S.B. CRIMINAL MISC. PETITION NO.964/2005 Harnam Singh Vs. State of Rajasthan & Anr. DATE OF ORDER : 9.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. M.K. Garg, for the petitioner. Mr.VR Mehta, Public Prosecutor. Mr. G.J. Gupta, for the complainant. Heard learned counsel for the parties. The learned trial court took cognizance against the petitioner for the offence under Sections 420, 467, 468, 471, 323, 364(A) and 120-B I.P.C. by order dated 28.6.2004. The said order was challenged by the petitioner by preferring revision petition No.04/2005 which was dismissed by learned Additional Sessions Judge No.2, Sri Ganganagar vide order dated 8.8.2005, hence this petition under Section 482 Cr. P.C. by the petitioner. It appears from the facts of the case that there are serious allegations against the petitioner and other accused persons of obtaining 'agreement for sale' of the property by using force. The allegations are against the Police and Home Guard officials. The incident is alleged to have taken place on 26.3.2001. As per the complainant, a private complaint was filed in the court wherein cognizance was taken by the trial court on 28.6.2004 inspite of the fact that the police had filed Final Report on the ground of the matter being of civil nature. It appears that a regular suit for specific performance of same contract, which is the subject matter in the criminal case i.e. 26.3.2005 was filed in the civil court. It appears from copy of judgment shown by the learned counsel for the petitioner delivered in petitioner's Civil Suit No.47/2002 that for an agreement to sale dated 27.3.2001 after the above criminal complaint, the said suit was filed and was decided in a short period of two years by judgment dated 25.11.2003. According to the learned counsel for the petitioner, the decision of Civil Court is binding on criminal court as held by the Hon`ble Supreme Court in the case of M/s. Karamchand Vs. Union of India reported in AIR 1971 SC 1244. In this case, since the civil court on specific issue about the agreement to sale decided in petitioner's favour, therefore, the prosecution on the basis of the same set of facts against the petitioner is an abuse of the process of court, therefore, the same may be quashed. Learned counsel for the complainant vehemently submitted that it was a case of high-handed act with the help of police officials and the suit was filed after the complainant's lodging the complaint and it was decided within short period by the trial court and the judgment and decree of the trial court is sub-judice before this Court in regular first appeal, therefore, there is no binding decision of the civil court, which may bind the criminal court on any of the issues raised by the complainant, therefore, the judgment delivered in the case of M/s. Karamchand (supra) has no application to the facts of the case. It was also submitted that the two courts below were of the view that from the evidence available on record a case of commission of offence is made out, then this Court may not interfere in the orders passed by the two courts below, particularly, when there is no final decision of the civil court yet. Learned counsel for the petitioner submitted that in that situation, the proceedings of civil court cannot proceed and deserved to be stayed till decision of the regular first appeal. I have considered the submissions of the learned counsel for the parties. It appears that the two courts below considered the entire material available on record before taking cognizance and dismissing the revision of the petitioner by order dated 28.6.2004 and 8.8.2005. For taking cognizance, the court is required to see whether there is material available on record on the basis of which the prosecution can proceed. At this stage, the court is not required to see whether the accused may be convicted or not. That satisfaction of the trial court from the facts and circumstances of the case appears to be just and correct. So far as the finding of the civil court by judgment dated 25.11.2003 is concerned, that judgment is sub-judice and none of the finding has attained finality so as to bind the criminal court. At this stage it cannot be pre-judged that the appeal of the complainant will be dismissed by the High Court after upholding the finding recorded by the trial court. In view of the above reasons merely because the trial court has decided in favour of the petitioner in civil side, the issues in favour of the petitioner itself cannot be a ground to quash the impugned orders. As far as the stay of proceedings of criminal court is concerned, for that purpose the petitioner may move appropriate application before the trial court, which should be considered by the trial court strictly in accordance with law after taking into consideration all the relevant facts. So far as the impugned orders are concerned, this Court find no reason to interfere. Hence, this misc. petition is dismissed. (PRAKASH TATIA), J. Sanjay Tanwar/