Punjab-Haryana High Court
Date Of Decision: 10.3.2009 vs State Of Punjab And Another on 10 March, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Misc. No. M-4478 of 2009 1
In the High Court of Punjab and Haryana, at Chandigarh.
1. Criminal Misc. No. M-4478 of 2009
Date of Decision: 10.3.2009
Darbara Singh
...Petitioner
Versus
State of Punjab and Another
...Respondents
AND
2. Criminal Misc. No. M-5103 of 2009
Arun Kumar Sharma and Others
...Petitioners
Versus
State of Punjab and Another
...Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Satinder Khanna, Advocate
for the petitioner (In Criminal Misc.
No. M-4478 of 2009).
Mr. Sandeep S. Majitha, Advocate
for the petitioners (In Criminal Misc.
No. M-5103 of 2009).
Mr.Mehardeep Singh, Assistant Advocate
General, Punjab, for respondent No.1-State.
Mr. Narinde Lucky, Advocate
for respondent No.2.
Kanwaljit Singh Ahluwalia, J. (Oral)
By this common order, two petitions i.e. Criminal Misc. No. M- Criminal Misc. No. M-4478 of 2009 2 4478 of 2009 titled as " Darbara Singh v. State of Punjab & Others" and Criminal Misc. No. M-5103 of 2009 titled as "Arun Kumar Sharma & Others v. State of Punjab & Another" will be decided together.
It is stated before me that one Shiv Singh was owner in possession of House No. 12, Old Jawahar Nagar, Jalandhar. Shiv Singh was residing in United Kingdom. Petitioner Darbara Singh is son of Shiv Singh. Raghbir Singh was related to Shiv Singh. Out of love and affection, the property of Shiv Singh was looked after by Raghbir Singh. It is urged that later intentions of Raghbir Singh became dishonest and he relied upon will dated 12.1.1976 and preferred Civil Suit No. 32 of 1993. Copy of ;judgment has been annexed as Annexure P2. The suit was filed for declaration to the effect that Raghbir Singh was owner in possession of House No. 12, Old Jawahar Nagar, Jalandhar. In the suit, it was also pleaded that plaintiff has become owner by virtue of will dated 12.1.1976 and also by adverse, hostile, peaceful and continuous possession of the suit property. Suit filed by Raghbir Singh was dismissed. One of the issue framed by the trial Court was "whether Shiv Singh deceased executed a valid will in favour of plaintiff Raghbir Singh on 12.1.1976?"
The Court held that plaintiff while appearing in the witness box had not uttered even a single word that deceased Shiv Singh had ever executed any will in favour of plaintiff Raghbir Singh. The suit was dismissed. An appeal was filed and the same was dismissed. The judgment of the Appellate Court has been annexed as Annexure P3. It is stated that civil litigation between Raghbir Singh and Darbara Singh attained finality.Criminal Misc. No. M-4478 of 2009 3
Darbara Singh had also filed a suit against Raghbir Singh and his sister Baldev Kaur for possession of the house.
The judgment by the trial Court was pronounced in both the suits on same day. Suit of Darbara Singh was decreed and decree of possession of House No. 12, Old Jawahar Nagar, Jalandhar was issued in his favour. The decree in favour of Darbara Singh was passed on 28.7.2000. It is stated that thereafter Darbara Singh sold the suit property to accused Arun Kumar, Parminder Singh and Rakesh Sehgal on 23.1.2006. It is stated that Darbara Singh had obtained possession of the house earlier thereto.
Arun Kumar, Parminder Singh and Rakesh Sehgal had filed Criminal Misc. No. M-5103 of 2009.
In both the petitions, relief of quashing of FIR has been sought.
During pendency of petition filed by Darbara Singh, the Investigating Agency had submitted a report under Section 173 Cr.P.C. against the accused/petitioner on 20.10.2008 under Sections 419, 420, 467, 468, 471 read with Section 120-B IPC. The impugned FIR has been lodged on the bass of statement made by Ranjit Kaur wife of Iqbal Singh. Ranjit Kaur is stated to be daughter-in-law of Raghbir Singh. As stated earlier Raghbir had initiated civil litigation and had lost the same.
The Investigating Agency has cited 11 witnesses. Except Ranjit Kaur, all witnesses are official witnesses. Witness No.2 Tehsildar, Jalandhar, has stated about conducting of enquiry and submission of report. Jagdish Saluja, Registry Clerk, has to prove the will which was subject matter of civil suit.Criminal Misc. No. M-4478 of 2009 4
In M.S. Sheriff and Another v. State of Madras and Others AIR 1954 Supreme Court 397, it has been held by a Constitution Bench of Hon'ble the Apex Court that between civil and criminal proceedings, criminal proceedings are to be given precedence.
In B.N. Kashyap v. Emperor AIR 1945 Lahore 23, a Full Bench examined the legal position and held that a finding of certain facts of Civil Court in action in personam is not relevant before the criminal Court when it is called upon to give a finding on the same facts. Similarly, the finding on certain facts by the criminal Court is not relevant before the Civil Court when it is called upon to give a finding on the same facts. It was further held that to hold that when a party has been able to satisfy a Civil Court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties it would not be open to criminal Courts to go behind the findings of the Civil Court is to place the latter without any valid reason in a much higher position than what it actually occupies in the system of administration and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. There is no reason why the decision of the civil Court particularly in an action in personam should be allowed to have greater sanctity. It was further held that the fact that the issues in the two cases although based on the same facts (and strictly speaking even parties in the two proceedings) are not identical and there appears to be no sufficient reason for delaying the proceedings in the criminal Court, which, unhampered by the civil Court, is fully competent to decide the questions that arise before it for its Criminal Misc. No. M-4478 of 2009 5 decision.
Counsel for the petitioner has further relied upon M/s Karamchand Ganga Pershad and Another v. Union of India and Others AIR 1971 Supreme Court 1244 to state that decisions of Civil Court are binding on Criminal Courts and converse is not true. This controversy was further considered by Hon'ble the Apex Court in K.G. Premshanker v. Inspector of Police and Another 2002(4) Recent Criminal Reports 596 and it was held as under:-
"28. What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be relied upon as provided under Section 40 to 43 of the Evidence act; (2) in civil suits between the same parties, principles of res judicata may apply; (3) in a criminal case, Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.
29. Further, the judgment, order or decree Criminal Misc. No. M-4478 of 2009 6 passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by 'A' or 'B's property, 'B' filed a suit for declaration of its title and to recover possession from 'A' and suit is decreed. Thereafter, in a criminal prosecution by 'B' against 'A' for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes title as well as possession of 'B' over the property. In such case, 'A' may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, first question which would require consideration is - whether judgment, order or decree is relevant?, if relevant - its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case".
The reproduction, however, shows that Civil Courts judgments which have been envisaged under Section 41 of the Indian Evidence Act are conclusive and the Criminal Courts have to give due sanctity and respect to them. This matter was again considered by Five Judges Criminal Misc. No. M-4478 of 2009 7 Bench in Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another (2005)4 Supreme Court Cases 370. In para 32, it was held as under:-
"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras give a complete answer to the problem posed:
"15. As between the civill and criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of Criminal Misc. No. M-4478 of 2009 8 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 Criminal Misc. No. M-4478 of 2009 9 have grown too dim to trust.
This, however, is not a hard-and-
fast rule. Special considerations obtaining in any particular case might make some other course more 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 sits should be stayed till the criminal proceedings have finished".
Having noticed the above said legal position, it will be necessary to notice Section 41 of the Indian Evidence Act. Section 41 of the Indian Evidence Act read as under:-
"41. Relevancy of certain judgments in probate, etc., jurisdiction -
A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the Criminal Misc. No. M-4478 of 2009 10 existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof--
that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued, to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property."
As noticed above in the judgment (Annexure P2) where Raghbir Singh has sought declaration that he is owner in possession on basis of will executed by Shiv Singh, specific issue No.1 was framed, the finding of which has been noticed earlier. At the cost of repetition, it is stated that Civil Court held that Raghbir Singh had not said a single word regarding the will allegedly executed by Shiv Singh who died on 18.3.1981. Therefore, the Court had negated the plea of Raghbir Singh that on basis of will or adverse possession, he has become owner of the Criminal Misc. No. M-4478 of 2009 11 property. Therefore, it will not lie in the mouth of the complainant Ranjit Kaur who is daughter-in-law of Raghbir Singh that Darbara Singh who had succeeded before the Civil Court should prove his ownership over the property and the sale effected by him.
Hence, both the petitions are accepted and the FIR along with all subsequent proceedings is quashed.
(Kanwaljit Singh Ahluwalia) Judge March 10, 2009 "DK"