Gitesh Ranjan Bhattacharjee, J.
1. This appeal is directed against the order and judgment dated the 12th July, 1989 passed by U.C. Banerjee, J. in suit No. 747 of 1988, by which the learned Judge stayed the said suit and all proceedings thereunder till the final disposal of the complaint case No. 1233 of 1988 and 1488 of 1988 including the Park Street Police Station case No. 455 dated, the 27th July, 1988. The plaintiff company (the appellant herein) filed the said suit on the allegation that the defendants Nos. 1 and 2 (that is, the respondents Nos. 1 and 2 herein) jointly carried on business as share and stock brokers and that, during the period April, 1984 to April 1985 the plaintiff paid a sum of Rs. 1,98,00,000 to the defendant Nos. 1 and 2 for the purpose of acquiring shares in various companies and with specific instructions to do so including 3,51,300 shares of the defendant No. 3 (Mahindra and Mahindra Ltd.) of the value of Rs. 1,39,34,513 to be purchased in the name of plaintiff or its nominee. It was also the allegation of the plaintiff that the defendants Nos. 1 and 2 purchased the said 3,51,300 shares in the Mahindra and Mahindra Ltd. for and on behalf of the plaintiff with the money provided to the defendants Nos. 1 & 2 by the plaintiff for the said purpose, but the said defendants however delivered only 1,75,000 shares in Mahindra and Mahindra Ltd. to the plaintiff and refused and neglected to deliver the balance 1,76,300 shares. In the suit the plaintiff therefore prayed for specific delivery of the said 1,76,300 shares in Mahindra and Mahindra Ltd. by the defendants Nos. 1 & 2 along with appropriate documents as might be required for the registration of the said shares in the name of the plaintiff, with certain incidental reliefs. The plaintiff also alternatively prayed for a decree of Rs. 1,06,00,000 as the value of the said shares along with interest thereon. The plaintiff also filed a separate application in the said suit for appointment of receiver. The defendants Nos. 1 & 2 then filed in the said suit an application for staying the suit and all proceedings thereunder on the ground that the plaintiff earlier filed through its employee two petitions of complaint under Section 156(3) Cr PC covering the selfsame matter on the basis of which the police started the Park Street P.S. Case No. 455 dated the 27th July, 1988 under Section 409/34, Indian Penal Code.
2. In the first petition of complaint filed on behalf of the appellant company, Apeejay (P) Ltd. It is stated that the company through its associate companies entrusted to the accused persons (who are the defendants/respondents Nos. 1 and 2) a sum of Rs. 1,98,00,000 with instruction to purchase various shares on behalf of the appellant company and that, the company was made to understand by the accused persons that they had purchased different shares for the appellant company, as per direction, valued at Rs. 1,97,48,354 and further that, out of the shares in different companies purchased by the accused persons, certain shares were sold by the accused person as per the instruction of the appellant company and they deposited in favour of the appellant company only certain amount out of the said sale-proceeds leaving a balance of Rs. 63,93,605 but inspite of repeated assurance the accused persons did not make over the said sale-proceeds to the appellant company and thus committed the offence punishable under Section 409/34 of the Indian Penal Code. In the said petition of complaint although the purchase of equity shares in EID Parry Limited and Mahindra and Mahindra Ltd. was mentioned, yet it was stated therein that separate criminal proceedings in respect of the same would be started against the accused persons in due course. The second petition of complaint filed on behalf of the appellant company under Section 409/34 IPC was in respect of the shares of the said two companies, namely, EID Parry Ltd. and Mahindra and Mahindra Ltd. In the second petition of complaint the allegation inter alia is that the accused person were instructed as share brokers to purchase 86,400 shares of EID Parry Ltd. and 3,51,300 shares of Mahindra and Mahindra Ltd, and to deliver the said purchased shares to the appellant company and that, accordingly they purchased the shares but despite several reminders the accused persons only delivered to the appellant company 78,038 shares of EID Parry Ltd. and 1,75,000 equity shares of Mahindra and Mahindra Ltd. leaving a balance of 8,362 equity shares of EID Parry valued at Rs. 1,21,249 and 1,76,000 equity shares of Mahindra and Mahindra Ltd. valued at Rs. 69,94,013 which shares have not been delivered by the accused persons despite assurance given by them and that by not returning the purchased shares in respect of the aforesaid two companies for which the accused had received full payment from the appellant company the accused persons committed criminal breach of trust in respect of Rs. 71,15,262 being the aggregate value of the shares of the aforesaid two companies which have not been received by the appellant company. It is also alleged therein that the accused persons criminally misappropriated the said amount knowing fully well that they were under legal obligation to make over the purchased shares or the value thereof to the appellant company which is the property of the appellant company. That petition of complaint was also referred to the police under Section 156(3) Cr PC and the police accordingly started the Park Street P.S., Police case in respect of the complaint as mentioned earlier. It was the contention of the
defendants/respondent Nos. 1 and 2 before the trial court that since police investigation was pending in respect of complaints lodged under Section 409/34 IPC in respect of the self-same matter, the civil suit should be stayed till disposal of the criminal proceeding. The learned Judge, by his impugned order, granted the prayer of the defendant/respondents and stayed the civil suit till disposal of the criminal proceedings. Being aggrieved by the stay order, the appellant/ plaintiff has preferred the present appeal.
3. It may be noted here that although the complaints, under Section 156(3) Cr PC in respect of the offence punishable under Section 409/34 IPC covered allegations concerning shares of various companies mentioned therein including Mahindra and Mahindra Ltd., yet the suit has been filed, as we have seen, only in respect of the undelivered shares of Mahindra and Mahindra Ltd. It is also to be noted that in the suit the plaintiff prayed for specific delivery of the undelivered shares in Mahindra and Mahindra Ltd. by the defendants Nos. 1 and 2 or for the value thereof quantified at Rs. 1,06,00,000. It is also to be mentioned that in the suit the plaintiff claimed on the plea that there was an obligation on the concerned defendants to deliver the concerned shares to the plaintiff, but the case in the criminal proceedings is based on the further allegation that the accused persons have committed criminal breach of trust and mis-appropriation in respect of the concerned shares. It is also to be noted here that while in the criminal proceedings the accused cannot be found guilty of the offence under Section 409 IPC unless the ingredients of the offence of the criminals breach of trust or criminal misappropriation are established against them, the relief claimed in the civil suit for delivery of the shares or for recovery of the value thereof is based on the mere obligation to deliver the shares irrespective of the question whether any criminal breach of trust or criminal misappropriation has been committed in respect of the same. In other words, while in the civil suit the success of the claim of the plaintiff company will depend upon the question whether it has been able to establish that the defendants have an obligation to deliver the concerned shares and if so, whether they have failed to discharged that obligation, in the criminal proceedings that will not suffice for finding the accused guilty and it will have to be established yet beyond reasonable doubt that there was entrustment and criminal breach of trust/ misappropriation in terms of the definitions contained in the appropriate Sections of the Indian Penal Code. This aspect of the matter is highlighted only to indicate that even if the plaintiff obtains a decree in the civil suit against the accused defendants, that by itself will not establish a charge under Section 409 IPC against them for which the ingredients are different and which will have to be established beyond reasonable doubt before the criminal court by leading appropriate evidence for finding the accused guilty under Section 409 IPC, notwithstanding a money decree or a decree for specific delivery of shares from the civil court against the accused defendants.
4. The learned trial Judge has stayed the civil suit as he is of the opinion that since there is identity of the subject matter in the civil suit as well as in the criminal proceedings there is no question of further proceeding in the civil suit and the question of continuance of the civil suit does not arise till the disposal of the criminal matter. The learned Judge has based his decision in the matter mainly on two grounds namely, that the continuance of the suit will deprive the accused defendants of their protection against testimonial compulsion as provided in Article 20(3) of the Constitution of India and that a decision in favour of the plaintiff in the civil suit will almost automatically lead to a conviction of the accused defendants in the criminal proceedings without the procedural benefits of a criminal trial. The learned trial Judge, it seems, was also impressed by the argument advanced on behalf of the defendants in the suit that the accused have the constitutional right to maintain silence and they cannot be compelled to state their defence in the criminal proceedings by filing affidavit in the civil suit.
5. Now let us first examine the question whether the continuance of the civil suit would infringe the right to protection against self-incrimination or testimonial compulsion as provided in Article 20(3) of the Constitution which the learned trial Judge thought would be infringed if the suit was allowed to proceed and the accused defendants contested the claim of the plaintiff appellant in the suit as they would be thereby disclosing their defence in the criminal proceedings. In connection with the Article 20(3) of the Constitution the learned trial Judge has referred to the decision of the Supreme Court in M.P. Sharma and Ors. v. Satish Chandra . In the impugned judgment of the trial court there is however no discussion of the said decision or as to how the said decision is applicable to the facts and circumstances of the present case. The learned trial Judge at the very starting of the judgment records thus : 'An interesting question of law as regards the true effect of Article 20(3) of the Constitution falls for consideration in this application. It is to be noted that one of the fundamental principles of British system of criminal jurisprudence is that there is total prohibition as regards the compulsion of self-incrimination. The Indian Law also provides an immunity on the basis of such compelled evidence. The Supreme Court decision in the case of M.P. Sharma and Ors. v. Satish Chandra, lends assistance to the views expressed above. How
the said decision was applicable to the facts of the present case however has not at all been discussed.
6. Article 20 which finds place in the chapter of fundamental rights in the Constitution of India is reproduced below :-
"20. (1). No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the com mission of the offence.
(2) No person shall be prosecuted and punished for the same offence more then once.
(3) No person accused of any offence shall be compelled to be a witness against himself."
We thus find that the protection afforded by Article 20(3) is that no person accused of any offence shall be compelled to be a witness against himself. The decision of the Supreme Court in M.P. Sharma v. Satish Chandra (supra) does not anywhere say that the continuance of a civil suit in the circumstances as in the present case would amount to a violation of the sale protection which is commonly known as a protection against testimonial compulsion. The question which directly arose in the decision of the Supreme Court in M.P. Sharma v. Satish Chandra (supra) was whether a search and seizure of documents from a person against whom a first information report had been lodged with the police, amounted to compelling him to be a witness against himself within the meaning of Article 20(3). It was held in that case by the Supreme Court that things could be seized from the accused or from his premises, though he could not be compelled to produce them, and that compulsory search did not violate Article 20(3). It was observed by the Supreme Court in paragraph 10 of the said decision at page 304 thus :
"Indeed every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part."
Apart from merely making passing reference to the said decision of the Supreme Court in M.P. Sharma v. Satish Chandra (supra) the learned trial Judge in the present case also quoted a passage from the decision of a learned single Judge (P.B. Mukherjee, J.) of this court In re: Central Calcutta Bank Ltd. . It seems that
the learned trial Judge was under the impression that the passage quoted by him from the said decision of P.B. Mukherjee, J. would necessarily warrant an order of stay in the present civil suit. But on a plain reading of the quoted passage it would however be apparent that the same did not contain any such import. The learned Judge (P.B. Mukherjee, J.) observed thus as quoted in the judgment of the learned trial Judge :- testimonial compulsion, therefore, is not a legal fetish. It is a necessity. Testimonial compulsion is the general rule. The constitutional prohibition of self-incrimination evidence is an exception designed to defend justice and ensure the accused against self-created criminal traps. Legal protection against self-incrimination, therefore, is one of the pillars of liberty of criminal justice in a civilised society. But such liberty should be confined within the limits of its doctrine and not expanded into sentimentality that testimonial compulsion is always a kind of unproclaimed tyranny to be shunned in law. Testimonial compulsion is a necessary obligation of a responsible citizen to aid the machinery of justice and thus help it to discover truth. The quoted observations of the learned Judge obviously do not warrant that a civil suit of the present nature will have to be stayed on the ground of protection against testimonial compulsion simply because a criminal proceeding is also pending on the same manner. On the other hand what is indicated in the quoted observation is that the import of the protection against the self-incrimination should be confined within the limits of its doctrine and should not fee expanded into sentimentality so as to misapply the protection to a sphere where this is not applicable. In our opinion, the learned trial Judge has, in the present case, missed the import of the observations of the learned Judge in the decision In re: Central Calcutta Bank Ltd. (supra).
7. It may be noted here that a Bench of 11 Judges of the Supreme Court had to consider the question of the constitutional protection against testimonial compulsion in State of Bombay v. Kathi Kalu Oghad, . In the said decision it was inter alia held by the Supreme Court that giving the impression of foot, palm or finger or giving specimen hand writings or showing parts of body by way of identification does not infringe Article 20(3). It was further held that the mere questioning of an accused by a police officer resulting in a voluntary statement which may ultimately turn out to be incriminatory, is not 'compulsion'. It was also held that the statements of an accused admissible under Section 27, Evidence Act are not within the prohibition of Article 20(3) unless compulsion has been used in obtaining the information and that, the mere fact that the accused was in police custody at the time when he made the statement did not make it a compelled statement. It will thus be seen that when the accused in reply to interrogation made by police while in police custody makes a voluntary statement which leads to discovery of incriminating materials such statement becomes admissible in evidence against the accused under Section 27 of the Evidence Act. The accused giving thumb impression or specimen hand writing for the purpose of comparison is also, in view of the Supreme Court decision, not entitled to any plea of protection under Article 20(3). In the circumstances, can there be any scope of arguing that if the acccused defendant files any written statement or examines himself as a witness in a civil suit, that would be tantamount to compelling him to be a witness against himself in respect of the criminal charge that may be pending against him ? The answer cannot but be an emphatic 'no'. The cardinal point involved in the protection of Article 20(3) relates to the question of compulsion. There is no question of compulsion in the defendant's filing a written statement in the civil suit or in examining himself as a witness to protect his own interest in such suit. The rule against testimonial compulsion does not go to the extent of making the accused a universally privileged person. Even in criminal proceedings the law requires that the accused has to be asked to plea whether he is guilty or not guilty of the charge brought against him. If he volunteers to plead guilty in answer to the question put to him, the same may be accepted and acted upon by the court and the court may even confict him on such plea. No question of violation of Article 20(3) of the Constitution arises in such case. Then again Section 313 Cr PC empowers the court to put questions to the accused at any state of the trial and also requires the court to put questions to him after the prosecution evidence has been concluded, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. It is also provided in Sub-section (4) of Section 313 Cr PC that the answers given by the accused while examined under Section 313 Cr PC may be taken into consideration in the enquiry or trial in which such examination was made, and may even be put in evidence for or against the accused in any other enquiry or trial for any other offence which such answers may tend to show he was committed. The examination of the accused under Section 313 Cr PC in the very criminal proceeding itself does not violate Article 20(3) of the Constitution and the answers given by the accused may be taken into consideration, obviously against the accused himself also in such trial or even in any other trial. Also, the confessional statement of an accused recorded under Section 164 Cr PC is admissible as evidence against him in criminal trial and this is so even if the confession has been retracted by the accused. The evidentiary value of a retracted confession is indeed a separate consideration not relevant for our present purpose. Section 315 Cr PC permits an accused to be a witness for the defence in a criminal trial and also permits the accused to give evidence on oath in disproof of the charges made against him. There is no violation of the protection of testimonial compulsion if the accused, of his own accord, prefers to examine himself as a witness in the criminal case to disprove the charges brought against him, because there is no compulsion against him to examine himself and it is no compulsion that the accused chooses to examine himself as witness in disproof of the charges which he does obviously to protect his own interest. If that is the position regarding the applicability of the rule against testimonial compulsion in the criminal trial itself, it is only quite untenable to say that there will be violation of the rule against testimonial compulsion if the accused-defendant flies any defence or examines himself in the civil suit in order to protect his own interest therein.
8. In T.G. Gaokar v. R.N. Shukla, there were
simultaneous proceedings against the appellant one, a criminal prosecution in court under Section 135 of the Sea Customs Act and the other, a proceeding before the Customs Authority for imposition of penalty under Section 112, Sea Customs Act, 1962. The Customs Authority, during the pendency of the criminal proceedings in court issued a notice to the appellant to show cause why the seized smuggled gold should not be confiscated under Section 111 of the Sea Customs Act and why a penalty should not be imposed on him under Section 112 of the same Act. Identical issues arise in proceedings for imposition of penalty under Section 112(b) of the Sea Customs Act, 1962 and in a trial for an offence punishable under Section 135 (b) of the same Act. In paragraph 5 of the decision in T.G. Gaokar v. R.N. Shukla (supra) the Supreme Court observed that the Customs Officers had a discretion to stay the proceedings under Sections 111 and 112 during the pendency of the trial in the criminal court and when in exercise of that discretion they refused to stay the proceedings and it was not shown that their action was mala fide or arbitrary, the court would not issue a mandamus to control this exercise of their discretion. The appellant also took a plea before the Supreme Court that the proceedings under Sections 111 and 112 of the sea Customs Act were in violation of Article 20(3) of the Constitution and that unless the proceedings were stayed the appellant would be compelled to enter the witness box to rebut the evidence of one X and would be forced in cross-examination to give answers incriminating himself. The Supreme Court repelled tills contention of the appellant and In this connection made the following illuminating observations in paragraph 6 of the decision :-
"The appellant is, therefore, a person accused of an offence. But it is not possible at this stage to say that he is compelled to be a witness against himself. There is no compulsion on him to enter the witness box. He may, if he chooses, not appear as a witness in the proceedings under Sections 111 and 112. The necessity to enter the witness box for substantiating his defence is not such a compulsion as would attract the protection of Article 20(3). Even in a criminal trial, any person accused of an offence is a competent witness for the defence under Section 342A of the Criminal Procedure Code and may give evidence on oath in disproof of the charges made against him. It may be very necessary for the accused person to enter the witness box for substantiating his defence. But this is not reason for saying that the criminal trial compels him to be a witness against himself and is in violation of Article 20(3). Compulsion in the context of Article 20(3) must proceed from another person or authority. He is not compelled to be a witness if he voluntarily gives evidence in his defence."
It may be noted here that Section 342 A referred to in the above question corresponds to Section 315 of the present Criminal Procedure Code. The decision of the Supreme Court in T.G. Gaokar v. R.N. Shukla (supra) is thus a complete answer to the fallacious idea that the continuation of civil suit or departmental proceeding during the pendency of criminal proceeding is a violation of Article 20(3).
9. The Supreme Court decision in Dushyant Somal v. Sushma Somal, is also very relevant in this connection. In
substance a question was raised before the Supreme Court whether during the pendency of a criminal case under Section 363 IPC against the husband for kidnapping the child, the wife could simultaneously maintain and proceed with writ application under Article 226 of the Constitution against the husband for production of the child and whether the husband could be compelled in the writ proceeding to disclose his defence in the criminal case, by leading evidence on his side and by cross-examining the wife and her witness in her writ proceeding. The husband's contention was that such a course would offended against Article 20(3) of the Constitution. In repelling the said argument advanced on behalf of the husband, the Supreme Court observed thus in paragraph 5 in Dushyant Somal v. Sushma Somal (supra) :-
"There was no question at all of compelling the appellant petitioner to be a witness against himself. He was free to examine himself as a witness or not. If he examined himself he could still refuse to answer questions, answers to which might incriminate him in pending prosecutions. He also free to examine or not other witness on his own behalf and to cross-examine or not witnesses examined by the opposite party. Protection against testimonial compulsion did not convert the position of a person accused of an offence into a position of privilege, with immunity from any other action contemplated by law. A criminal prosecution was not a fortress against all other actions in law. To accept the position that the pendency of a prosecution was a valid answer to a rule for Habeas Corpus would be to subvert the judicial process and to mock at the Criminal Justice system. All that Article 20(3) guaranteed was that a person accused of an offence shall not be compelled to be a witness against himself, nothing less and certainly, nothing more. Immunity against testimonial compulsion did not extend to refusal to examine and cross-examine witnesses and it was not open to a party proceeding (sic) (proceeded against) to refuse to examine himself or anyone else as a witness on his side and to cross-examine the witnesses for the opposite party on the ground of testimonial compulsion and then to contend that no relief should be given to the opposite party on the basis of evidence adduced by the other party. We are unable to see how Article 20(3) comes to the picture at all."
These decisions of the Supreme Court in Dushyant Somal v. Sushma Somal (supra) and T.G. Gaokar v. R.N. Shukla (supra), amongst others, demonstrate that it is wholly untenable to say that the continuance of a civil suit or a departmental proceeding during the pendency of the criminal case relating to the same matter will be violative of Article 20(3) which affords protection against testimonial compulsion. The position in law is very clear that if an accused makes any statement not under any compulsion in the sense in which the term has been referred to in Article 20(3) but voluntarily for the purpose of his own convenience or for protecting his own interest or for any reason whatsoever including the purpose of inviting punishment even, as happens when he voluntarily pleads guilty or makes confession under Section 164 Cr PC, that does not bring the case within the ambit of Article 20(3). We therefore reiterate that the accused cannot stall a civil suit or a departmental proceeding during the pendency of a criminal proceeding on the ground of Article 20(3) of the Constitution which is not at all available for such purpose for reasons elaborately discussed above. The assumption of the trial court that the continuance of the civil suit during the pendency of the criminal proceeding would be a violation of Article 20(3) of the Constitution is not correct. Incidentally it has to be mentioned here that a person appearing as a witness in a case may be compelled to answer any question as to any matter relevant to the matter in issue in that Us inspite of the fact that such answer may incriminate him, but in such case the proviso to Section 132 of the Evidence Act gives necessary protection to the witness that the answer which the witness may be compelled to give shall not be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. Thus Section 132 of the Evidence Act gives so much of protection as will ensure the protection of Article 20(3). Thus, in the suit if the defendant appears as a witness on his own behalf and is then compelled to give an incriminatory answer, such answer can no doubt be used in the suit, but the same cannot be used against him in the Criminal proceeding in view of the proviso to Section 132 of the Evidence Act. This is the protection which the accused is entitled to, and he will have it, but such protection cannot be extended to a fanciful and unreasonable extent in every situation under the sun by treating the accused as a privileged person immune from all accountability in respect of civil liability or other non-criminal liability. Stay of the civil suit, as a mandatory proposition, is thus wholly untenable.
10. The learned trial Judge, in this connection also relied upon certain decisions of the Supreme Court, namely Delhi Cloth and General Mills Ltd. v. Kushal Van, and Tata Oil Mills Company v. D. Workmen, . It is however to be mentioned that in none of those cases Article 20(3) was canvassed in support of the plea for stay of the departmental enquiry pending criminal proceedings on same facts. It is evident that no such plea of Article 20(3) was raised in those cases because the said Article was patently not available for staying a departmental enquiry pending the disposal of a criminal proceeding for reasons discussed above. In Delhi Cloth and General Mills v. Kaushal Van, the facts as relevant for our purpose were thus. A charge was brought against an employee regarding theft of cycle. Over the same matter both disciplinary proceeding and criminal case were started against the concerned employee. The employee did not participate in the disciplinary proceeding on the ground that the criminal case was pending and he did not want to produce any defence till the matter was decided by the court. The disciplinary proceeding was however completed and the employee was dismissed from service. The employer company made an application under Section 33(2), Industrial Disputes Act to the tribunal for approval of action taken against the employee. Before the matter came up for hearing before the tribunal the criminal court acquitted the accused employee on the ground that the case against him was not free from doubt. In view of such order of criminal court the tribunal refused to approve the order of dismissal of the employee. The employer company then approached the Supreme Court on appeal by special leave. The Supreme Court in paragraph 3 of the said decision in Delhi Cloth and General Mills Lid. v. Kushal Van (supra) observed that it was true that very often employers stayed enquires pending the decision of the criminal trial courts and that was also fair, but it could not be said that principles of natural justice required that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. It was however added by the Supreme Court that if the case was of a grave nature or involved questions of fact or law, which were not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case might not be prejudiced. It is however evident that despite its advisory observations, the Supreme Court in that decision says in categorical terms that it cannot be said that principles of natural justice require that an employer must wait for the decision of the criminal trial court before taking action against an employee. Not only that. In that decision, inspite of the order of acquittal of the employee by the criminal court the Supreme Court upheld the order of dismissal passed against the employee by the employer on completion of departmental enquiry on the self-same allegation before the conclusion of the criminal trial. This decision of the Supreme Court in Delhi Cloth and General Mills, for from assisting the respondents defendants and far from supporting the view taken by the trial court rather demonstrates that even during the pendency of the criminal proceeding in respect of the self-same matter a departmental enquiry against the accused employee can be concluded by the employer and on the basic of such enquiry the employee may even be dismissed from service and such dismissal may be upheld notwithstanding the fact that the criminal court on trial acquitted the accused employee on the ground that the case against him was not free from doubt.
11. The next case relied upon by the trial court is the decision of the Supreme Court in Tata Oil Mills v. Workmen. . The
facts relevant for our purpose as involved in the said case are thus. On the allegation that the employees assaulted another employee of the company while he was returning home after performing his duty, a departmental enquiry and a criminal proceeding were started. On conclusion of the departmental enquiry the company applied to the Industrial Tribunal for approval of dismissal of the delinquent employees and the approval was granted and the employees were dismissed from service. The respondent Union of the workmen raised an industrial dispute regarding dismissal of one of the employees and the tribunal held that the dismissal of the employee was not justified and ordered for his reinstatement. Against that order the company come up before the Supreme Court by special leave. It may be noted here that the industrial tribunal also took the view that since criminal proceeding had been started against the employee, domestic enquiry should have been stayed till disposal of the criminal proceeding. The Supreme Court took note of its earlier decision in the case of Delhi Cloth and General Mills Ltd. (supra) holding it desirable that if the incident giving rise to the charge framed against a workman in domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. The Supreme Court observed (in Tata Oil Mills) that it would be particularly appropriate to adopt such course where the charge against the workman is of a grave character, because in such a case it would be unfair to compel the workman to disclose the defence which he might take before the criminal court. The Supreme Court then in paragraph 9 of the decision in Tata Oil Mills (supra) went ahead observing thus :-
"But to say that domestic enquires may be stayed pending criminal trial is very different from anything (sic) that if an employer proceeds with the domestic enquiry inspite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or mala fide. In fairness, we ought to add that Mr. Menon did not seek to justify this extreme proposition. Therefore we must hold that the industrial tribunal was in error when it characterised the result of the domestic enquiry as mala fide partly because the enquiry was not stayed pending the criminal proceedings against Raghavan. We accordingly hold that the domestic enquiry in this case was properly hold and fairly conducted and the conclusions of fact reached by the Enquiry officer are based on evidence which he accepted as true."
The Supreme Court allowed the appeal and set aside the order passed by the Industrial Tribunal and answered the reference made to it in favour of the appellant, that is, the employer company. This decision of the Supreme Court also thus does not propose to lay down any concrete or inflexible rule that in case of simultaneous proceedings, such as, the departmental enquiry and the criminal proceeding the former should be stayed invariably. Inspite of observations regarding the desirability of the course to be adopted in certain circumstances the Supreme Court in that case maintained the order of dismissal passed in the departmental enquiry by the employer during the pendency of the criminal proceeding.
12. The learned trial court in this connection also relied upon the decision of the Supreme Court in Kusheshwar Dubey v. Bharat Coking Coal Limited, . The facts of that case as relevant for our purpose may be stated thus. On the ground of assaulting a Supervising Officer, an employee of the company was subjected to disciplinary proceedings and criminal prosecution. The employee brought an action in civil court, that is, that court of Munsif in which the civil court ordered stay of further proceedings in the disciplinary action till disposal of the criminal case. There was an appeal against that order but the appeal was dismissed. The matter then came up before the High Court in its revisional jurisdiction. The High Court however lifted the stay. The matter then went to the Supreme Court by special leave. It is indeed true that the Supreme Court reversed the order of the High Court and restored the trial court's order of stay as affirmed in appeal, in view of the facts and circumstances of the case. But the significant thing to be noted in this connection is that although invited to settle the law in a strait jacket formula as judicial opinion appeared to be conflicting, the Supreme Court observed that the court did not propose to heard such a step as that would create greater hardship and individual situations may not be available to be met and thereby injustice was likely to ensue. The Supreme Court took notice of the judicial pronouncements in the matter including its own decision in Delhi Cloth and General Mills Limited and Tata Oil Mills Company Limited (both, supra). The Supreme Court however in paragraph 3 of Kusheshwar Dubey v. Bharat Coking Coal Limited (supra) observed thus:-
"We would like to point out that there are also authorities in support of the position that there is nothing wrong in parallel proceedings being taken--one by way of the disciplinary proceeding and the other in criminal court."
After quoting certain observations from its earlier decisions in Delhi Cloth and General Mills , Tata Oil Mills
and Jang Bahadur Singh v. Baijnath Tatwari
, the Supreme Court in the decision in Kusheshwar
Dubey (supra) in paragraph 6 observed thus :-
"The view expressed in the three cases of this court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent/employee to seek such and order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of proceedings would then receive judicial consideration and the court will decide in the given circumstances in a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast strait jaket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline."
It is therefore patent and cleat that the Supreme Court in Kusheshwar Dubey (supra) has, in unambiguous language, on review of its earlier decisions, clearly held that it is neither possible nor advisable to lay down any hard and fast strait jacket formula in this matter valid for all cases and for general application. The law has been made clear that there is no legal bar for simultaneous proceedings being taken but the question whether in any particular case, a departmental proceeding is to be stayed till disposal of the criminal case has to be decided on the facts and circumstances obtaining in the particular case. As we have seen, inspite of invitation to lay down the law in a strait Jacket formula in the matter, the Supreme Court in Kusheshwar Dubey (supra) has refused to evolve any such hard and fast formula. The matter therefore is left to the judicial discretion of the court to be exercised in the facts and circumstances in each case.
13. In this connection the learned trial court has also referred to the decision of the Supreme Court in M.S. Sheriff v. State of Madras, . The facts of the case as relevant for our present
purpose may be stated thus. There were prosecutions in criminal court for perjury under Section 193 IPC against two Sub-Inspectors of Police for denying the allegation of wrongful confinement and also there were civil suits against them for damages for wrongful confinement. In all these matters a common question involved was whether there was wrongful confinement. The question that was raised before the Supreme Court in that back-ground was that the simultaneous prosecution of those matters, namely, the prosecutions started for perjury and the civil suits for damages for wrongful confinement, would embarrass the accused. The Supreme Court however felt, as recorded in paragraph 14 of the said decision (ibid), that the simultaneous prosecution of the criminal proceedings and the civil suits would embarrass the accused and the court therefore had to consider the question of determining as to which should be stayed. In that decision the Supreme Court then recorded thus :-
"15. As between civil and 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. 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 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, civil case or the other criminal proceedings may be so near its end as to make if inexpedient to stay it in order to give precedence to a prosecution order under Section
476. But in this case we are of the view that the civil suit should be stayed till the criminal proceedings have finished."
It is therefore evident that here also the Supreme Court refused to lay down any hard and fast rule in the matter. The matter has been rather left to be decided in the particularities of the facts' and circumstances in each case. It is also to be pointed out here that the difference between the factual aspects in the case of M.S. Sheriff v. State of Madras (supra) and the present case cannot be unnoticed. In the case of M.S. Sheriff the civil suits were filed for damages for wrongful confinement whereas in the suit involved in the present matter the plaintiff prayed for delivery of shares or for the value thereof for which the plaintiff allegedly made advance payments to the defendants. If the Plaintiffs claim is true, then it can be easily appreciated that the plaintiff will have to continue to suffer undue monetary deprivation of fund to the extent of an amount around a crore of rupees which was parted with by the plaintiff' earlier. Such financial deprivation rooted in depletion of fund is not suffered in a case where the plaintiff' files a suit for damages for wrongful confinement. The former is a case of recoupment of fund already spent while the latter is a case of enrichment of fund. Stay in a case of the former nature is likely to cause greater hardship to the plaintiff than in a case of the latter nature, for obvious reason. Thus factually also the Supreme Court decision in M.S. Sheriff v. State of Madras (supra) is clearly distinguishable.
14. In Kusheswar v. Bharat Coking Coal Limited (supra) the concerned proceedings were a departmental enquiry and a criminal proceeding and not a suit and a criminal proceeding as is the case here in the present case. The learned Advocate for the respondents submitted that in the said Supreme Court decision in Kusheswar Dubey (supra) the Supreme Court took note of the fact that criminal action and the disciplinary proceedings were grounded upon same set of facts and since in the present case also the civil suit and the criminal proceeding are based on same set of facts the civil suit should be stayed. In our opinion the fact that the two actions were based on the same set of facts were indeed not intended by the Supreme Court to be a universal deciding factor for determining that the departmental proceeding or the suit must be stayed, firstly because the question of stay in such a case will arise only where the two proceedings are based on same set of facts and if that were the universal deciding factor the Supreme Court would have laid down the rule that in all such cases the departmental proceeding or the civil suit will have to be stayed till the disposal of the criminal case because they are based on same set of facts as it must always be in cases of this nature which the Supreme Court did not do and secondly because the Supreme Court rather specifically recognised the legal position that there is no legal bar for simultaneous proceedings. Having regard to what has been discussed above we are of the opinion that the position of law as enunciated by the Supreme Court in its various discussed above does not require mandatory that the civil suit in the present matter must be stayed. We are also of the opinion that in considering the question whether the civil suit should be stayed in the present matter the monitory deprivation of fund which the plaintiff has been allegedly suffering should not be lost sight of, and indeed it is desirable that the plaintiffs claim also should be decided early on trial, one way or the other without shunting it to the dumping ground of immobility. We are therefore of the opinion that the court in this case should be slow in leaning towards a decision to stay the civil suit. Rather both civil and criminal actions may be allowed to proceed simultaneously in the present matter.
15. The learned trial Judge, it seems, was also very much impressed by the argument advanced on behalf of the defendants that if the suit proceeded, in that event the defendants would have to disclose in the suit their defence in the criminal proceedings and that would have violated their constitutional right to maintain silence. In our opinion this view is also not correct. It should be noted here that what has been supposed to be a right to maintain silence as a constitutional right is in fact not wholly so. Apart from what is sliced out in the constitutional protection against testimonial compulsion contained as fundamental right in Article 20(3), the right of the accused to maintain silence in criminal proceedings is not a constitutional right, is only a privilege arising out of the jurisprudential principles generally recognised in the administration of criminal justice. To speak of 'the right to maintain silence' is only a concise way of expressing the ordinary mandate of law that in criminal trial the accused need not prove his innocence and it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. In that sense, beyond the protection against testimonial compulsion as guaranteed under Article 20(3) of the Constitution, the right to maintain silence has no constitutional complexion and it is only an ordinary privilege in law available to the accused which also is not absolute in all circumstances. Although the general principle of the criminal law as administered in this country is that the accused need not prove his innocence and it is for the prosecution to prove the guilt of the accused beyond reasonable doubt, yet there are many provisions of law in which the burden is placed upon the accused to prove his innocence. As for example, if in a trial for a charge of murder the accused takes the plea of the right of private defence, if is for him to prove the plea. Similarly there are provisions in the Prevention of Corruption Act, 1947, Railway Property (Unlawful Possession) Act, 1966, Narcotic Drugs and Psychotropic substances Act, 1985, etc. under which in certain circumstances the burden of proof shifts upon the accused. Similarly Sections 111A, 113A, 113B, 114A of the Evidence Act also, by raising certain presumptions, in certain circumstances shift the burden on the accused to prove his innocence. We are pointing out all these things only to emphasise that the right to maintain silence, apart from the limited scope of Article 20(3), is not a constitutional right but is only a jurisprudential privilege which also has been curtailed in a vide variety of situations by the statutory provisions of law. As we have already seen there is no question of violation of Article 20(3) if the suit proceeds simultaneously with the criminal proceeding and it therefore must also be held that there is no question of violation of the right to maintain silence merely by reason of allowing the civil suit to proceed in its own course.
16. In passing the order of stay in the civil suit the learned trial judge, it seems, was greatly influenced by an idea that if the plaintiff succeeded in the civil suit that would automatically lead to the conviction of the defendants accused persons in the criminal case without any further trial by the criminal court. The learned trial Judge in the impugned judgment observed thus :-
"There is therefore total identity of the subject matter and by reason of the position of law as above, it appears that in the event a decree is passed against the petitioner herein, conviction under Section 409 of the Indian Penal Code is almost a certainty. Incidentally it is to be noted that in criminal jurisprudence every person is deemed to be innocent unless contrary is proved. The onus, lies, therefore, heavily on the prosecution to prove the complicity of the accused persons in the absence of which the prosecution will fail. But in the event of a judgment in favour of the plaintiff herein, such a procedural law will be given a complete go-by which in my view law courts ought not to encourage. ****** By reason of the finding of the civil court, the prosecution would not have to prove or adduce any further evidence which is a complete negation as regards criminal jurisprudence. Would the court allow such a state and continue with the suit ? In my view to sub-serve the ends of justice the answer ought to be in the negative. ****** Law provides strict compliance in order to bring home the charge under Section 409 of the Indian Penal Code. Non-compliance of any of the requirements of law would have the consequence of an acquittal but in the event of there being a finding by the civil court in favour of the complaint plaintiff' all such pleas will be rendered nugatory."
In support of his such view the learned trial Judge has also referred to certain observations made by another learned single Judge of this court In company application No. 47 of 1975 connected with company petition No. 40 of 1973 In re: Property Company Private Ltd. and Ors. v. Khodabad Rustom Krani. We are however unable to subscribe to the view of the learned trial Judge that a decree in the civil suit in this matter will automatically lead to a conviction of the accused respondents under Section 409 IPC in the criminal case without the safeguards of a criminal trial. It is rather to be pointed out that the ingredients of an offence under Section 409 IPC include dishonest misappropriation or dishonest use or disposal of the concerned property in terms of the relevant provisions of the Indian Penal Code. Where as for a decree in the civil suit those aspects are not required to be established, the Ingredients of an offence under Section 409 IPC being different, there is no scope of thinking that such a decree in the civil suit will be itself establish an offence under Section 409 IPC. Moreover it is a well-known principle of law that in a civil action a party has to prove his case only by such evidence as will answer the test of preponderance of probability. But in criminal case the requirement of proof is of higher standard, namely, the standard of proof beyond all reasonable doubt. Therefore there is no scope of thinking that a mere decree in the civil suit or the decision of the civil court will automatically entitle the prosecution to ask for an order of conviction and sentence against the accused in the criminal trial on the basis of such decree or decision without leading any evidence on the factual aspect of the matter. Rather the position of law is absolutely clear that in the criminal trial the criminal court will have to consider the matter in the light of the evidence that may be adduced before it and its decision must rest on such evidence and not on a civil court decision which the complainant party may in the mean time obtain against the accused defendants.
17. The learned trial Judge, it seems, was awayed in the matter by the following observation of the Supreme Court in Karamchand Ganga Prosad v. Union of India, : 'It is a well established
principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true. The learned Advocate for the appellants however referred to an order dated the 12th April 1994 passed by Ruma Pal, J. in suit No. 315 of 1993, annexure-I to the interlocutory application for injunction filed in the present appeal. Ruma Pal, J., it seems, did not agree with the view expressed by the learned trial Judge when the decision now under appeal was cited and the learned Judge referred to the learned Chief Justice for consideration of the matter by a larger Bench. Ruma Pal, J., is of the view that the observation of the Supreme Court in Karamchand Ganga Prosad (supra) that it is a well established principle of law that the decisions of the civil courts are binding on the criminal courts is only an obiter dictum and is therefore not binding. The learned Advocate for the appellant also argues before us in that line. We however need not examine in this case whether the said observation of the Supreme Court in Karamchand Ganga Prosad (supra) is a mere obiter dictum, as in our opinion the matter can be dealt with even without entering into the question of obiter dictum. It is now a settled law that an observation of the court must be understood in the context in which the same has been made, it is also a cardinal principle of construction that all observations of the court must be construed in a harmonious way, avoiding conflict between the different decisions of the Supreme Court as far as practicable. Now let us see what were the facts involved in Karamchand v. Union of India (supra). Certain consignments of maize were transported by rail from Haryana to Howrah. At the destination station the consignment was however not delivered to the consignee by the railway authorities on the ground that the export was illegal in view of the restriction imposed by certain movement control order issued by the State Government under the Essential Commodities Act, 1955. For such illegal export in violation of the control order criminal proceedings were also started. During the pendency of the criminal proceedings a writ petition was filed in the High Court for release of the consignments on the ground that the ban on export imposed by the control order had been already lifted by the Government before the export was made. The principal questions that arose for decision before the High Court were whether the ban on export had been lifted by the State Government and if so, was the State Government competent to do so. If the ban was held to have been validly lifted, in that case if would follow as a necessary corollary that the refusal on the part of the railways to deliver the maize exported was illegal and the authorities were not competent to seize or forfeit the maize exported and the prosecutions would become unsustainable. The High Court however rejected the writ petition on the sole ground that in view of the pendency of the criminal proceedings it was inappropriate for the High Court to pronounce on the question arising for decision in the writ petition. In that context the Supreme Court however observed thus in paragraph 4 (ibid) :--
"In our opinion the High Court seriously erred in coining to this conclusion. If the appellants are able to establish their case that the banon export of maize from the state of Haryana had been validly lifted all the proceedings taken against these who exported the maize automatically fall to the ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well establish principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true."
The Supreme Court directed the High Court for disposal on merits. It is therefore evident that basically the only question involved in the writ petition before the High Court was whether there was any legal ban prevailing in the matter of export of maize at the relevant time. It may be appreciated that the question involved is primarily and basically a question of law and therefore any decision of the High Court on this all important question of law governing both the writ petition and the criminal proceedings would have a binding effect, either direct or persuasive, on the criminal court. It is in this context the Supreme Court observed that the decisions of the civil courts are binding on the criminal courts. If the context is borne in mind there will be no difficulty in appreciating the true import of the observation of the Supreme Court as made in the said decision in Karam Chand v. Union of India. That observation obviously was not made for general application and has to be understood in the context in which the same was made, inasmuch as we will find that there are some other observations of the Supreme Court and the Privy Council on the point, all of which must and should be construed in a harmonious way, if possible. It is also to be mentioned here that which relying upon the said observation of the Supreme Court in Karam Chand v. Union of India (supra) the learned trial Judge missed the fact that in the said decision the Supreme Court rather directed the civil court, namely, the High Court to decide the matter notwithstanding the pendency of the criminal proceedings. But in trying to apply the said observations of the Supreme Court to the facts of the present case the learned trial Judge unwittingly did just the opposite of what was done by the Supreme Court in the said decision. While the Supreme Court allowed simultaneity of proceedings with direction upon the High Court to decide the matter so that such decision might be binding on the criminal court, the learned trial Judge being oblivious of that rather stayed the civil suit pending in the High Court contrary to what should have been done if one would have discreetly intended to follow the said decision of the Supreme Court.
18. On the question as to whether the decisions of the civil courts are always binding on the criminal courts, we would first refer to the decision of the Privy Council in Emperor v. Nazir Ahmad . There were two actions, one civil and one criminal. In the civil action, application was made for removal of receiver appointed for the concerned property on the ground of fraudulent and dishonest activity. In the criminal action against the receiver similar charges were also made. In the civil action the matter came up to the High Court and the High Court held that the charges were without justification. That decision was however in connection with the civil action. In that connection the Privy Council observed thus at page 22 (ibid):--
"It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same or similar allegations. ******* .............. it is the duty of a criminal court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding upon it."
Therefore this Privy Council decision makes it clear that finding on a question of fact arrived at by a civil court is not binding on a criminal court in a criminal prosecution where the criminal court is required to decide the same question of fact. There is no reason to suppose that the Supreme Court In its decision In Karam Chand v. Union of India (supra) wanted to law down any different proposition of law deviating from the proposition earlier recognised by the Privy Council. As we have already noted, what the Supreme Court in Karam Chand (supra) wanted to impress upon is that where the question is basically and primarily a question of law required to be decided both by a criminal court in a criminal proceeding and by the High Court in a writ proceeding, the decision of the High Court on such point of law will be binding as a direct or persuasive authority upon a criminal court of a lower level.
19. In this connection the decision of the Supreme Court in M.S Sheriff v. State of Madras, (supra) is also very relevant. It may be mentioned here that this decision of the Supreme Court is a five-Judge bench decision, whereas the subsequent decision of the Supreme Court in Karam Chand v. Union of India
(supra) is a two-Judge bench decision. Even assuming that there is any conflict of views between the said two decisions of the Supreme Court, leaving aside the earlier decision of Privy Council, the larger bench decision of the Supreme Court In M.S Sheriff must prevail over the decision of the Supreme Court in Karam Chand Ganga Prosad. As we have also quoted earlier the Supreme Court in paragraph 15 of its decision in M.S. Sheriff v. State of Madras (supra) has made it abundantly clear that as between the decisions of the civil and criminal courts on the same matter there may be conflict between the two and the law does not make the decision of one court binding on the other. That being so there is no scope of thinking that the subsequent two-Judge bench of the Supreme Court wanted to lay down any different proposition in Karam Chand v. Union of India (supra) superseding the earlier decision of the larger bench of the Supreme Court in M.S. Sheriff v. State of Madras as well as of the Privy Council in Emperor v. Nazir Ahmad. The concerned observations of the Supreme Court made in Karamchand v. Union of India must be understood, therefore, in the limited sense in which such observation was made in the contextual background of the case and it has no scope of general application for reasons which we have discussed earlier.
20. The learned Advocate for the respondents also referred to the recent decision of the Supreme Court in V. M. Shah v. State of Maharashtra, wherein it was observed by the Supreme Court inter alia that the findings recorded by the criminal court stood superseded by the findings recorded by the civil court and there by the findings of the civil court got precedence over the findings recorded by the criminal court. In our opinion the relevant observation of the Supreme Court in that decision also will have to be understood not in a sense permitting its blanket application in all circumstances but only in the particular sense that responds to the circumstances in which such observation was made. The facts involved in the said decision were like this. The appellant therein had joined the services of M/s. Rallies India Ltd on March 10, 1965. He had occupied a particular residential flat. He resigned on 15th July, 1986. The said company initiated criminal proceedings in January, 1987 against the appellant under Section 408 1PC and Section 630 of the companies Act for the continued occupation of the said flat by the appellant. The Magistrate found the appellant guilty of offence under Section 630 of the companies Act and directed restitution of the flat. On appeal the sessions Judge altered the sentence while confirming the conviction. The High Court confirmed the same against which the Supreme Court was moved. Pending criminal proceeding the said company also filed a suit in small Causes Court for eviction of the appellant on the plea that the company had tenancy right in the flat and consequent upon joining the service, the appellant was inducted into possession thereof and on his resignation he ceased to be an employee of the company and was therefore enjoined to deliver possession of the flat to the company which he did not do. In the suit the case of the appellant/defendant was that there was no Jural relationship between the appellant and the company and he was not in occupation of the premises in his capacity as an employee of the company and that the company had surrendered the tenancy right in the flat to the owners and thereafter the appellant occupied the flat and was in possession thereof as a direct tenant under the owner-landlord. In the suit the trial court held that the company failed to prove their tenancy right in respect of the suit premises and that the company had not given the premises to the appellant under leave and licence agreement as pleaded by them in the plaint. The trial court also held that the appellant was a monthly tenant of the premises under the landlord pleaded by him and accordingly the suit was dismissed. It is in this background the Supreme Court in paragraph 11 of the said decision in V. M. Shah v. State of Maharashtra (supra) observed thus :--
"As seen that Civil Court after full dressed trial recorded the finding that the appellant had not come into possession through the company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like Section 630."
For appreciating the import of the said observations of the Supreme Court the back-ground of the case will have to be kept in view. Section 630 of the companies Act prescribes penalty for wrongful withholding of property. It provides that if an employee of a company wrongfully obtains possession of any property of the company or having such property in his possession wrongfully withholds it or knowingly applies it to unauthorised purposes, in that case he becomes liable to punishment and the court is also empowered to direct the employee to deliver up or refund such property. In dealing with a case under Section 630 of the Companies Act the criminal court is primarily concerned with the question of possession of the concerned property including the quality of such possession. But it is likely that in certain circumstances for the purpose of deciding the question of possession, the question of title may also got raised, as happened in the case under consideration of the Supreme Court in V.M. Shah v. State of Maharashtra (supra) where the appellant claimed independent title as tenant in the concerned premises under the owner landlord. It is a cardinal principle of law that ordinarily the question of title or a question of civil nature is for the civil court to decide in view of Section 9 of the Civil Procedure Code, 1908. The criminal court is not competent to decide a dispute of purely civil nature or a question of title involved in any dispute. Even if in any criminal case the criminal court incidentally comes across any question of title and forms and opinion about the same for the purpose of the criminal case such opinion must be only of an ad hoc nature, as the criminal court is not competent to declare title or finally decide any question of title or to decide upon a dispute of purely civil nature. Therefore whenever any bona fide question of title is raised in connection with any dispute relating to the quality of possession in a criminal court, any opinion of the criminal court regarding the question of tille will be only of a provisional of ad hoc nature and will be subject to the decision of a competent civil court in the matter. It is only in such circumstances or where the dispute is of a purely civil nature that the finding of the civil court will get precedence over the finding of the criminal court and that is also the clear import of the decision of the Supreme Court in V.M. Shah v. Slate of Maharashtra (supra). This principle is also reflected and illustrated in the provisions of Section 456 of the Criminal Procedure Code, the Sub-section (1) of which empowers the criminal court to restore possession of immovable property in certain circumstances and at the same time makes it clear in Sub-Section (4) that no such order of the criminal court will prejudice any right or interest of any person in such property which such person may be able to establish in a civil suit.
21. In this connection reference may also be made to the decision of the Bombay High Court in Damodar Das Jain v. Krishna Charan Chakraborty (1985) 57 Com. Cases 115 where it is held that Section 630, Companies Act applies only to cases where there is no bona fide dispute that the property withheld is the property of the company and that the Section does not apply in the case of a bona fide dispute of a purely civil nature regarding title to property and the Magistrate should not venture to determined such a dispute under Section 630 of the Companies Act. This decision of the Bombay High Court that disputes of civil nature cannot be tried in a criminal court has been affirmed by the Supreme Court in Damodar Das v. Krishna Charan (1990) 67 Com. Cases
564. In that decision the Supreme Court was of the view that two questions which were involved, namely, whether the company could be said to be a tenant of the flat and whether after the expiry of the period of licence granted to the company, the company could still be said to be licensee, were both complicated questions of civil nature and, therefore the High Court was right in holding that the Magistrate had no jurisdiction to decide them. In view of the aforesaid decisions it is evident that in such circumstances where the decision of the criminal court depends on the decision on a disputed question of civil nature relating to title, that the decision of the civil court on such question of title binds the parties even in criminal proceedings. In view of the position of law that the criminal court has no jurisdiction to decide a dispute of civil nature relating to title which is for the competent civil court to decide, the decision of a competent civil court relating to a question of title will be relevant under Section 40 of the Evidence Act in a criminal proceeding between the same parties in which case the decision of the civil court relating to title being binding on the parties, also become binding on the criminal court in a limited sense. But it is not that all sorts of decisions of the civil court are binding on the criminal court. Under Section 41 of the Evidence Act a final judgment or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction in certain circumstances not only becomes relevant as evidence in a different proceeding but also serves as a conclusive proof of certain facts mentioned therein. Under Section 42 of the Evidence Act judgment are relevant if they relate to matters of a public nature relevant to the enquiry, Section 43 provides that except as mentioned in Section 40, 41 and 42 judgments are irrelevant unless the existence of such a judgment is a fact in issue or is relevant under some other provision of the Evidence Act.
question was raised whether previous judgment of criminal court convicting the son for murder of the testator father would be relevant in the subsequent proceeding for revocation of grant of probate. There also a question that fell for consideration was whether the son of the testator murdered him. It was held by the Supreme Court that it could not be assumed on the basis of the previous Judgment of the criminal court convicting and sentencing the son for murder of his father that the son was the murderer of the testator and that the Judgment of the criminal court was relevant only to show that there was such a trial resulting in the conviction and sentence of the son but it was not evidence of the fact that the son was the murdered of the testator which question must be decided buy the probate court on evidence.
23. As regards issue estoppel which is comparatively a recent development in the arena of administration of criminal Justice the matter has been considered by the Supreme Court in several decisions, such as, Pritam Singh v. State of Punjab, Manipur
, Mohar Rat v. State of Bihar, . In
Masud Khan v. State of U.P., the principle of issue estoppel has been described thus. Where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. It has however been clearly laid down by the Supreme Court in the said decision that the principle of issue estoppel applies to two criminal proceedings. It is therefore evident that a decision of the civil court will not be binding on the parties In a criminal proceeding unless the decision is of such nature as mentioned in Section 41 of the Evidence Act or it is a decision of a civil court between the same parties concerning a dispute of civil nature relating to question of title. Now taking a consistent view of the provisions of law including the Sections 40 to 43 of the Evidence Act and the different decisions of the Supreme Court discussed above it can be stated by way of summarisation that ordinarily a civil court decision is not bending on the criminal court nor is a criminal court decision binding on the civil court. A decision of a competent court in respect of any matter mentioned in Section 41 of the Evidence Act is however conclusive proof of certain facts mentioned therein and to that extent such decision is binding everywhere. A decision of a civil court relating to title is however binding on the parties and in that sense such decision of a competent court cannot be reopened as between the same parties and therefore a question of title which has been decided by a competent civil court cannot be reagitated in a criminal proceeding between the same parties inasmuch as it is the civil court which is competent to decide title and not the criminal court. Decisions on other matters which will fall within the jurisdiction of the criminal court to determine for the disposal of any particular criminal case will be a matter for the criminal court to decide on the basis of evidence that may be adduced before it irrespective of whether such question was earlier decided by any civil court in any civil action. In view of the position of law as discussed above there is therefore no question of apprehending that a decision of the civil court in the suit in respect of the present matter will automatically lead to a conviction of the accused In the criminal case without trial by the criminal court and irrespective of the question whether the elements of the offence under Section 409 IPC have been satisfied in this case, not withstanding any decree in the civil suit even if passed In favour of the complainant appellant. It is also to be noted here that in the particular circumstances where a decision of the civil court becomes binding on the criminal court, as discussed above, and if actions are pending in both civil and criminal courts in such a situation, it is only fit and proper that either the criminal case pending in the criminal court may be stayed till disposal of the civil case or both the civil case and the criminal case may be allowed to proceed simultaneously, but there must not be a stay of the civil case in such a situation. Even otherwise where the decision in the civil case is not binding in the criminal case, the civil case should not be stayed for light grounds on mere asking and stay should be granted only in exceptional circumstances for weighty reasons.
24. From the discussions so far made, we have seen that the simultaneous continuance of the proceedings, be they civil suit and criminal case of departmental proceeding and criminal case, is outside the pale of Article 20(3) of the Constitution. It is also the law that there is no constitutional or legal bar in simultaneous proceedings. The questions whether in any particular case the civil suit or the departmental proceeding, as the case may be, should be stayed during the pendency of the criminal proceeding is a matter for consideration in the facts and circumstances of individual case. As we have seen, in our present case the appellant plaintiff has. In the civil suit, prayed for relief in respect of a huge amount of money allegedly advanced to the defendants respondents. Taking into consideration the facts and circumstances including the hardship necessarily involved in deferring the trial of the suit thereby delaying relief of recovery of the fund already advanced, if the plaintiff is really entitled to such relief in law, we are of the opinion that it will be a lop-sided step to stay the civil suit till disposal of the criminal proceedings. Accordingly, we are of the opinion that in this case the learned trial court should not have stayed the civil suit and the impugned order of stay was not justified. As regards the question of embarrassment of the defendants accused persons it is to be noted that even assuming that there is any question of embarrassment in the sense that if the respondents defendants submit any written statement in the suit and/or examine themselves as witness in the suit, the same may be subsequently used against them in the criminal proceeding, the stay of the civil suit need not be the only panacea. In appropriate circumstances the court may while refusing slay of the civil suit or departmental proceeding, as the case may be, direct that any written statement or defence that may be submitted by the accused in the suit or the departmental proceeding and the evidence that may be given by him in such suit or proceeding shall not be proved by the prosecution in the criminal proceeding pending against the accused. Such benefit where extended in favour of the accused will be in addition to the benefit available under the proviso to Section 132 of the Evidence Act. Such rider imposed by court in appropriate circumstances without staying the suit or departmental proceeding that the written statement or defence filed and evidence given by the accused In the suit or departmental proceeding shall riot be proved in the criminal proceeding against him, will meet the ends of justice in an even handed way without causing any prejudice to either parties. Incidentally it may be mentioned here that even in T.G. Gaokar v. R.N. Shukla, (supra) in a more or less analogous situation the Supreme Court while refusing to stay the adjudication proceedings under the Customs Act, however took note of the fact in paragraph 6 of the said decision that the Counsel for the customs authorities gave an undertaking in the High Court that they would not use in any criminal proceedings the statement, if any, that might be made by the appellant during the course of the adjudication proceedings.
25. In the present case for reasons elaborately discussed by us we have found that the learned trial court was not justified in passing the impugned order of stay of the civil suit. We may also mention here that the very recent decision of the Supreme Court in State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. and Ors. 1996(1) Orissa Law Reviews (SC) 411: Judgments, today 1996(3) SC 162 squarely sustains our view. That was an appeal before the Supreme Court by special leave against an order of the High Court of Rajasthan. There were suits for recovery of certain amounts in respect of which the cheques got bounced and also simultaneous criminal proceedings under Section 138 of the Negotiable Instrument Act and Section 420 IPC. The High Court stayed the proceedings of the civil suits pending disposal of the criminal cases. The Supreme Court in appeal in the said decision observed thus:-
"3. It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal court would deal with offence punishable under the Act. On the other hand, the courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of power. We have never come across stay of any civil suits by the courts so far. The High Court of Rajasthan is only and exception to pass such orders. The High Court proceeded on wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law."
Our view being wholly sustained by the aforesaid decision of the Supreme Court which is perhaps the latest decision in the matter, we will set aside the impugned judgment and order and shall direct that the suit do proceed in accordance with law. We however do not propose to consider further whether we should place any rider that the written statement and evidence of the respondents defendants in the suit shall not be allowed to be proved against them in the criminal proceedings against them inasmuch as at the concluding stage of the argument it has been submitted by the learned Advocate for the appellant, on written instruction, that the concerned criminal proceedings are no more pending and the police submitted final report as recorded by the learned Chief Metropolitan Magistrate in his order No. 29 dt. 24.4.96. In the result the appeal succeeds and is hereby allowed with cost. The impugned judgment and order of the learned trial court is hereby set aside and stay vacated. We will only hope that the suit may now be disposed of by the learned trial court in accordance with law with due expedition.
26. On the submission of the learned Advocate, appearing for both the sides time to file the written statement in the suit is extended for a period of six weeks and discovery also will be made within two weeks thereafter.
27. All parties are to act on a signed copy of the operative part of this judgment on the usual undertaking.
Basudeva Panigrahi, J.
28. I agree.