Calcutta High Court
Union Of India (Uoi) vs Monoranjan Mondal Alias M.R. Mondal on 20 April, 2004
Equivalent citations: (2004)3CALLT572(HC), 2005(1)CHN222
Author: Dilip Kumar Seth
Bench: Dilip Kumar Seth
JUDGMENT Dilip Kumar Seth, J.
1. This is an application for stay of hearing of this appeal, since commenced and being continued, on the ground that a criminal trial arising out of the same set of facts or transaction is pending out of the charge sheet, which the applicant came to learn about only in February 2004. This is being opposed by the appellant through Mr. Kapor while supported by Mr. Roy for the respondent.
Submission of the respondent/applicant:
2. Mr. Balai Chandra Roy, the learned Advocate General contends that the appeal being a civil proceeding, if continued, would embarrass the criminal trial leading to a compulsion for the applicant to disclose his defence. According to him, the charges to be tried in the criminal proceedings as against the applicant are identical with those, which are at issue in this appeal. A finding on that score in this appeal being a decision of the Civil Court would be binding on the Criminal Court though the converse is not true. On account of pendency of the trial before the Criminal Court the applicant would not be able to disclose material documents to defend his case in this appeal as trained by Mr. Kapoor on behalf of the appellant. He also contends that in fitness of things it is appropriate and desirable that the civil proceedings should await the result of the criminal proceedings. He also relies on the ground of property as well as the question of conflicting decision including the question of binding nature of the decision of the Civil Court on the Criminal Court. He also contends that while deciding the appeal the Civil Court will decide the question of fraud, forgery and conspiracy though in the civil nature and though there is a thin line of distinction in the matter of proof in a criminal trial and those in a civil trial, yet under sections 42 and 43 of the Evidence Act the decision of the Civil Court would be relevant fact and would bind the Criminal Court and, as such hearing of this appeal should be stayed.
2.1. He relies on the decision in M.S. Sheriff v. State of Madras, . Relying on this decision, he contended that the parallel proceedings of the civil and criminal case would embarrass the applicant. This decision was supported on the ground that there is a possibility of conflict of decisions and that the criminal proceedings should be given precedence over the civil proceedings. He then relies on the decision in Tata Oil Mills v. Workmen, to contend that the accused cannot be compelled to disclose his defence in the criminal proceeding by compelling him to participate in the domestic enquiry. He then relies on the decision in M/s. Karamchandv. Union of India, to contend that the decision of the Civil Court is binding on the Criminal Court. He next relies on the decision in Shanti Kumar Panda v. Shakuntala Devi, for the same proposition that the decision of a Civil Court is binding on a Criminal Court. He next relies on the passage from Sarkar on Evidence, Fifteenth Edition 1999 at page 845 with regard to the proposition of judgment of Criminal Court when relevant and irrelevant in civil cases and vice versa. Lastly, he relies on a decision in Bhaskar Mondal v. UCO Bank, (2002) 2 Cal LT 574 (HC) to point out the yardstick where the civil cases should be stayed. On this ground he submits that the hearing of this appeal should remain stayed. He assures that in case the hearing of the appeal remains stayed, his client will not pray for interest for the period during which the hearing would remain stayed. He also contends that the Court may bind his client for expeditious disposal of the criminal cases against him.
Submission on behalf of the appellant/opposite party:
3. Mr. Kapoor, the learned counsel for the appellant opposing this application points out that the applicant had made all endeavours to forestall the proceedings of the criminal case and conclusion of the civil case and had initiated writ petition No. l2086(W) of 1999 for quashing of the First Information Report out of which the present charge sheet been submitted. In the said proceedings the applicant had filed written notes of submissions, a copy whereof has been produced before us, the authenticity whereof has not been disputed by Mr. Roy. It appears from pages 34 and 41 of the said written notes that the applicant in the said proceedings had intended and prayed that the civil proceedings should be decided first and the criminal proceeding should await the decision of the civil proceeding. Mr. Kapoor further points out that the scope of investigation in this appeal would be completely different from those involved in the criminal trial. At the same time, there might be identical facts and some overlapping but that does not preclude the Court from proceeding with the civil case. The standard of proof in the criminal trial and that in the civil trial are completely different. The scope of investigation with regard to the fraud is relevant for the purpose of determining the civil liability which is of a civil nature and completely different from the offence of fraud as defined in the Indian Penal Code. He also points out that there is no scope of disclosing any defence or embarrassment of the applicant in the criminal trial. In the facts and circumstances of the case, where the defence has since been disclosed and all materials are before the Court and the matter was being heard finally and that the counsel for the appellant has concluded his submission and no application under Order 41 Rule 27 of the Code of Civil Procedure (CPC) is pending and there is no further scope of disclosure of any further materials or filing any further affidavits.
3.1. He points out that this matter was heard before the other Court for days together when no such ground was taken. These were being heard before the other Division Bench for quite a long time exceeding fifty days and, ultimately, on account of certain situation the other Division Bench was pleased to release the matter after which this has since been assigned to this Court and the hearing had continued for quite some time. That apart, there is no scope of investigating whether the applicant is guilty of fraud or not so far as this appeal is concerned. Here the scope is limited to the fraud of civil nature, if there be any.
3.2. He also distinguishes the decisions cited by Mr. Roy. He also points out that there is no hard and fast rule. Relying on the decision in Sheriffs case (supra), he points out that the Court is not supposed to stay when it is inexpedient to stay a civil case at the fag end of its conclusion of trial or at the stage of conclusion. On the other hand, he relies on the decision in State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. and Ors., to contend that the approach of the Court has since changed from 1954 till date. Now the view is that the civil case is not supposed to stay on account of pendency of criminal trial as was held in the said decision. He then relies on Kamaladevi Agarwal v. State of W.B. and Ors., and points out that moreover Shieriffs case (supra) was distinguished in the said decision to the extent it has laid down the law. He relies on paragraphs 12, 15 and 17 of the said decision to support his contention.
3.3. On these grounds he prays that the application be dismissed and the hearing be continued.
Reply by applicant:
4. Mr. Roy in reply points out that the reference to the prayer for expedition of the civil trial on the face of the submission made in Writ Petition No. 12086(W) of 1999 for quashing of the FIR is wholly misplaced inasmuch as it was at the stage of investigation during which he was free. It was completely different from the stage of trial. Now the charge sheet having since been issued the trial would commence and it is at this stage of trial, he has to defend the charges leveled against him whereas at the investigation stage he was not supposed to defend any of the charges proposed to be leveled against him. Therefore, that will not be a relevant factor for the present purpose. Mr. Roy also distinguishes the decision in Kalyan Sundaram Cement Industries Ltd. (supra) on the ground that it had not taken into consideration the decision in Sheriffs case : , which is a Constitution Bench decision of five Judges. Two Judge Bench deciding Kalyan Sundaram Cement Industries Ltd. (supra) had omitted to consider the five Judges Constitution Bench decision in Sheriffs case. The decision is per incuriam since it has omitted to note the established principles of law. Therefore, no reliance can be placed on the said decision. The decision in Kamaladevi Agarwal (supra) was also sought to be distinguished by him on the ground that it dealt with completely different subject matter which is distinguishable from the facts and circumstances of the present case and therefore, it has no impact on the question at issue. He further points out the question of relevance of the decision in the civil Court and in the criminal Court and also elaborate the submission he has already made.
Disclosure of defence : Whether a ground available:
5. After having heard learned counsel for the parties it appears that it is an admitted fact that the appeal was being heard before the other Division Bench for a quite long time and continued for successive days exceeding 50 in number and that thereafter it was released and assigned to this Bench. The hearing had continued for almost 4/5 days spanning within four weeks and then waited for another four weeks due to the intervention of the short holidays and other reasons. The learned counsel for the appellant has since concluded his submission. All materials have already been on record. No application under Order 41 Rule 27 has been filed by either of the parties. At this stage of hearing no affidavit is proposed to be field or we do not think there is any scope of filing of any further document or affirming any further affidavit. We are supposed to decide the question on the basis of materials already on record. All materials have since been disclosed. The proceeding is almost nearing completion. Therefore, the principle that it would compel the applicant to disclose its defence would no more be a ground since everything has already been disclosed. On that ground the embarrassment of the applicant in the criminal trial also cannot be a ground, which can be sustained.
5.1. Then again on the principles of law as is established now there is no hard and fast rule to stay the civil proceedings on account of pendency of a criminal trial. It is a question of expediency of desirability or propriety or appropriateness. These are to be weighed with the facts and circumstances of a particular case. So far as the question of embarrassment in the Criminal trial or disclosure of evidence is concerned we do not think, having regard to the facts and circumstances of the case that this ground would be available to the applicant at this late hour when the appeal is being heard finally.
Whether the civil trial should wait till the criminal trial is over:
6. Admittedly, there was an attempt to quash the FIR. In its anxiety to get the criminal proceeding quashed the applicant had intended that the civil proceedings should be decided first and the criminal trial should wait. May be such statement was made at the stage of investigation but investigation was only the first stage of the trial and the trial commences after the charge sheet is taken cognizance of. At the same time, result of the investigation would be the initiation of the trial unless there is a final report. The entire intention of the applicant was to prevent the criminal trial to commence since he was asking for quashing, of the FIR, which would go at the root of the criminal trial itself and with this earnestness the applicant had intended and prayed that the civil proceedings should continue and the criminal trial should wait. Therefore, it would not lie in his mouth to contend that now the civil proceedings should wait till the outcome of the criminal trial. He cannot blow hot and cold in the same breath. May be, it was made at the investigation stage when he enjoyed the freedom but that freedom would not entitle him to claim postponement of the civil trial after the charge sheet is filed.
The relevance of decision in civil case in criminal trial out of same transaction : Embarrassment:
7. The moot question that is relevant for our present purpose is on the question as to whether the relevance of the decision of the civil Court under sections 42 or 43 of the Evidence Act in the criminal trial would be an embarrassment for the applicant and would attract the principles of expediency or desirability or propriety or appropriateness for staying a civil proceeding. In view of sections 42 and 43 of the Evidence Act the decision of the Civil Court might be relevant in the criminal case as was pointed out by Mr. Roy from page 85 of the Commentaries from Sarkar on Evidence, 15th Edition, 1999. The proposition is not in dispute but the facts remain that the relevance of the decision in civil case would not entitle the complainant to obtain a conviction of the accused simply on the basis of the decision in the civil case. The standard of proof in a criminal case and those in a civil suit are completely different. In the criminal case the proof must be beyond all reasonable doubt; whereas in a civil proceedings the same can be decided accordingly on the basis of the probabilities as was held in M. Krishnan v. Bijoy Singh, . In Kamala Devi Agarwal (supra), M. Krishnan (supra) was relied upon and the element of civil nature was a question, which was considered by the Court. There it was held that the nature and scope of civil and criminal proceeding and standard of proof required in both matters are different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities. The criminal case has to be decided by adopting the standard of proof beyond all reasonable doubt. The criminal cases are to be proceeded with in accordance with the Code of Criminal Procedure and the pendency of a civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. The Apex Court of two Judges Bench in the said decision has referred to the decision in M.S. Sheriff (supra) and quoted the same in its judgment and had distinguished the same. At the same time, the decision in M.S. Sheriff (supra) also does not lay down any straight-jacket formula.
7.1. While dealing with M.S. Sheriffs case (supra), the Apex Court in Kamala Devi Agarwal (supra) had held that:
"15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of "beyond reasonable doubt". A Constitution Bench of this Court, dealing with similar circumstances, in M/s. Sheriff v. State of Madras held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the Court held : (AIR p. 399, paras 15-16)
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 that 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 weights 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.
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 proceedings 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 furnished."
7.2 Sheriffs case (supra) had laid down that there was no hard and fast rule and it has to be looked into on the basis of the expediency and it would be inexpedient to stay a civil proceeding when it is nearing completion as in the present case. Therefore, Sheriffs decision not help Mr. Roy. So far as the proposition as enunciated in Santi Kumar Panda (supra) that the decision of a civil Court is binding on the criminal Court is concerned, there is no second opinion with regard to the said proposition. Therefore, we are not required to deal with the proposition as was laid down in Santi Kumar Panda (supra). Similarly, decision in M/s. Karamchand Ganga Prashad (supra) also does not help us though it had held that the decision of the Civil Court is binding on the criminal Court, inasmuch as while dealing with a writ petition since dismissed on the ground that the criminal case was pending, the writ petition was restored after holding that the High Court was wrong in dismissing the writ petition in view of pendency of criminal trial. The decision in Tata Oil Mills Company Ltd. (supra) is also an accepted proposition of law and does not help us in the facts and circumstances of this case.
7.3 This question was elaborately dealt with in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1016. The Apex Court had laid down in the said decision as to in what circumstances criminal proceedings or the civil proceedings could be stayed or how the parallel proceedings are to be dealt with. However, it did not lay down any hard and fast rule or straight jacket formula. It had laid down certain guidelines. The said decision proceeded on the basis of desirability propriety, appropriateness and advisability. One of us had occasion to deal with the said question in Bhaskar Mondal v. UCO Bank and Ors., (2002) 2 Cal LT 574 (HC). This was dealt with elaborately in the said decision in paragraphs 11 and 14. We may refer to the excerpts from the said paragraphs as quoted below:
"11. Mr. Ganguly had relied on R.P. Ramqjayam (supra), a decision by the Madras High Court which had held in favour of staying departmental proceedings pending criminal case arising out. of identical facts on the plea that the delinquent cannot be compelled to disclose his defence, since it would erode the legal right of the delinquent .......... In Ashok Kumar Katoch (supra) decided in 1995, the Himachal Pradesh High Court (DB) had taken the same view. Similar view was taken in B,K. Agarwal (supra) by the Punjab and Haryana High Court. We may refer to various other similar decisions of different High Courts. Such decisions as observed in Capt. M. Paul Anthony (supra) can be aptly described definitely a question of perennial nature and had arisen more often than not in spite of various judicial pronouncements, despite the proposition having been settled by the Apex Court, which provided the answer. In the said decision, it was held, that "proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception............The little exception may be where the departmental proceedings and the criminal case are based on same set of facts and the evidence in both the proceedings is common without there being a variance.
*** *** *** 11.2. ......... State of Rajasthan v. B.K. Meena, , had laid down that each of the decisions referred to therein starts with the indisputable proposition that there is no legal bar for both proceedings to go simultaneously and then say that in certain situation, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charge. The staying of disciplinary proceedings, it is emphasized, is a matter to be determined having regard to the facts and circumstances of a given case and no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions in constituting a valid ground for staying the disciplinary proceeding is that the defence of the employee in the criminal case may not be prejudiced. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law...........that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'property' as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case.............
*** *** *** This decision has gone two steps further than the earlier decisions by providing:
"1. The 'advisability', 'desirability' or 'propriety' of staying the departmental proceedings, go into the scales while judging the advisability or desirability of staying the disciplinary proceedings' merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated question of fact and law.
2. One of the contending considerations would be that the disciplinary proceedings cannot and should not be delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would not be in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely awaiting the result of criminal proceedings."
*** *** *** 11.4. All the decisions were discussed in Capt. M. Paul Anthony (supra) wherein the conclusion were deduced from the various decisions in the following manner:
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (i) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
11.5. In fact, in Capt. M. Paul Anthony (supra), the ratio decided in various decisions have been crystallized as above. It had laid down that both the proceedings can proceed simultaneously since there is no legal bar, but in a case where both the proceedings are founded on identical and similar set of facts and the charges are grave in nature involving complicated questions of fact and law, it is desirable to stay the departmental proceedings till the criminal case is concluded. Whether the charge in criminal case is grave and whether the complicated questions of fact and law are involved is dependent on the nature of the offence and the nature of the allegations on the basis of the evidence and material collected during investigation as reflected in the charge sheet. This cannot also be considered in isolation and due regard is to be given that the departmental proceedings is not unduly delayed. If the criminal case does not proceed or the disposal is unduly delayed then departmental proceedings can proceed and if not stayed the same should be resumed. It is to be done for the reason that if the employee is found not guilty of the charge, then his honour would be vindicated and if he is found guilty, the administration may get rid of him at the earliest."
7.4 The scope of the civil suit and the proof are different. This may also be one of the factors for deciding as to whether both the proceedings involved complicated questions of fact and law. In any event, the Criminal Court is not supposed to go into the question, which would be relevant to be gone into the civil proceedings. The approach, the standard of proof, the extent of the facts to be established for proving civil liability are different from those in the criminal proceedings. The matter would have been different, if the proof of the allegations were dependant mostly on oral evidence. But when the proof relates mostly on records and documents, it assumes a different complexion than the criminal charges.
7.5. The factor of 'advisability', 'desirability', or 'propriety', has no objective standard. It is subject to subjective standard, to be weighed with, by the Court, having regard to the facts and circumstances of each case. It has to be ascertained from (a) comparison of the changes leveled in the criminal trial and the liability involved in the civil proceedings; (b) comparison of the ingredients constituting the offence and the civil liability; (c) the nature and distinction between the kinds of charges and the civil liability; (d) the relation of the allegations in the charges leveled and the civil liability involved in the civil proceedings; (e) the extent and scope of the facts to be established; (f) the standard of proof required; (g) the variance of the evidence to be led in the two proceedings; (h) the question of delay involved; (i) the availability of the evidence and witnesses; (j) the relevance of the questions between the two; (k) the extent of dependence the Criminal Court can place on the records of the civil proceedings; (l) the kind, extent and proportion of evidence involved i.e., documentary or oral; (m) the extent of graveness of the charges; (n) the involvement of complicated question of fact; (o) the extent of complication with regard to the question of law involved; (p) status/ stage of the two proceedings; and (q) status or stage of the evidence or defence already disclosed in either of the proceedings. These factors may not be exhaustive, but these are guiding factors for ascertaining the 'desirability', 'appropriateness' or 'propriety' of staying the civil proceedings.
7.6. Having regard to the facts and circumstances of this case where the civil proceedings had reached finality before the arbitrator and the learned Court of the first instance and is nearing completion in the appellate stage, when the criminal trial is yet to begin and the defence in the civil case is already disclosed, evidence led and closed, in view of the ratio in Sheriffs (supra) and applying the tests laid down in Captain M. Paul Anthony (supra) and in Bhaskar Mondal (supra) as discussed above, we do not think that the question of desirability, propriety or appropriateness could be attracted in favour of staying the civil proceedings.
7.7. Lastly, we find that the scope of this investigation in the appeal is limited to the ground provided in Section 34 of the Arbitration and Conciliation Act, 1996. It is only the question whether the award can be set aside on the ground available under Section 34 or not. We are not called upon to decide as to the conduct of the applicant or the guilt of the applicant/claimant or whether he was guilty of any offence, or the mens rea. We are simply to look into the ground that has been made out for the purpose of setting aside the award. One of the grounds in Sub-clause (ii) of clause (b) of Sub-section (2) of Section 34 when the arbitral award is in conflict with the public policy of India. This public policy has been explained in the explanation declaring for removal of doubt that the award is in conflict with the public policy of India. If the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81, then it would be in conflict with public policy. Then only the scope that is to be looked into is if the making of the award was induced or affected by fraud or corruption. We have also looked into the charges. None of the charges leveled against the applicant relates to this inducement or affecting the award by fraud or corruption, instead the charges are common intention and conspiracy as is disclosed in the charge sheet at pages 45, 48 and 66 of the application. We are not supposed to dilate on the question of common intendment or conspiracy in the present case. We are also not supposed to find out as to whether the applicant was guilty of fraud as defined in the Indian Penal Code and determine the same beyond all reasonable doubt. Even if the decision of this Court is relevant in the criminal trial even then it cannot be taken to be a stage that it will bring home charges leveled against the applicant without any further proof. Criminal charge has to be proved independent of the finding by the Civil Court.
Conclusion:
8. Therefore, we do not find any reason to stay the hearing of this appeal at this stage.
8.1. However, we make it clear that our findings in this appeal will not ipso facto be proof of the charges levelled against the applicant that are to be established in accordance with law in the criminal trial though the decision may be the relevant fact to be utilised in the Criminal trial.
8.2. This application is dismissed. There will, however, be no order as to costs.
8.3. This order shall govern all other similar 51 applications filed in the respective other 51 appeals.
Xerox certified copy of this judgment be made available to the parties, if applied for, within seven days from the date of such application.
R.N. Sinha, J.
8.4. I agree.