1. The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-original complainant to quash and set aside the impugned order passed by the learned Sessions Judge, Mehsana dated 21/10/1999 in Criminal Revision Application No. 105/1998 by which on the purshis submitted by the concerned parties, the learned Sessions Judge has passed an order to stay the proceedings of Criminal Case No. 1182/1992 pending in the Court of learned Judicial Magistrate First Class, Visnagar till final disposal of Regular Civil Suit No. 130/1993 pending between the parties. He has also prayed to quash and set aside the order passed by the learned Magistrate below Exh. 35 in Criminal Case No. 1182/1992 by which the learned Magistrate dismissed the said application submitted by respondent no. 2- original accused-revisionist, which was submitted to discharge him.
2. The facts leading to the present Special Criminal Application in a nutshell are as under;
2.1. The petitioner-original complainant filed a private Complaint in the Court of learned Judicial Magistrate First Class, Visnagar for the offence punishable under Sections 464, 465, 467, 468, 471, 474, 477, 196, 209 and 109 of the Indian Penal Code against respondent no. 2-original accused. The learned Magistrate passed an order for police investigation and sent the said Complaint for police investigation under Section 156(3) of the Code of Criminal Procedure, which was numbered as C.R. Nos. I 8/1989 and 9/1989 before the Visnagar Police Station. It appears that after the investigation was concluded, the accused persons, inclusive of respondent no. 2, came to be chargesheeted for the offence alleged and the case was registered as Criminal Case No. 1182/1992 in the Court of learned Judicial Magistrate First Class, Visnagar. It appears that respondent no. 2-original accused no. 2 herein submitted an application, Exh. 35 in Criminal Case No. 1182/1192 requesting to discharge him and by order dated 20/08/1998 the learned Judicial Magistrate First Class, Visnagar dismissed the said application, Exh. 35 and refused to discharge respondent no. 2- original accused no. 2. It appears that being aggrieved and dissatisfied with the order passed by the learned Judicial Magistrate First Class, Visnagar dated 20/08/1998 below Exh.
35 in Criminal Case No. 1182/1992 respondent no. 2-original accused no. 2 preferred Criminal Revision Application No. 105/1998 before the learned Sessions Court, Mehsana. It appears that in the said Revision Application compromise purshis, Exh. 20 was submitted in which it was agreed to quash and set aside the order passed by the learned Judicial Magistrate First Class, Visnagar below Exh. 35 in Criminal Case No. 1182/1992 and to stay further proceedings of Criminal Case No. 1182/1992 till final disposal of Regular Civil Suit No. 130/1993 pending in the Court of learned Civil Judge (Junior Division), Visnagar and the learned Sessions Judge, Mehsana without appreciating the fact that as such there was no prayer before the learned Magistrate to stay further proceedings of Criminal case till final disposal of the civil suit pending between the parties solely on the consent purshis Exh. 20 without even considering the order passed by the learned Judicial Magistrate First Class, Visnagar dated 20/08/1998 passed below Exh. 35 in Criminal Case No. 1182/1992 quashed and set aside the order passed by the learned Judicial Magistrate First Class, Visnagar dated 20/08/1998 below Exh. 35 in Criminal Case No. 1182/1992 and also passed an order to stay further proceedings of Criminal Case No. 1182/1992 pending in the Court of learned Judicial Magistrate First Class, Visnagar till final disposal of Regular Civil Suit No. 130/1993 pending in the Court of learned Civil Judge (Junior Division), Visnagar and disposed of the aforesaid Criminal Revision Application No. 105/1998 accordingly. Being aggrieved and dissatisfied with the impugned order passed by the learned Sessions Judge, Mehsana dated 21/10/1999 in Criminal Revision Application No. 105/1998 the petitioner-original complainant has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
3. Shri R.C. Jani, learned advocate appearing on behalf of the petitioner-original complainant has vehemently submitted that as such the petitioner-original complainant was not signatory to the consent purshis, Exh. 20 in Criminal Revision Application No. 105/1998. It is submitted that as such the said consent purshis was signed by respondent no. 2-original accused, who is a practicing lawyer. It is submitted that in any case and even otherwise the learned revisional Court could not have directed to stay further proceedings of Criminal Case No. 1182/1992 till final disposal of Civil Suit pending between the parties as that was not even prayed before the learned trial Court. It is submitted that as such the Revision Application was by respondent no. 2-original accused no. 2 against the order passed by the learned Judicial Magistrate First Class, Visnagar below Exh. 35 in Criminal Case No. 1182/1992 dismissing the discharge application submitted by respondent no. 2. It is submitted that even the order passed by the learned Magistrate passed below Exh. 35 in Criminal Case No. 1182/1992 would not have been quashed and set aside by the learned revisional Court even if there was consent between the parties. It is submitted that when after having found that there is a prima facie case against the them for which they were chargesheeted and when discharge application was dismissed by the learned Magistrate, even with the consent of the petitioner-original complainant, the learned revisional Court could not have finally decided the Revision Application. It is submitted that as such nothing has been decided by the learned revisional Court on merits of the order passed by the learned Magistrate below Exh. 35.
4. Shri Jani, learned advocate appearing on behalf of the petitioner-original complainant has further submitted that even the order passed by the learned revisional Court directing to stay further proceedings of Criminal Case No. 1182/1992 pending in the Court of learned Judicial Magistrate First Class, Visnagar pending civil suit is contrary to the law laid down by the Hon'ble Supreme Court in catena of decisions inclusive of the decision of the Hon'ble Supreme Court in the case of Kamladevi Agarwal Vs. State of West Bengal & Ors. reported in 2002 (1) SCC 555 and in the case of Vitoori Pradeep Kumar Vs. Kaisula Dharmaiah & Ors reported in 2002 (9) SCC 581 and other subsequent decisions and, therefore, it is submitted that the order passed by the learned revisional Court to stay further proceedings of Criminal Case No. 1182/1992 till final disposal of Civil Suit cannot be sustained on merits and, therefore, it is requested to quash and set aside the same. Making the above submission and relying upon the above decisions, it is requested to quash and set aside the impugned order passed by the learned Sessions Judge, Mehsana in Criminal Revision Application No. 105/1998.
5. Though served, nobody appears on behalf of respondent no. 2-original accused no. 2.
6. Shri L.B. Dabhi, learned APP appearing on behalf of respondent-State has fairly conceded that the impugned order passed by the learned revisional Court quashing and set aside the order passed by the learned trial Court below Exh. 35 in Criminal Case No. 1182/1992 as well as staying further proceedings of Criminal Case No. 1182/1992 till final disposal of Civil Suit No. 130/1993 cannot be sustained and the same deserves to be quashed and set aside.
7. Heard Shri Jani, learned advocate appearing on behalf of the petitioner-original complainant and Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State and considered the impugned order passed by the learned Sessions Judge, Mehsana in Criminal Revision Application No. 105/1998. At the outset, it is required to be noted that Criminal Revision Application No. 105/1998 before the learned Sessions Court, Mehsana was preferred by respondent no. 2-original accused no. 2 challenging the order passed by the learned Judicial Magistrate First Class, Visnagar below Exh. 35 in Criminal Case No. 1182/1992 in dismissing the said discharge application submitted by him. It is required to be noted that as such there was no prayer by respondent no. 2-original accused no. 2 before the learned Judicial Magistrate First Class, Visnagar to stay further proceedings of Criminal Case till final disposal of Civil Suit No. 130/1993. Still the learned Sessions Judge has passed the impugned order staying further proceedings of Criminal Case No. 1182/1992 pending in the Court of learned Judicial Magistrate First Class, Visnagar till Regular Civil Suit No. 130/1993 pending in the Court of learned Civil Judge, (Junior Division), Visnagar was finally decided and disposed of. It appears from the impugned order that the impugned order has been passed by the learned revisional Court solely on the consent purshis at Exh. 20 submitted in Criminal Revision Application No. 105/1998. Under the circumstances, when there was no such controversy before the learned revisional Court, the learned revisional Court, may be by consent of the parties, could not have and ought not to have directed to stay further proceedings of Criminal Case No. 1182/1192 till final disposal of Civil Suit No. 130/1993 pending in the Court of learned Civil Judge (Junior Division), Visnagar. Even otherwise, on merits also further proceedings of Criminal Case No. 1182/1992 could not have been stayed by the learned revisional Court till final disposal of civil proceedings. Considering the decisions of the Hon'ble Supreme Court in the case of Kamladevi Agarwal (Supra) and Vitoori Pradeep Kumar (Supra) even if the document in question is the subject matter of civil proceedings, criminal proceedings for the same is permissible. Under the circumstances, the impugned order passed by the learned Sessions Judge, Mehsana in Criminal Revision Application staying further proceedings of Criminal Case No. 1182/1992 till final disposal of Civil Suit No. 130/1999 pending in the Court of learned Civil Judge (Junior Division), Visnagar cannot be sustained and the same deserves to be quashed and set aside. It is required to be noted that the impugned order has been passed by the learned Judge, Mehsana solely considering the compromise purshis at Exh. 20 and not on merits.
8. Similarly, even the order passed by the learned revisional Court quashing and setting aside the order passed by the learned Judicial Magistrate First Class, Mehsana below Exh. 35 in Criminal Case No. 1182/1992 also cannot be sustained. It is also required to be noted that as such the learned Magistrate dismissed the application, Exh. 35 submitted by respondent no. 2-original accused no. 2, which was submitted to discharge him and without entering into the merits of the case solely on the compromise purshis, Exh. 20, the learned Sessions Judge, Mehsana has quashed and set aside the order passed below Exh. 35, which is not permissible. With the consent of the petitioner-original complainant (which is disputed) and respondent no. 2-original accused, without further entering into the merits of the case, the learned Sessions Court ought not to have quashed and set aside the order passed by the learned trial Court below Exh. 35. Under the circumstances, the impugned order passed by the learned Sessions Judge, Mehsana to quash and set aside the order passed by the learned trial Court below Exh. 35 also deserves to be quashed and set aside.
9. In view of the above and for the reasons stated hereinabove, the present petition succeeds and the impugned order passed by the learned Sessions Judge, Mehsana dated 21/10/1999 in Criminal Revision Application No. 105/1998 is hereby quashed and set aside and the learned Judicial Magistrate First Class, Visnagar is hereby directed to proceed further with Criminal Case No. 1182/1992 in accordance with law and on its own merits. Considering the fact that the Complaint is of the year 1989, the learned Judicial Magistrate First Class, Visnagar is hereby directed to give top most priority to the hearing of Criminal Case No. 1182/1992 and is directed to dispose of the same in accordance with law and on its own merits but not later than 31/12/2012. Rule is made absolute to the aforesaid extent.
(M.R. SHAH, J.) siji