Mere pendency of civil case

In the judgment of the case - Md. Allauddin Khan v. the State of Bihar & Others, delivered on April 15, 2019, Justice Abhay Manohar Sapre and Justice Dinesh Masheshwari, at the Supreme Court, have held that mere pendency of a civil suit is not an answer to the question as to whether a case under sections 323, 379 read with section 34 IPC is made out against respondents Nos. 2 and 3 or not and on that ground criminal case cannot be quashed.

According to the Apex-Court, the Patna High Court should have seen that when a specific grievance of the appellant in his complaint was that the respondents Nos. 2 and 3 have committed the offences punishable under sections 323 and 379 read with section 34 of the IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not.

In other words, in order to see whether any prima facie case against the accused for taking its cognizance is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the HC on this material question, the impugned order is legally unsustainable.

The second error is that the HC has held in para 6 that there are contradictions in the statements of the witnesses on the point of occurrence.

In the Supreme Court's view, the HC had no jurisdiction to appreciate the evidence of the proceedings under section 482 of the Cr.P.C., 1973. because whether there are contradictions or /and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.

It is due to these two errors, the SC is of the considered opinion that the reasoning and the conclusion arrived at by the HC for quashing the complaint filed by the appellant against the respondent Nos. 2 and 3 is not legally sustainable and hence it deserves to be set aside.

The appeal in this case was directed against the final judgment and order passed by the Patna HC on September 11, 2017,in criminal Misc. Application 27078 of 2013 whereby the HC allowed the said Application filed by the respondents - 2 and 3 herein and quashed the complaint filed by the appellant herein.

Through the impugned order, the HC quashed the order passed by the JMFC, Saran at Chhapra on February 13, 2013 whereby the JMFC took cognizance of the complaint filed by the appellant herein against respondents 2 and 3 , by holding that a prima facie case was made out against respondents 2 and 3 on the basis of allegations made in the complaint.

A short question which arose for consideration in this appeal filed by the complainant was whether the JMFC was right in holding that a prima facie case was made out against respondents 2 and 3 for commission of these offences so as to call upon them to face the trial on merits or whether the HC was right in holding that no prima facie case was made out against the respondents 2 and 3.

After hearing the lawyers on both the sides and on perusal of the record the Court allowed the appeal, set aside the impugned order and restored the order of the JMFC of February 13, 2013.

Instead of examining the case, the HC, in the para 6 of its judgment ,gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the parties. It is on this ground, the HC proceeded to quash the complaint. This approach of the HC, “in our view”, is faulty.

The HC has also held that the criminal prosecution of these petitioners in this background appears to be an abuse of process of Court.

Though the HC referred to the law laid down by this Court in the case - State of Haryana & Others v. Ch. Bhajan Lal & Others- AIR 1992 SC 604, but failed to apply the principle laid down therein to the facts of this case.

The HC failed to see that mere pendency of a civil suit is not an answer to the question posed in the petition. The HC should have seen that when a specific grievance of the appellant in his complaint was that respondents 2 and 3 have committed the offences, then the question to be examined is as to whether there are allegations of commission of these offences in the complaint or not.

In other words, in order to see whether any prima facie case against the accused for taking its cognizance is made out or not, the Court is only required to see the allegations made in the complaint. In absence of any finding recorded by the HC on this material question, the impugned order is legally unsustainable.

In view of this discussion, the Supreme Court allowed the appeal in favour of the appellant. It set aside the impugned order and restored the order passed by the JMFC on February 13, 2013, because it records the finding that a prima facie case for taking cognizance of the complaint is made out.

The Supreme Court has directed the Judicial Magistrate, to proceed to conclude the trial on merits on the basis of evidence adduced by the parties in the trial strictly in accordance with law uninfluenced by any observations made by the HC in the impugned order and in this order made by it (Supreme Court).

 

R.S.Agrawal 
on 22 May 2019
Published in Others
Views : 405
Other Articles by - R.S.Agrawal
Report Abuse









×

  LAWyersclubindia Menu