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V.C Madhavan Nambiar & Others v. Bharathan & Others
Summary of Opinion — C.C. 657 of 1993 (Judicial First Class Magistrate, Koothuparamba)
Factual and Procedural Background
Petitioners (six in number) are accused in C.C. 657 of 1993 before the Judicial First Class Magistrate, Koothuparamba. The first respondent presented a complaint alleging offences under sections 143, 147, 148, 447, 427, 379 and 506(2) read with section 149 IPC, claiming that the petitioners trespassed into his property, demolished compound walls, plucked coconuts and caused loss to the extent of Rs. 35,000/-.
The petitioners contend that the property belonged to them and that they were in possession; the total extent of the property is described as 3.68 acres. They allege that one Janardhanan had advanced Rs. 25,000 to them and had taken 67½ cents as security; although a document was registered in Janardhanan’s name, possession allegedly remained with the petitioners. Janardhanan is alleged to have executed an assignment deed in favour of the first respondent.
The petitioners initiated a civil suit (O.S. 360/93) in the Sub Court, Thalassery seeking a declaration that the assignment in favour of the first respondent is void and a permanent injunction restraining trespass and interference with their possession; a temporary injunction was granted in that civil suit. While that suit was pending, the first respondent filed the criminal complaint. The petitioners moved to quash the criminal proceedings (C.C. 657 of 1993). The court heard counsel on both sides.
Legal Issues Presented
- Whether the criminal proceedings (C.C. 657 of 1993) should be stayed or quashed because the same subject-matter (title/possession) is pending in the civil suit O.S. 360/93.
- Whether the Magistrate's direction to an advocate to conduct an inquiry under section 202 of the Code of Criminal Procedure is legally impermissible and vitiates the criminal proceedings.
Arguments of the Parties
Petitioners' Arguments
- The matter before the criminal court is identical to the dispute in the pending civil suit (title and possession), and therefore the criminal proceedings should be stayed until the civil suit is decided.
- The Magistrate illegally appointed an advocate to conduct the investigation under section 202 Cr.P.C.; according to the petitioners, the phrase "such other person" in sub‑section (1) of section 202 should be read restrictively (ejusdem generis) and does not include an advocate.
- The complaint is untenable because petitioners were already in possession (and an injunction had been granted), so they could not have trespassed or caused the alleged loss; the timing of the plaint and the alleged offences was relied upon to support this contention.
First Respondent's (and Court's Noted) Arguments/Responses
- Legal authority permits the criminal trial to continue in appropriate cases despite the pendency of a civil suit; there is no inflexible rule that a criminal proceeding must be stayed pending a civil adjudication on related issues.
- Sub‑section (3) of section 202 Cr.P.C. provides that if an investigation is made by a person other than a police officer, that person shall have the powers conferred by the Code on an officer in charge of a police station (except arrest without warrant); this supports the proposition that a Magistrate may direct investigation by a non‑police person and, accordingly, the appointment of an advocate is permissible.
- An enquiry under section 202 is preliminary in nature, limited to examining the complainant and such witnesses as the Magistrate deems fit, or to ascertain the truth or falsehood of the complaint; it is therefore within the Magistrate's discretion to appoint "any person" to assist in that limited investigation and an advocate, as an officer of the court, is competent to conduct and report such an enquiry.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vasu Vydier v. State of Kerala (1974 K.L.T. 24) | That stay of trial of a criminal case can be granted pending disposal of a civil suit between the parties in suitable cases where facts and circumstances make a stay necessary to avoid embarrassment in the criminal proceedings; but there is no hard and fast rule requiring stay in every such case. | The court referred to this decision to frame the principle that a criminal proceeding may be stayed in appropriate cases, and applied it to the present facts to conclude that a stay was not warranted (noting that the civil suit had been dismissed and only an appeal was pending). |
| Ranganayakalu Chetti v. Gopala Chetti (AIR 1953 Mad. 439) | Referenced for procedural and analytical guidance (the Madras High Court's formulation of questions relevant to similar disputes was noted). | The decision (and the ten questions quoted therein) was relied on as part of the analytical framework for considering whether the criminal proceedings should be stayed pending civil adjudication. |
| M.S. Sheriff v. The State of Madras (AIR 1954 SC 397) | The Supreme Court observed that no hard and fast rule can be laid down on staying criminal proceedings because of a civil suit; the possibility of conflicting decisions in civil and criminal courts is a relevant consideration; the public interest in a swift and certain criminal justice system is also relevant. | The court invoked these principles to balance the competing considerations and to support the conclusion that the criminal proceedings should not be stayed merely because a civil suit (and an appeal) are pending. |
| Jage Ram v. State of Haryana ((1971) 1 SCC 671 : AIR 1971 SC 1033) | Considered in the context of the rule of construction (ejusdem generis) and administrative interpretations of who may be included among "such other person" under section 202 Cr.P.C.; the Supreme Court quoted Lilavati Bai on ejusdem generis. | The court cited the case (and the quoted passage) when addressing the petitioners' argument that the ejusdem generis rule excludes an advocate from being "such other person." The court concluded that ejusdem generis did not restrict the magistrate's power in the present context and that appointment of an advocate was permissible. |
| Lilavati Bai v. The State of Bombay (AIR 1957 SC 521) | Articulates the principle and limits of applying the rule of ejusdem generis in statutory interpretation: general words following specific words are to be read in the same genus unless the context requires otherwise. | The court reproduced the passage to consider whether the ejusdem generis rule should restrict the meaning of "such other person" in section 202; it applied the passage to determine that context and purpose did not require such a restrictive interpretation in this case. |
| Ramprabesh Rai v. Bishun Mandal (1981 Crl. L.J. 139) | The Patna High Court held that an Executive Magistrate is included among "such other person" referred to in section 202 Cr.P.C., i.e., persons other than police officers may be directed to conduct investigation. | The petitioners relied on this decision to argue against the appointment of an advocate; the court considered it but rejected the broader restrictive reading urged by petitioners, finding that the Magistrate's power to appoint a non‑police person (including an advocate) to conduct the preliminary enquiry was consistent with section 202 and its subsection (3). |
Court's Reasoning and Analysis
The court proceeded by addressing the two principal contentions raised by the petitioners in light of the statutory scheme and relevant authorities.
On the request to stay or quash the criminal proceedings because of the pending civil suit, the court analyzed the established principle (from Vasu Vydier, Ranganayakalu Chetti and M.S. Sheriff) that there is no absolute rule requiring a criminal trial to be stayed pending a civil adjudication, although a stay can be granted in appropriate circumstances to avoid embarrassment or conflict between fora. The court noted the competing policy considerations emphasized by the Supreme Court in Sheriff’s case — namely the public interest in swift and certain criminal justice and the risk that civil proceedings may be dragged on — and held that these principles do not mandate a stay in every case.
Applying these principles to the present facts, the court observed that the petitioners' civil suit had been dismissed (though an appeal was pending). The court reiterated the position that an appeal from a civil decree is not ordinarily a sufficient ground to stay criminal proceedings indefinitely. Further, the court examined the injunction order (annexure-C) relied on by petitioners and found that it did not prima facie establish possession in favour of the petitioners; the injunction prohibited obstruction and waste but did not restrain the first respondent and his assignor from entering or otherwise enjoying the property. Consequently, the court concluded that the criminal proceedings were not liable to be stayed on account of the pendency of the civil suit or an appeal from the civil decree.
On the contention that the Magistrate acted illegally in appointing an advocate to conduct an enquiry under section 202 Cr.P.C., the court considered the textual scheme of section 202, particularly sub‑section (1) (which permits the Magistrate to "enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit") and sub‑section (3) (which confers on a non‑police investigator the powers of an officer in charge of a police station for the purpose of the investigation, except power of arrest without warrant).
The petitioners argued for a restrictive reading of "such other person" by application of the ejusdem generis rule. The court reviewed the law on ejusdem generis (quoting Lilavati Bai as reproduced in Jage Ram) but concluded that the context and the object of section 202 do not require the restrictive application urged by petitioners. The court emphasized that the enquiry under section 202 is preliminary and limited in scope — aimed at ascertaining whether there is sufficient ground for proceeding — and is not an elaborate or exhaustive investigation. Given the preliminary nature of the enquiry and the express provision in subsection (3) for conferring investigative powers on a non‑police investigator, the Magistrate was entitled to direct that an investigation be conducted by "such other person as he thinks fit." The court accepted the first respondent's submission that an advocate, being an officer of the court, is competent to conduct such a preliminary enquiry and to report the results to the Magistrate.
On these bases the court rejected the petitioners' challenge to the investigation carried out by the advocate and found no ground to hold the proceedings vitiated on that account.
Holding and Implications
The Criminal Miscellaneous Complaint (Crl. M.C.) is dismissed.
Direct effect on the parties:
- The petitioners' application to quash or stay the criminal proceedings in C.C. 657 of 1993 has been refused; the criminal prosecution may proceed in the Magistrate's court.
- The challenge to the appointment of an advocate to conduct the preliminary enquiry under section 202 Cr.P.C. was rejected; the enquiry and the report of that advocate are not held to vitiate the proceedings.
The opinion does not state any broader legal innovation or that it establishes a new precedent; it resolves the specific questions before the court by applying existing authorities and statutory interpretation to the facts at hand. The order is dated 7th March, 1995.
1. Petitioners are the accused in C.C 657 of 1993 before Judicial First Class Magistrate, Koothuparamba, a compliant presented by first respondent alleging commission of offences punishable under sections 143, 147, 148, 447, 427, 379 and 506(2) read with section 149 IPC. Petitioners six in number are alleged to have trespassed into the property to the first respondent and demolished compound walls put up by him and got coconuts plucked whereby a loss to the extent of Rs. 35,000/- was sustained by first respondent. Petitioners alleged that the property in respect of which the complaint was presented belonged to them and were in their possession along with remaining area, the total extent of the property being 3.68 acres. One Janardhanan is alleged to have advanced a sum of Rs. 25,000/- to petitioners and an area of 67½ cents was given to Him as security. Though a document was registered in his name possession continued with petitioners, according to them. In spite of the discharge of the entire amount the property was not re-conveyed. On the other hand, he executed as assignment deed in favour of first respondent. Petitioners were therefore constrained to file a suit as O.S 360/93 before Sub Court, Thalassery against first respondent and the aforesaid Janardhanan for a declaration that the assignment is void and for a permanent injunction restraining the defendants from trespassing into the property and interfering with the possession of petitioners. A temporary in junction was granted therein.
2. Pending the suit for injunction the complaint was filed by first respondent alleging commission of the aforesaid offences complaining of trespass by petitioners. Petitioners being in possession of the property the complaint is unsustainable and the allegation of trespass and the causing of loss are false. On these averments petitioners seek to quash the proceedings in C.C 657 of 1993 before Judicial First Class Magistrate, Koothuparamba. Heard counsel on both sides.
3. Two aspects are highlighted by learned counsel for petitioners. They are:
i. The matter in issue before the Criminal court is the same in the pending civil suit.
ii. The procedure adopted by the Magistrate in directing an advocate of that court to conduct an enquiry under 202 Cr. P.C is illegal and for that reason the entire proceedings are vitiated.
4. It is pointed out that the title and possession over the property is the subject matter of O.S 360 of 1993 before Sub Court, Thalassery and the proceeding before the Magistrate has to be stayed till the disposal of that suit. Counsel has cited the decision in Vasu Vydier v. State of Kerala (1974 K.L.T 24). Attention is drawn to the 10 questions formulated by the Madras High Court in the decision in Ranganayakalu Chetti v. Gopala Chetti (AIR 1953 Mad. 439) which are quoted in paragraph 5 of that decision. On a consideration of those aspects and the principles laid down in various other decisions including the decision of the Supreme Court in M.S Sheriff v. The State of Madras (AIR 1954 SC 397) this court held that stay of trial of a criminal case can be granted pending disposal of the civil suit between the parties on the same subject matter in suitable cases where facts and circumstances show the stay to be necessary to avoid any embrassment in the conduct of the criminal proceedings. It was further stated that there is no hard and fast rule that criminal proceedings should always be stayed pending disposal of a connected civil suit. On the facts of that case this court held that there could be no harm in adjourning the criminal proceedings giving a reasonable time to see that the proceedings in the civil courts are over by the time trial in the criminal court begins.
5. The Supreme Court in Sheriff's case supra after noticing the difference of opinion in the High Courts on this aspect observed that no hard and fast rule can be laid down. At the same time it was held that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The Supreme Court was also aware of the possibility of the civil suit being dragged on for years and the undesirability of the criminal prosecution to wait till everybody concerned has forgotten all about the crime. It was observed that the public interest 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 that the innocent should be absolved as early as is consistent with a fair and impartial trial. While observing thus Supreme Court stated that this is not a hard and fast rule.
6. Even while holding that the proceedings before the criminal court could be adjourned till the civil suit is decided this court in Vasu Vydier's case supra) made it clear that the right of appeal available to the parties will be no ground to move for further adjournment of the criminal proceedings. The position therefore is that in appropriate cases this court can direct stay of a criminal proceeding till the civil court adjudicates the dispute provided the facts to be proved in both cases are almost the same.
7. Viewed in the light of the principles enunciated above the request for stay of the criminal proceedings has only to be rejected. The suit filed by the petitioners has been dismissed. But it is pointed out that an appeal is pending. The Supreme Court and this court in Vasu Vydier's case had made it clear that a criminal proceeding cannot be stayed till the final decision is rendered in the civil suit. At the utmost the request can be made only for stay of the criminal proceeding till the disposal of the original suit. The suit having been dismissed the request for stay of the criminal proceeding is refused.
8. Petitioners have a contention that the complaint was filed since the filing of the suit and grant of injuction by the civil court. The plaint is dated 16-8-1993 whereas the offence are alleged to have been committed between 19-8-1993 and 20-8-1993. The temporary injuction is seen to have been granted on 20-8-1993. The contention is that petitioners had been in possession on the date of the suit and that possession continued by virtue of the injunction order. If that be so, there was no occasion for petitioners to trespass into the property or cause loss. This plea also is unsustainable for two reasons. (i) The suit has subsequently been dismissed, the claim of possession of petitioners over the property has therefore been found against him (iii) The order of injunction granted by the civil court, a copy of which is produced as annexure-C does not restrain first respondent and his assignor from entering the property or otherwise enjoying the property whereas the prohibition is only against making obstructions to the plaint schedule property and committing waste therein. It cannot therefore be said that primafacie possession has been found in favour of the petitioners before granting the order of injunction. On this point it is therefore found that the criminal proceedings are not liable to be stayed on account of the pendency of the original suit or the appeal from the decree therein.
9. The proceedings are vitiated, according to counsel for petitioners on account of the enquiry conducted by the advocate appointed by the Magistrate. Annexure-F is a copy of the report filed by Advocate Sr. K.S.K Nambiar who was appointed by the Magistrate for making an investigation under section 202 Cr. P.C Counsel argues that an advocate cannot be appointed for conducting an investigation. section 202 Cr. P.C enables a Magistrate to postpone the issue of process against the accused on receipt of a compliant of an offence of which he is authorised to take congnizance and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. Such other person mentioned in sub-section (1) of section 202 will not take in an advocate, argues counsel. According to him such other person takes on only a person of the class mentioned in that sub-section. In other words, the ejusdem generis rule has to be applied. Attention is drawn to the decision of the Supreme Court in Jage Ram v. State of Haryana ((1971) 1 SCC 671 : AIR 1971 SC 1033) The Supreme Court has quoted with approval the following observation in Lilavati Bai v. The State of Bombay (AIR 1957 SC 521)
“The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the legislature presumed to use of general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning.”
10. Counsel has also cited the decision of the Patna High court in Ramprabesh Rai v. Bishun Mandal (1981 Crl. L.J 139) That was a case where an Executive Magistrate was directed to conduct an investigation under section 202 for collecting evidence. The Patna High Court held that the Executive Magistrate is included amongst “such other person” referred to in S. 202. On the basis of the aforesaid decisions it is argued that an advocate is not “such other person” referred to in section 202. This contention is met by learned counsel for the first respondent by drawing attention to sub-section (3) of that section. That sub-section says that if an investigation under sub-section (1) is made by a person not being a Police Officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. Conferment of powers of a police officer on such other person is necessitated only if a person other than a police officer is directed to conduct an investigation. The ejusdem generis rule pointed out by the counsel is therefore of no application. Moreover the purpose of the enquiry by the Magistrate or investigation by a police officer or by such other person under section 202 is only for the purpose of deciding whether or not there is sufficient ground for proceeding. In other words, the enquiry or investigation contemplated therein is not an elaborate or exhaustive enquiry. The enquiry by the Magistrate is confined to preliminary examination of the complainant and his witnesses or such of them as the Magistrate deems fit to examine. The scope of the investigation by the police officer or such other person is restricted to the ascertainment of the truth or falsehood of the complaint. Needless to say that a detailed enquiry is not called for and the investigation is only for the purpose of collection of materials to enable the Magistrate to ascertain whether there is sufficient ground for proceeding. For the purpose the Magistrate can direct the investigation to be made by any person as he thinks fit. In the present case the Magistrate has thought it fit to appoint an advocate to conduct an investigation and produce the necessary materials. An advocate is an officer of the court and is competent to conduct an investigation and report to the court the result of such investigation. The direction to the advocate to make an investigation under section 202 of the Code is therefore proper and in accordance with the power conferred on a Magistrate under that section. The proceedings are not liable to challenge for that reason. On the second point also the petitioners fail.
11. For the aforesaid reasons the Crl. M.C is dismissed. 7th March, 1995.
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