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Calcutta High Court
Dwarka Nath Rai Chowdhry vs Emperor on 17 May, 1904
Equivalent citations: (1904) ILR 31 Cal 858
Author: P A Handley
Bench: Pratt, Handley


Pratt and Handley, JJ.

1. The petitioner Dwarka Nath Rai Chowdhry applied to the District Judge of Faridpore for probate of the will of one Pyarimoni Chowdhurani. The case was contested, and in the result the District Judge pronounced the will be a forgery and directed the applicant for probate to be prosecuted for forgery and for giving false evidence. He also directed the other four petitioners, who were witnesses to the will, to be similarly prosecuted. Subsequently on the 13th April last Dwarka Nath Rai Chowdhry filed an appeal in the High Court against the orders of the District Judge refusing probate. We are asked to make an order directing that the proceedings now pending against the petitioners in the Criminal Court should be stayed pending the disposal of the appeal in the probate case. In the case of In re Devji Valad Bhavani (1893) I.L.R. 18 Bom. 581 it was held not to be an invariable rule that criminal proceedings should be stayed during the pendency of civil litigation regarding the same subject-matter. A different opinion seems to have previously prevailed in the Bombay High Court, as expressed in the case of In re Shri Nana Maharaj (1892) I.L.R. 16 Bom 729. The only reported cases of this Court, which are directly in point are those of Raj Kumari Debi v. Bama Sundari Debi (1896) I.L.R. 23 Calc. 610 and Goberdhone Pramanick v. Iswar Chunder Pramanick (1900) 5 C.W.N. 44. In the former case Ghose J., while holding that the High Court has power to order a Magistrate to stay proceedings in his Court, if sufficient cause is made out, added: “At the same time I feel bound to say that when the Legislature has given to a Magistrate the power to regulate the proceedings in his own Court, the discretion should ordinarily be left to the Magistrate either to stay proceedings or not, as he, in the circumstances of the case, may think it right and proper;” and farther: “I am not myself prepared to say that as a general rule a proceeding in a Criminal Court should be stayed pending decision of a civil suit in regard to the same subject-matter, but what I think I might properly say is that ordinarily it is not desirable, if the parties to the two proceedings are substantially the same and the prosecution before the Magistrate is but a private prosecution and the issues in the two Courts are substantially identical, that both the cases should go on at one and the same time,” and he added that it was open to the Magistrate to put the accused on terms as to appearance or otherwise. In that case the learned Judges refused to make an order interfering with the Magistrate’s discretion. In the case of Goberdhone Pramanick v. Iswar Chunder Pramanick (1900) 5 C.W.N. 44 the petitioner denied the execution of a mortgage bond,_but the Special Sub-Registrar held that he had executed it and directed a prosecution under Section 82 of the Indian. Registration Act, upon which the petitioner, sued for a declaration that the bond was a forgery. This Court observed that the proceedings in the civil suit are much more likely to result in a proper conclusion than the summary proceeding taken before the registration officers, and accordingly the criminal prosecution was stayed. Acting upon the authority of those cases, we think that we ought not to interfere with the Magistrate’s discretion except upon good cause shown. Now in the present case the petitioner has not been able to show any special reason for our interference. On the contrary it would appear expedient that the Magistrate should proceed forthwith to make the preliminary inquiry prior to commitment. It is not a private prosecution, but one directed by the District Judge, in what he believes to be the interests of justice, and as the Magistrate states in explanation the witnesses are related to the accused persons and therefore it is desirable that their evidence should be recorded without undue delay. We may add that, if the Magistrate should find that a prima facie case under Section 467 of the Indian Penal Code has been made out and should accordingly commit the accused for trial, it would be hardly possible that the case could come on before the July Sessions. In the meantime the appellant in the probate case ought to be able, if he exercises due diligence, to have the paper book prepared. If he satisfies the Sessions Judge that this has been done and that he has moved the Court to expedite the hearing of the appeal, there is little doubt that the Sessions Judge would accede to any prayer he may make for a reasonable postponement of he trial. We think, however, that the proceedings in the Magistrate’s Court ought not to be stayed or postponed, and we accordingly discharge the Rule.

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