specific performance of the contract for obtaining two flats and also for the damages. The Learned Trial Magistrate reached to the conclusion after considering the relief claimed in the Paragraph 10 of the said Civil Suit and the allegations of the offences under Sections 4 and 5, punishable under Section 42 of the Gujarat Ownership Flats Act, 1973, that the disputed facts and circumstances involved in both the parallel proceedings are very much identical and therefore criminal case was ordered to be stayed until disposal of the said Civil Suit.
7. The first question which is required to be examined is as to whether the impugned order passed by the Learned Magistrate staying the criminal proceedings till the disposal of the civil suit can be said to be an interlocutory order or Not? The Learned Magistrate has not decided any disputed point involved in the Criminal Case nor he has decided any right or liability of the parties. What the learned Magistrate has done is to stay the criminal case until the disposal of the civil suit. The impugned order does not affect in any way the rights or liabilities of the parties. Therefore, in the opinion of this Court the impugned order is purely interlocutory order. The plain perusal of the provisions of Section 397(2) of the Code, would, undoubtedly, go to show that it prohibits exercise of revision of interlocutory orders. Thus, revision under Section 397 of the Code in respect of interlocutory orders has been barred. The impugned order is purely an interlocutory order, as it does not decide or touch the rights or the liabilities of the parties. Since impugned order is pure and simple interlocutory one, the present revision under Section 397(2) is not maintainable.
8. However, learned counsel for the petitioner-original complainant, Mr. Soni, while appearing for Mr. Amin, has forcefully contended that even if an order is interlocutory order within the meaning of Section 397(2) of the Code, it may be quashed by this Court under its inherent jurisdiction under Section 482 of the Code. In view of the facts of the present case this submission also cannot be sustained. It is true that ordinarily when there being no specific provision in the Code, for redressal of grievances of an aggreived party, it will be open for this court to consider to exercise its inherent jurisdiction under Section 482, in a good case when manifest or grave injustice is successfully pointed out. Nothing in the Code, not even Section 397 can affect the amplitude of inherent power of this Court under Section 482 of the Code. It is in an exceptional case to redress the miscarriage of justice or patent illegality the Court would be compelled to exercise its inherent power under Section 482 of the Code. However, unfortunately, in the present case no material is, successfully, pointed out which would warrant the exercise of inherent powers of this Court under Section 482 of the Code.
9. The view of the learned trial Magistrate that both the proceedings criminal and civil are involving almost identical disputes between the parties cannot be said to be unjustified at this stage. This finding of fact needs no interference at this juncture. No doubt ordinarily when parallel, civil and criminal, proceedings are pending, criminal proceedings should proceed. However, which proceeding should be preferred in a given case will depend upon the facts of the each case. This Court has already given guidelines and principles in case of two parallel proceedings, so that trial court could determine as to what approach the court should adopt. Following guidelines enunciated by this Court earlier may be reiterated.
(i) As between a civil suit and a criminal proceeding, criminal matters require to be accorded precedence.
(ii) The possibility of conflicting decisions in the civil suit on the one hand and the criminal proceedings on the other, is not a relevant consideration, inasmuch as the decision of one Court is not binding on the other or even relevant except for certain limited purposes, such as sentence or damages.
(iii) The only relevant consideration is the likelihood of embarrassment to the accused person.
(iv) The Court faced with the question of stay of criminal case till the disposal of a civil suit must take into account the circumstances that a civil suit would drag on for a number of years and that it would be undesirable to stay a criminal case from two standpoints. Firstly, public policy and public interests demand that criminal justice should be swift and sure and 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 possible is consistent with a fair and impartial trial. Secondly, it is undesirable to let things slide till memories of witnesses have grown too dim to be trusted.
(v) No hard and fast rules can be laid down. And, notwithstanding the aforesaid considerations, there might be peculiar circumstances which might justify special considerations on the fact pattern of an individual case. For example the civil case might be well near its conclusion and it might be more expedient and just to stay the criminal case.
10. As observed by this Court earlier "Ordinarily there would be, a very few occasions on which a criminal Court would be justified in staying the criminal case. To stay a criminal case would be an exception rather than a rule. There may be cases involving the facts which would justify the staying of criminal proceedings and the ultimate anxiety in final analysis would be to see as to whether the accused person would be really embarrassed in his defence or not". In the present case the complainant has come up before this Court in the revision. It is not a case that accused persons do not want to continue civil proceedings so that they may not be exposed. Moreover, the parallel proceedings are pending since more than 8 years. Criminal case is stayed by order dated, 30-6-84. Civil Suit No. 2048 of 1983, pending in the court of city civil Court, Ahmedabad, is at a very advanced stage.
11. In absence of any manifest miscarriage of justice the petitioner cannot be allowed to over come the inhibition or prohibition contained in Section 397(2) of the Code by contending that powers under Section 482 should be exercised.
12. In view of the aforesaid facts and circumstances and the nature of parallel proceedings pending between the parties their appears to be no justifiable reason or any exceptional ground which would warrant the interference of this court in this revision even by exercising its inherent jurisdiction under Section 482 of the Code. Therefore, the contention raised on behalf of the present petitioner-original complainant that alternatively this Court should exercise its power under Section 482 of the Code is also found totally meritless.
13. In the facts and the circumstances of this case this revision petition is required to be dismissed. In the result the petition is dismissed. Rule discharged. Interim relief shall stand vacated.