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KEY TAKEAWAYS

  • Civil proceedings are initiated against civil wrongs that are private in nature, whereas criminal cases are registered against crimes that affect the society.
  • The procedure of filing a civil case is different from that of a criminal case, and even while initiating a criminal case in a civil suit, this process should not be disturbed.
  • It is permissible in law to file a civil and criminal case simultaneously and the Courts are required to determine the validity of the cases by analyzing their merits.
  • The maintainability of a civil suit does not allow the Court to quash a criminal proceeding that had arisen out of the same facts, unless the criminal complaint is filed with mala fide intention to misguide the Court.

INTRODUCTION

When we learn about civil and criminal cases, we consider them as two distinct fields that are not related or perhaps that cannot be related to each other. Yes, in fact, these two legal areas are indeed distinct, but they cannot be seen as unrelated. Let’s first understand the differences between them. The basic nature of civil wrong is itself different from that of a criminal wrong. In a civil wrong, the injured party institutes civil proceedings against the lawbreaker. Here, the commonly acknowledged remedy is damages. The injured party is compensated by the wrongdoer for the injury.

On the other hand, in a criminal wrong, criminal proceedings against the accused are brought by the State. To be more precise, in the case of a criminal wrong, the victim of the crime, i.e., the injured party is not compensated. Justice is administered by punishing the wrongdoer in such a case. However, it is also possible that an act done by a person may result in two wrongs, a crime as well as a tort, at the same time. In such a case, both the civil and the criminal remedies would simultaneously be available. There would be civil action requiring the lawbreaker to compensate the victim as well as a criminal action awarding punishment to the wrongdoer.

COMMENCEMENT OF CIVIL PROCEEDINGS

The procedures of filing a civil case in India are given under the Code of Civil Procedure, 1908. It can be summarized as follows:

1) Filing of the complaint wherein the grounds upon which the assistance of the court is sought by the plaintiff. (Section 26 and Order 7 of the Code)

2) After the suit is filed, a summons is issued to the defendant ordering him to appear before the court. (Section 27-29 and Order 5 of the Code)

3) A written statement is filed by the defendant or his duly appointed agent within 30 days from the service of summons. However, the said period may be extended to 90 days. (Order 8 of the Code)

4) The defendant can make a cross-claim against the plaintiff if the suit is for recovery of money. Such cross-claim is known as “set-off”.(Order 8, Rule 6 of the Code)

5) There is also a concept called “counterclaim” which the defendant can file against the plaintiff. (Order 8, Rule 6-A to 6-G)

6) The plaintiff as well as the defendant, both are entitled to know, before the trial, all the material facts constituting the case of the opposite party and all documents in his possession/power relevant to the issue in the suit with a view to maintain his case or to meet with, impeach or destroy the case of his adversary at the hearing.

7) Generally, every suit contemplates two sets of facts, namely, 1) the facts which constitute a party’s case (factaprobanda); and 2) the facts by which the said case is to be proved (factaprobantia). A party is entitled to know the first set of facts before the commencement of the trial. For the purpose of the same, the following provisions have been made in the Code:

I) Discovery and inspection of facts and documents on which the other party wishes to rely. (Order 11 of the Code)

II) Admissions (Order 12 of the Code): Admissions may be made before or after the filing of the suit and the judgement and decree may be passed on such admissions.

III) Production, impounding and return of documents (Order 13 of the Code): The parties must produce the documentary evidence on or before the settlement of issues. The object is to secure fair trial, to produce the evidence earlier and to prevent the belated production of documents. The document may be impounded and kept in custody on reasonable circumstances.

IV) Affidavits (Order 19 of the Code): An affidavit is “a sworn statement in writing made especially under oath or on affirmation before an authorised officer or Magistrate” [M. Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28]

8) Interim Orders (Orders 24, 25, 26, 38, 39, 40): The word “interim” means “provisional” or “temporary”. Interim Orders are those orders passed by the court during the pendency of a suit which do not determine the substantive rights and liabilities of the parties with respect to the suit. The following interim orders can be passed under the Code: i) Payment in Court, ii) Security for costs, iii) Commissions, iv) arrest before judgement, v) attachment before judgement, vi) temporary injunctions, vii) interlocutory orders, viii) receiver.

9) Withdrawal and Compromise of Suits (Order 23 of the Code): The plaintiff may withdraw his suit with or without the leave of the court. This is an absolute and unqualified right of the plaintiff and the court cannot refuse to grant permission of withdrawal and cannot compel the plaintiff to proceed with the suit. (K. S. Bhoopathy v. Kokila, AIR 2000 SC 2132). Similarly, after the institution of the suit, the parties may agree to settle the case by a lawful agreement or compromise (Moti Lal Banker v. Maharaj Kumar Mahmood Hasan Khan, AIR 1968 SC 1087).

10) Summons to witnesses (Order 16 of the Code): The parties have to move the court to issue summonses to the witnesses. However, the Code also permits a party to bring witnesses to give evidence or produce documents without applying for summons.

11) In case of death of either of the parties, the suit will not abate, if the right to sue survives. It can be continued by or against the heirs or legal representatives of the deceased plaintiff/defendant. However, if the right to sue doesn’t survive, the suit will come to an end. Marriage of a party will also not cause the suit to abate. In case the plaintiff becomes insolvent, the suit can be continued by his Assignee or Receiver. But, if the Assignee or Receiver refuses to continue the suit, the suit shall be dismissed by the Court. Similarly, if a defendant becomes insolvent, then the proceedings shall be stayed by the Court.

Post the above procedures, the trial proceeding commences wherein the court starts the hearing of the suit, record evidence, examine the witnesses, adjourn the matter to a further date, and pass the judgement once the hearing is completed.

COMMENCEMENT OF CRIMINAL PROCEEDINGS

The procedures involved in the filing of a criminal case are contemplated under the Code of Criminal Procedure, 1973:

1) The pre-trial stage begins when the commission of a particular offence is categorized as cognizable or non-cognizable.

2) In case of cognizable offence, a First Information Report (FIR) is required to be registered under Section 154 of the Code, whereas for non-cognizable offence, a non-cognizable report is to be registered by the police under Section 155 of the Code.

3) The police have to make an investigation for the collection of evidence, examining the witnesses, and interrogating the statements. In case of cognizable offence, the Police can start the investigation work immediately after the registration of FIR whereas for non-cognizable offence, prior permission of the Magistrate is necessary.

4) Since the police are authorized to arrest the accused in the middle of investigation, if circumstances warrant an arrest, the accused has the right to apply for anticipatory bail in the Sessions Court or the High Court. If bail is permitted, then the accused cannot be arrested. But, if rejected, the police can arrest him without warrant.

5) For arresting an accused for cognizable offence, the police need not show a warrant. However, in case of non-cognizable offence, prior approval of the Magistrate is mandatory.

6) Post the arrest, the accused should be produced before a magistrate having competent jurisdiction within 24 hours of the arrest.

7) If the accused is arrested and the police have not completed the investigation within 24 hours of the arrest, then the police may keep the accused in remand with the Magistrate’s permission.

8) On the completion of the investigation, a charge sheet has to be filed if a case is made out and if no case is made out, then a final report has to be submitted before the Court.

9) After the filing of the charge sheet, the Magistrate takes the cognizance of the offence under Section 190 of the Code. In R.R.Chari v. State of U.P AIR 1951 SC 207, the Apex Court had observed that taking cognizance would not involve any kind of formal or indeed action but would occur as soon as a Magistrate as such applied his mind to the suspected commission of offence.

10) After all the procedures are completed, then comes the framing of charges by the Court. If the accused pleads guilty, then the Court may convict him. And if he pleads not guilty, the matter is then posted for trial.

Post the above procedures, the trial proceeding commences wherein the court starts the hearing of the case, recording evidence, examining the witnesses, and adjourns the matter to a further date, and passes the judgement once the hearing is completed.

CAN CIVIL AND CRIMINAL PROCEEDINGS BE INITIATED SIMULTANEOUSLY?

A person who commits a wrong need not necessarily know whether it is of a civil or criminal nature. Similarly, it is also not possible that the lawbreakers would commit only either of the wrongs at one time. Obviously, while making a mistake, no one would analyse the nature of the wrong. So, practicably, one can commit a civil as well as a criminal wrong together. Suppose there is a property dispute between two parties, so this will be a civil case. But what if the facts of the case also give scope to a criminal offence in the same suit? This will require a criminal proceeding. A criminal proceeding cannot be barred on the only ground that there is also a civil remedy available in the case.

In Lalmuni Devi (Smt.) vs. State of Bihar &Ors (2000), the Supreme Court observed that a case can give rise to both a civil claim as well as a criminal offence. It was held that merely because a civil claim has been held maintainable does not mean that the criminal complaint is liable to be quashed. Thus, a criminal prosecution is maintainable even if the case deals with a civil wrong provided it is proved, prima facie, that the concerned criminal complaint is not frivolous or vexatious. It is also important to note that the civil and criminal remedies are awarded concurrently and not alternatively.

Leading Case Laws:

1) M. S. Sheriff vs. State of Madras &Ors. (1954)- In this case, two sets of civil and criminal prosecution had arisen from the same facts. The Supreme Court opined that in such cases, the criminal proceedings must be given more priority. The question raised before the Court was whether a case in which both civil and criminal prosecution is made can be stayed together. The Court stated that while staying a civil suit is acceptable but a criminal suit cannot be stayed as such because it affects the public interest. It was also opined that the civil suit in concern can be stayed until the disposal of the criminal prosecution. Thus, it is quite evident that the Court does not altogether prohibit the simultaneous filing of civil and criminal cases.

2) Lalmuni Devi vs. State of Bihar &Ors (2000)-“Merely because a civil claim is maintainable does not mean that a criminal complaint cannot be maintained”, the Top Court observed.

3) P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu (2008)- It was held that simultaneous proceedings of a civil and criminal case are permissible in law. It was also stated that the stay of civil or criminal proceedings depends on the facts and circumstances of each case.

4) P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu (2009)- It was observed that a civil proceeding and a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by criminal courts upon arriving at the satisfaction that there exists a prima facie case, it was further stated.

ANALYSIS

Suppose there is a property dispute wherein X wants to recover a sum of money from Y. This is a civil matter and so a civil suit is to be filed. However, we have understood the problem of delay in litigation as one of the demerits of a civil case in the above section. Nobody wants their case to get delayed, and so would X want too. So, he decides to turn it into a criminal case by adding to the suit some aspects that would attract the Indian criminal law. However, it is the courts that get trapped in this regard as they will have to find out whether the alleged offence is true or not. In most of the cases it is not, and the only motive of the petitioner for initiating a criminal proceeding is to speed up the trial process.

This initiation of criminal proceedings is considered as exasperating. In Indian Oil Corporation vs. NEPC India Ltd. &Ors, the Supreme Court condemned such practices and firmly stated that the courts must forbid such practices as it would mislead the courts by exploiting the nature of the suit, thereby encouraging malpractices. Do you know that criminal proceedings can give you more remedies than a civil suit? This is yet another reason why victims try to include a criminal case in a civil suit. If we consider the issue from the eyes of its demerits, then probably we wouldn’t want such a facility at all. However, it is mandatory to consider the positive side too.

Let us take an example. Suppose A, while negligently riding a car, had hit on B, as a consequence of which B died. Now, this has become a criminal case. May be it’s not a murder but the act attracts punishment under Section 304A of the Indian Penal Code. The Section just prescribes punishment, of two years of imprisonment or fine, for death caused by negligence. However, what if the victim’s family wants compensation for the death of their relative. This can be done by filing a civil suit under the Motor Vehicles Act. So, this case has both civil and criminal prosecutions.

As seen above, it is usually the criminal proceedings that are given priority over civil cases. This is a good practice because a success in the criminal suit can actually help in getting justice in the civil case too. Take the above case. Here, obviously, the case under Section 304A of IPC would be taken first. So, if A is held guilty under the said Section, then it would be easier for B’s family to claim compensation. Thus, despite few disadvantages, permitting simultaneously civil and criminal proceedings is actually beneficial.

Courts here play an important role in determining the merits of the case. As highlighted in P. Swaroopa Rani Case, cognizance in a criminal proceeding can only be taken when the Court is satisfied that there is a prima facie case. Moreover, it is also necessary to prevent abuse or undue advantage of the process.

CONCLUSION

When a person commits a wrong, he does not differentiate it as criminal and civil. Some of the civil wrongs even overlap or sometimes occur together with a crime. The law therefore allows the filing of a criminal and civil case simultaneously. This is because a case may give rise to both criminal and civil prosecution wherein it becomes crucial to punish the offender and at the same time, to compensate the injured. However, the courts must cautiously deal with such cases after careful consideration of the facts. Courts must utilize their powers to quash wrongful criminal complaints to prevent abuse of this provision.


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