1. MUHAMMAD YUSUF SARAF, J.--A complaint against the petitioner under section 406, Penal Code was brought in the Court of A. D. M., Muzaffarabad by one Jaffar Khan a resident of Lora-Lai Baluchistan on the allegation of having committed breach of trust with regard to cloth valued at Rs, 1,800 and entrusted to him vide document Exh. P. A. The accused denied both the entrustment as well as the execution of the document. The complainant examined Muhammad Zaffar Khan the alleged scribe and Mukhtar-Ullah one of the alleged witnesses to the deed. The learned Magistrate found the accused guilty and sentenced him to 6 months' R. I. An appeal to the Sessions Judge having failed, the accused came in revision to this Court.
2. The petitioner moved an application before my Lord the Chief Justice who is hearing the case praying for stay of the revision petition on the ground that the genuineness of the document was also involved in two civil cases before the Sub-Judge under the following circumstances :- (1)The complainant has brought a suit against the accused petitioner on 30-3-70 for recovery of Rs, 1,800 the alleged price of the alleged goods on the basis of the alleged deed of entrustment.
3. (2)That the petitioner had also filed a suit in the said Court on 30-6-70 seeking a declaration that the alleged deed of entrustment was a forged one.
4. The Chief Justice has referred the following question to this bench for decision :- "Whether the hearing and decision of a revision petition against an order of conviction (under section 406, A. P. C.) can be postponed when a civil suit has been filed by the accused challenging the deed of entrustment as being a forgery after the conviction had been recorded by the learned trial Magistrate and especially when his appeal against the order of conviction had also been dismissed by the learned Sessions Judge ?"
5. A trial Court seized with a criminal case has ample powers under section 344 of the Criminal Procedure Code to adjourn its hearing until the disposal of the matter by the civil Court. These powers have been exercised by the High Courts under section 561-A of the Criminal Procedure Code. One may only cite AIR 1926 All. 30 and AIR 1927 Lah. 669 and 17. The question before us in this case is as to whether a revision application against conviction can be stayed on the ground that the complainant and the accused have both filed civil suits which have a direct bearing on the facts of the present case? No authority was cited by either side and with the limited facilities for research available here, I have not myself come across any case where the question of staying an appeal or revision in a criminal case could have come up for determination before any High Court.
6. There are, however, some cases where the appellate Court on the civil side ordered stay of proceedings in the criminal Court until the disposal of the appeal. Some of these cases are briefly stated below :- In AIR 1916 Pat. 7 prosecution under sections 193 and 209, Penal Code was ordered by the District Judge, Saran in a case for the grant of a succession certificate which was refused ; on appeal to the High Court against the refusal to grant the certificate, the High Court stayed the criminal case mainly on the ground that if the appeal succeeded ultimately and meanwhile the appellant had suffered imprisonment in the criminal case, it would create an anomalous position.
7. In AIR 1927 Lah. 669 the petitioners' civil suit was dismissed by the Senior Sub-Judge, Amritsar and as a result of the said dismissal a complaint under section 467/471, Penal Code was instituted against them for having forged a will produced in the said Court. An appeal against the dismissal of the suit was filed in the High Court. An appeal against the order under section 476 filed in the Court of the District Judge and a revision filed in the High Court failed. Proceedings in the complaint continued; arguments were heard on the 21st of July 1927, and the case was reserved for judgment.
8. At this stage an application was made in the High Court under section 561-A for stay of proceedings in the criminal Court on the ground that it might prejudice the petitioners' appeal already pending in the High Court. The prayer was granted and it was ordered that the judgment shall not be announced until the disposal of the civil appeal. There are a host of cases wherein criminal proceedings were stayed pending the determination of the dispute in the civil Court. One may only cite AIR 1935 Cal. 182, AIR 1934 Sind 143, AIR 1942 Bom.
9. 330, AIR 1937 Pat. 8, AIR 1916 Lah. 174 and (1894) 2 Weir 260. In the last case the question involved, as in the Lahore case cited above was about the genuineness of a document. Similarly in AIR 1937 Pat. 8 the dispute related to a hand note. A civil suit was brought on the basis of the said hand note and the defendant alleged that it was the out-come of fraud. The defendant then brought a complaint against the plaintiff who made an application in the High Court for stay of proceedings in the said complaint. Accepting the application Justice Rowland said :- "The High Courts have invariably refused to lay down any fixed rule in dealing with cases of this nature. It is regarded as ordinarily a question of convenience whether the proceeding of one party or of the other party should be heard first. In dealing with this question of convenience the Court of first instance has a discretion and the High Court ordinarily will be by no means eager to interfere with the exercise of that discretion if it is judicially exercised. In the present case had the question of convenience been before me as a Court of first instance, I have no doubt that I should have been of opinion that the balance of convenience was in favour of the money suit in the Munsirs Court being first determined and the criminal proceeding being decided afterwards. The Magistrate has not given reasons for refusing to stay the trial before him but merely says that he does not see sufficient ground to postpone the criminal proceedings. I do not feel sure that the Magistrate has really considered the balance of convenience. In the circumstances of this particular case I shall follow the example of Adami, J. in 6 P L T 348 and direct that the criminal proceedings be stayed pending the disposal of the civil suit which I hope the Munsif will do his utmost to expedite."
10. In AIR 1935 Cal. 182 a challan under section 409,114, Penal Code was pending in the Court of the Chief Presidency Magistrate, Calcutta while two civil suits were pending in the High Court on its original side. Accepting the application for stay, the Division Bench said :-- "It is said that the suits are ripe for hearing and we do not appreciate that the ends of justice will suffer by postponement of the prosecution in the criminal Court. On the other hand I have mentioned already, in view of the nature of the case there is some risk of a conflict of jurisdiction."
11. Perusal of these cases shows that the criminal cases have been stayed for one or more of the following reasons :-- (1)To avoid a conflict of jurisdiction between the civil and criminal Courts.
12. (2)In the criminal Court there may be an imperfect appreciation of the question which would be subjected to more searching examination in the civil Court.
13. (3)It was considered undesirable that the same dispute be allowed to be fought out simultaneously in criminal and civil Courts.
14. (4)When the question of the genuineness of a document was involved in both the Courts.
15. (5)To avoid multiplicity of proceedings.
16. (6)Where public interest as opposed to the individual interest, required stay of criminal proceedings.
17. (7)Where the case which resulted in the initiation of criminal proceedings was itself subject of an appeal.
18. There have also been cases where stay of proceedings in the criminal Courts was refused.
19. Reference may in this connection be made to AIR 1933 Sind 14, AIR 1930 Pat. 351, AIR 1929 Cal. 563 and AIR 1935 Rang. 487. The grounds of refusal to stay, generally laid down in these authorities, are :- (1)If the criminal case has been filed with the object of postponing the criminal case.
20. (2)Where evidence in the criminal case may be lost or destroyed.
21. (3)When the prayer was based on a mere chance of the civil case having a bearing on the criminal case.
22. (4)When the civil case has no direct bearing on the criminal case or where the decision in the criminal case whatever it be, could not prejudice the accused as a party in the civil case.
23. Thus we have found that there is no hard and fast rule governing the stay of criminal proceedings pending the decision of a connected civil case. Every case has, therefore, to be decided In the light of its own facts.
24. In the instant case the following facts figure out pro-minently :-
(1) The petitioner has been convicted solely on the basis of a document which purports to be a deed of entrustment and which has been treated by the Magistrate as genuine.
25. (2)After the petitioner's conviction by the trial Court, two civil suits as detailed above have been filed and in both of them, the primary question for consideration is the genuineness or otherwise of the alleged deed of entrustment. In ...both the suits the following issue has been already framed :- "Is the entrustment deed a forged one? 0. P. D."
26. (3)The danger of evidence in the criminal case being lost, won over or destroyed does not arise as the trial has long concluded and the petitioner stands convicted.
27. (4)It is not only the accused who has brought a suit which could conveniently be condemned by the opposite side as an attempt to delay the decision in the criminal revision but it is also the complainant who has come. to the civil Court and in fact preceded the petitioner in doing so and thus even if the petitioner had not filed his suit, the question of the genuineness of the document in question had come before the civil Court quite independently of the petitioner.
28. Having given my earnest consideration to all the aspects of the matter, I have come to the conclusion that the criminal revision should be stayed till the disposal of the civil suit ; I have come to this decision in view of the following circumstances :- (1)Any decision by this Court in the revision application is more likely than not, to influence the mind of the Judge trying the civil cases in determining the genuineness or otherwise of the alleged deed of entrustment. It is thus very likely to prejudice the merits of the parties' respective pleas.
29. (2)In the event of the proceedings not being stayed, suppose the revision fails ; the petitioner will have to undergo the sentence of imprisonment. Suppose it is subsequently found by the civil Court that the document in question was really a. forged one. Failure to stay the hearing of the criminal revision would in such a case cause the petitioner irreparable injury.
30. (3)Such a situation as above conflicts with the dictates of public interests and tends to bring the administration of justice into disrepute. I shudder to think of the sense of shock that the community would experience in such a situation.
31. (4)On the other hand if proceedings on the criminal side are stayed and ultimately even the civil Court, after a more searching examination, comes to the conclusion that the: document was a genuine one, the criminal revision can be taken up for decision without any embarrassment. It would have only meant some delay in its disposal but when we compare it with the weight of possible mischief in the event of not staying it, there is no doubt that the balance of convenience is decidedly in favour of staying the hearing of the criminal revision in this Court. Delay in such a situation far from defeating Justice, would on the contrary ensure its realisation in its truest sense and sublime form.
32. My answer, therefore, to the question referred to this Bench by my Lord the Chief Justice is that it is in the interest of justice that hearing in the criminal revision be stayed but the civil Court be directed to expedite the disposal of the civil cases within a period of 3 months.
33. RAHIM DAD KHAN, J.--I agree.