As between civil and criminal proceedings, the criminal matters should be given precedence.

A civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody conceded has forgotten all about the crimeCrime A positive or negative act in violation of penal law; an offense against the state classified either as a felony or misdemeanor.. 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.

(1954) AIR(SC) 397 : (1954) CriLJ 1019 : (1954) 67 MLW 625 : (1954) SCA 576 : (1954) SCJ 458 : (1954) SCR 1144

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( Before : Mehr Chand Mahajan, C.J; Vivian Bose, J; Sudhi Ranjan Das, J; Ghulam Hasan, J; B. K. Mukherjea, J )

M.S. SHERIFF — Appellant

Vs.

THE STATE OF MADRAS AND OTHERS — Respondent

Decided on : 18-03-1954

Criminal Procedure Code, 1898 (CrPC) – Section 195(3), Section 476
Penal Code, 1860 (IPC) – Section 193, Section 344

JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)

Bose, J.—The question in this case is whether an appeal lies to this court u/s 476B of the Criminal Procedure Code from an order of a Division Bench of a High Court directing the filing of a complaint for perjury.

2. Two persons, Govindan and Damodaran, filed petition u/s 491 of the Criminal Procedure Code for release claiming that they had been illegally detained by two Sub-Inspectors of Police who are the appellants before us. Govindan said he was being detained by one Sub-Inspector and Damodaran said he was being detained by the other. Both the Sub-Inspectors said that the petitioners were not in their custody. The first Sub-Inspector, who was concerned with Govindan, said that Govindan had never been arrested by him and had not been in his custody at any timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”). The other denied that Damodaran was in his custody. He admitted that he had arrested him at one time but said that he had been released long before the petition. Each swore an affidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. in support of his return. In view of this conflict between the two sets of statements the High Court directed the District Judge to make an enquiry.

3. Considerable evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 was recorded and documents were filed and the District Judge reported that in his opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. the statements made by the two Sub-Inspectors were correct. The High Court disagreed and, after an elaborate examination of the evidence, reached the conclusion that the petitioners were telling the truth and not the Sub-Inspectors. The petitioners were however regularly arrested after their petitions and before the High Court’s order; one was released on bail and other was remanded to jail custody by an order of a Magistrate. Accordingly their petitions became infructuous and were dismissed.

4. After this, the petitioners applied to the High Court u/s 476 of the Criminal Procedure Code and was asked that the Sub-Inspectors be prosecuted for perjury u/s 193, Indian Penal Code. The applications were granted and the Deputy Registrar of the High Court was directed to make the necessary complaints.

5. The Sub-Inspectors thereupon asked for leave to appeal to this court. Leave was refused on the ground that no appeal lies, but leave was granted under article 132 as an interpretation of articles 134(1) and 372 of the Constitution was involved. The Sub-Inspectors have appealed here against that order as also against the order u/s 476. In addition, as an added precaution, they have filed a petition for special leave to appeal under article 136(1).

6. The first question we have to decide is whether there is a right of appeal. That turns on the true meaning of section 476B of the Criminal Procedure Code read with section 195(3). The relevant portion of the former reads thus :-

“Any person…….. against whom…… a complaint has been made” [under section 476] “may appeal to the court to which such former court is subordinate within the meaning of section 195(3)….”

7. The latter section reads –

“For the purposes of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court…..”

8. The rest of the section does not concern us.

9. Two things are evident. First, that a right of appeal has been expressly conferred by section 476B provided there is a higher forum to which an appeal can be made; and second, that the appellate forum has been designated in an artificial way. The appeal lies to the court to which the former court is subordinate within the meaning of section 195(3). But “subordinate” does not bear its ordinary meaning. It is used as a term of art and has been given a special meaning by reason of the definition in section 195(3) : a fiction has been imposed by the use of the word “deemed”. We have accordingly next to examine the content of the fiction.

10. The section says that the court making the order u/s 476 shall be deemed to be subordinate to the court.

(a) to which appeals ordinarily lie

(b) from the appealable decrees or sentences of such former court.

11. Now the former court in this case is a Division Bench of the High Court. The only court to which an appeal ordinarily lies from the appealable decrees and sentences of a Division Bench of a High Court is this court. Therefore, a Division Bench of a High Court is a court “subordinate” to this court within the meaning of section 195(3); accordingly an appeal lies to this court from an order of a Division Bench u/s 476.

12. It was contended that there is no ordinary right of appeal to this court and that such rights as there are those expressly conferred by the Constitution in a very limited and circumscribed set of circumstances, therefore, such appeals as lie to this court cannot be said to lie “ordinarily”.

13. We do not agree. Such an argument concentrates attention on the word “ordinarily” and ignores the words “appealable decrees or sentences”. Before we can apply the definition we have first to see whether there is a class of decrees or sentences in the court under consideration which are at all open to appeal. If there are not, the matter ends and there is no right of appeal u/s 476-B. If there are, then we have to see to which court those appeals will “ordinarily” lie. It is evident that the only court to which the appealable decrees and sentences of a Division Bench of a High Court can lie is the Supreme Court. There is not other court to which an appeal can be made. It follows that is the ordinary course in the case of all appealable decrees and sentences and that consequently this is the court to which such appeals will ordinarily lie.

14. As there is a right of appeal we have next to consider the matter on its meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. and there the only relevant consideration is whether “it is expedient in the interests of justice” than enquiry should be made and a complaint filed. That involves a careful balancing of many factors.

15. The High Court has scrutinised the evidence minutely and has disclosed ample material on which a judicial mind could reasonably reach the conclusion that there is matter here which requires investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. in a criminal court and that it is expedient in the interests of justice to have it enquired into. We have not examined the evidence for ourselves and we express no opinion on the merits of the respective cases but after a careful reading of the judgment of the High Court and the report of the District Judge we can find no reason for interfering with the High Court’s discretion on that score. We do not intend to say more than this about the merits as we are anxious not to prejudge or prejudice the case of either side. The learned Judges of the High Court have also very rightly observed in their order u/s 476 that they were not expressing any opinion on the guilt or innocence of the appellants.

16. We are informed at the hearing that the two further sets of proceedings arising out of the same facts are now pending against the appellants. One is two civil suits for damages for wrongful confinement. The other is two criminal prosecutions u/s 344, Indian Penal Code for wrongful confinement, one against each Sub-Inspector. It was said that the simultaneous prosecution of these matters will embarrass the accused. But after the hearing of the appeal we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready, as the High Court records were not available on the application of the accused. As these prosecutions are not pending at the moment, the objection regarding them does not arise but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.

17. As between the civil and the 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.

18. 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 an 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 made some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered u/s 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.

19. The result is that the appeal fails and is dismissed but with no order about costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs.. Civil Suits Nos. 311 of 1951 to 314 of 1951, in the Court of the Subordinate Judge, Coimbatore, will be stayed till the conclusion of the prosecution u/s 193, Indian Penal Code. As the plaintiffs there are parties here, there is no difficulty about making such an order.

20. The petition for special leave is dismissed.

22. Petition for special leave dismissed.