IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.MC.NO. 34 OF 2011() ------------------------------------- CC.635/2004 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... PETITIONER(S): ACCUSED -------------------------------------- MATHEW JACOB @ RAJU, PANACHERRY HOUSE, II PLUKKALA, EDAKUNNAM KARA, EDAKUNNAM VILLAGE, KANJIRAPALLY TALUK. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.-31. 2. E.J.JOHN, ERIKKATTU HOUSE, THAZHATHANGADI, KOTTAYAM. BY PUBLIC PROSECUTOR SMT.,M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.34 of 2011 ==================================== Dated this the 27th day of January, 2011 O R D E R This petition is filed by the accused in C.C. No.635 of 2004 of the court of learned Judicial First Class Magistrate, Kanjirappally seeking to defer trial of that case until the civil case between petitioner and respondent No.2 is decided by the learned District Judge, Kottayam where it is pending as A.S. No.276 of 2009. 2. Petitioner is alleged to have committed offences punishable under Sections 379, 291, 427 and 447 of the Indian Penal Code. It is alleged that petitioner trespassed into the ten acres of land belonging to Respondent No.2 and committed theft and mischief as alleged. According to the petitioner there was an agreement for sale (Annexure-A3) dated 04.07.96 between petitioner and respondent No.2 pursuant to which on a later day petitioner was put in possession of the said ten aces also and from then onwards he is enjoying the property. Respondent No.2 filed a suit for declaration of his title and recovery of possession of the said ten acres alleging that petitioner trespassed into the property. The suit was decreed in favour of respondent No.2 which is CRL.M.C. No.34 of 2011 -: 2 :- under challenge in A.S. No.276 of 2009 in the court of learned District Judge. Contention of petitioner is that he will be able to establish in the civil proceeding that it is pursuant to the agreement for sale that he was put in possession of the property by respondent No.2 in which case the allegation of trespass, mischief, theft, etc., made against him cannot stand. Learned counsel has placed reliance on the decision of the Supreme Court in Premshanker v. I.G. of Police (2002 [3] KLT 389) to contend that the crux of the dispute being whether petitioner is a trespasser or he got possession as per the agreement for sale, criminal proceedings should await the decision in the civil proceedings. I have heard the learned Public Prosecutor as well. 3. In the decision cited by the learned counsel it is stated in paragraph 27 that in a case of alleged trespass by A on B’s property and B filed a suit for declaration of its title and to recover possession from A and suit was decreed. Thereafter in a criminal proceeding by B against A for trespass judgment passed between the parties in civil proceeding would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. CRL.M.C. No.34 of 2011 -: 3 :- 4. Now the question is whether pending adjudication of the civil dispute between the parties in A.S. No.276 of 2009 proceeding in C.C. No.635 of 2004 should be stayed. Referring to the decision cited by the learned counsel (of course by a Bench consisting of three Judges ) the Supreme Court in Kishan Singh v. Gurpal Singh (2010 [4] KLT SN 2 [Case No.3] rendered by a Bench of Two Judges has held that finding of facts recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil court or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872 dealing with the relevance of previous judgments in subsequent cases may be taken into consideration. 5. Having regard to the factual situation the only CRL.M.C. No.34 of 2011 -: 4 :- provision among Sections 41 to 43 of the Act that could be applied is Sec.41. There also the court is not concerned with the finding entered by the civil court. If there is dispute as to the result of the civil case it is open to the petitioner to produce judgment in the civil case to show what was the result of that adjudication. That situation does not arise on the facts of this case. Various other decisions on the point also informs me that the decision of civil court or criminal court is not binding on the other (See Syed Askari Hadi Ali Augustine Imam & Another v. State (Delhi Admn.) & Another - 2009 [4] Supreme 222, Smt. Rumi Dhar v. State of West Bengal – 2009 [3] Supreme 261, paragraph 19 and Sh. Vishnu Dutt Sharma v. Smt. Daya Sapra - 2009 [5] Supreme 258). In the latter decision there is reference to the Constitution Bench decision in M.S. Sheriff & Another v. State of Madras and Others (AIR 1954 SC 397) where it was held that in the matter of stay of civil or criminal proceeding, criminal matter should be given precedence. Having regard to factual and legal situation discussed above I am not persuaded to think that this is a case where until disposal of the civil dispute trial of criminal proceeding must wait. Relief prayed for cannot be granted. CRL.M.C. No.34 of 2011 -: 5 :- Resultantly, Criminal Miscellaneous Case is dismissed but without prejudice to the defence petitioner might take in the criminal case. The criminal court shall decide the case untrammelled by the observations if any contained in this order. THOMAS P. JOSEPH, JUDGE. vsv