CRL.M.C./2417/2016 of ARVIND KEJRIWAL Vs ARUN JAITLEY & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+Crl.M.C. 2417/2016

Date of Decision: October 19[th], 2016..... PetitionerThrough:Mr. Ram Jethmalani, Senior Advocatewith Ms.Nitya Ramakrishnan, Adv.,Mr. S. Farasat, Adv., Mr.AshwathSitaraman, Adv., Mr.Chirag Madan,Adv., Mr.Anirudh, Adv. & Mr.AhmedSaid, Adv.versus

ARVIND KEJRIWAL

ARUN JAITLEY & ORS

..... RespondentsThrough:Mr.Harish N. Salve, Senior Adv. withMr.SiddharthLuthra,Sr.Adv.,Mr. Manik Dogra, Adv., Mr. ManojTaneja, Adv., Mr. Poonam Prasad,Adv. for respondent No. 1.CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present petition has been filed by the petitioner, underSection 482 of the Code of Criminal Procedure, 1973 (hereinafter

shall be referred to as Cr.P.C.) read with Article 227 of theConstitution of India for setting aside and quashing of order dated

19.05.2016 passed by the learned Chief Metropolitan Magistrate,Patiala House Courts, New Delhi and for stay of the criminalproceedings in Criminal Complaint No.210/2016 until the finaldecision of Civil Suit bearing CS(OS) No.3457/2015 pendingbefore this Court.

2.The petitioner is member and convenor of Aam Aadmi

Party, member of the Legislative Assembly of Delhi and is thecurrent Chief Minister of the NCT of Delhi. The respondent no.1was the President of Delhi District and Cricket Association(DDCA) until 2013 and is member of Bhartiya Janta Party,MemberofParliamentandUnionCabinetMinister.On21.12.2015, complaint of criminal defamation was filed by therespondent no.1 against the petitioner and respondent nos.2 to 6with allegations under Sections 499, 500, 501, 502 of the IPC readwith Section 34 and 35 of the IPC. On the same date, respondentno.1 had also filed civil defamation suit before this Court.Learned CMM took cognizance of the offences on 21.12.2015 andpre-summoning evidence wasrecorded.Vide order dated09.03.2016, the petitioner and respondent nos.2 to 6 were

summoned and they appeared before the Court on 07.04.2016.

3.The matter was fixed for framing of the notice on19.05.2016.

4.On 19.05.2016, an application under Section 309(2) of the

Cr.P.C. was moved by the petitioner with the prayer to stay thehearing of the criminal complaint until the proceedings before this

Court are decided. Vide order dated 19.05.2016, the learned CMMobserved that no stay of the proceedings can be granted on accountof pendency of civil suit before this Court. It was opined by theCourt below that the civil suit and criminal defamation both standon different footing and can be tried simultaneously.Operativepart of the order reads as under :

“Now,tomymind,therearecertainaverments made in the application whichwarrant reply before disposal of the same.However,in so farasprayerno.1 isconcerned [as extracted hereinabove] i.e., asto stay of the proceedings, I may note thatthis court cannot stay the proceedings on itsown/merely on account of pendency of civilsuit before Hon’ble Court of Delhi.In my opinion the civil suit fordamages on account of defamation andcriminal defamation case both stands ondifferentfootingandcanbetriedsimultaneously and there is no impediment

qua proceedings further in the case in hand.The accused persons have been summonedin the present case and as on date, there is nostay whatsoever from any Court of law.”

5.The present petition came up for hearing on 13.07.2016. On

21.07.2016, reply to the petition was filed by the respondent no.1.

The learned Senior Counsel for the parties had agreed that thequestion formulated below may be decided by this Court :

“Whetherthecriminalproceedingscouldcontinue or are required to be stayed during thependency of the CS(OS) No.3457/2015?”

Arguments were advanced by the learned Senior Counsel forthe parties.

6.Feeling aggrieved by the observations made in the orderdated 19.05.2016, the present petition has been preferred by the

petitioner mainly on the ground that the criminal proceedings areought to be stayed as the civil suit has been filed on the basis ofsame facts and allegations. Further ground taken is that there aresimilarities in both the proceedings initiated by the respondent no.1such as the facts that the parties are same, events are same, date offiling is same, cause of action is same and both the proceedings areprivate in character.

7.Arguments advanced by Mr.Ram Jethmalani, learned Senior

Counsel for the petitioner and by Mr.Harish Salve, learned SeniorCounsel assisted by Mr.Sidharth Luthra, learned Senior Counselfor the respondent no.1 were heard.

8.Argument advanced by the learned Senior Counsel Mr.RamJethmalani for the petitioner is that the civil suit filed by therespondent no.1 and the criminal complaint in question are basedon the same facts and allegations and thus the criminal proceedingsfor defamation may be stayed as per Section 309(2) of the Cr.P.C.by referring the judgments in the case of M.S. Sheriff, P.C.Damodaran Nair v. State of Madras & Ors. AIR 1954 SC 397,P.Jayappan v. S.K. Perumal AIR 1984 SC 1693, Tula and Ors. v.Sadh and Ors. AIR 1962 HP 28, Radheshyam Kejriwal v. State ofWest Bengal and Anr. (2011) 3 SCC 581,Dhanrajmal Gobindram& Co. Pvt. Ltd. v. The State of Maharashtra & Anr. 1973 Cri.L.J.1574, Bhagwandin v. Janak Lal & Anr. 1956 AWR 288, MausamMia v. Kashim Ali 1963 Cri.L.J. 129, Raj Kumari Debi and Anr.v. Bama Sundari Debi (1896) ILR 23 Cal 610, J.M. Lucas v.Official Assignee of Bengal AIR 1920 Cal 624, Kanhaiya Lal v.Jethmalani for the petitioner is that the civil suit filed by therespondent no.1 and the criminal complaint in question are basedon the same facts and allegations and thus the criminal proceedingsfor defamation may be stayed as per Section 309(2) of the Cr.P.C.by referring the judgments in the case of M.S. Sheriff, P.C.Damodaran Nair v. State of Madras & Ors. AIR 1954 SC 397,P.Jayappan v. S.K. Perumal AIR 1984 SC 1693, Tula and Ors. v.Sadh and Ors. AIR 1962 HP 28, Radheshyam Kejriwal v. State ofWest Bengal and Anr. (2011) 3 SCC 581,Dhanrajmal Gobindram& Co. Pvt. Ltd. v. The State of Maharashtra & Anr. 1973 Cri.L.J.1574, Bhagwandin v. Janak Lal & Anr. 1956 AWR 288, MausamMia v. Kashim Ali 1963 Cri.L.J. 129, Raj Kumari Debi and Anr.v. Bama Sundari Debi (1896) ILR 23 Cal 610, J.M. Lucas v.Official Assignee of Bengal AIR 1920 Cal 624, Kanhaiya Lal v.

Bhagwan Das AIR 1926 All 30, N.B. Chakkathimma Reddi andAnr. v. The State of Mysore AIR 1952 Mys 37, Nandu Babu v.Rajendra Kumar 1970 Cri.L.J. 1574, Satendra Kumar Gupta v.A.B. Shorewal 1979 ACR 21, Raminder Kaur Bedi v. JatinderSingh Bedi 1989 (16) DRJ 154, Charanjiv Partap Ahluwalia andanother v. State (Delhi Admn.) 1997 Cri.L.J. 333, SunilMehdiratta and ors. v. Union of India ILR (2001) 2 Del 554,Madhao Bhagwant Deshmukh v. Emperor AIR 1926 Nag 315and Bhanu M. Vakil v. Chandra Oshiram Keswani & Anr. 1991Cri.L.J. 2819.

9.Learned Senior Counsel for the petitioner further argued thatifboththeproceedingsareallowedtobecontinuedsimultaneously, it can cause harassment and embarrassment to theaccused in the criminal proceedings. It is further submitted thatthis Court is Court of Record and the findings recorded by thisCourt in the civil suit is binding on criminal court which in thepresent case is subordinate to this Court. It is further submittedthat in criminal cases the burden of proof is beyond reasonabledoubt and in case the respondent no.1 loses the civil case, it is

impossible that he will succeed in the criminal case. On this point,judgment in the case of Radheshyam Kejriwal (supra) has beenrelied upon in which it has been observed that standard of proof ina criminal case is much higher than that of the adjudicationproceeding.It is further argued that the embarrassment to thepetitioner is inherent in defending two proceedings simultaneously,

one that imperils his liberty and the other that has serious financialliabilities.10.During the course of arguments, learned Senior Counsel forthe petitioner relied upon the judgment in the case of M.S. Sheriff(supra), it was observed that as between the civil and criminalproceedings, the criminal matters should be given precedence. Nohard and fast rule can be laid down but the possibility ofconflicting decisions in the civil and criminal courts is relevantconsideration.The law envisages such an eventuality when itexpressly refrains from making the decision of one court beingbinding on the other, or even relevant, except for certain limitedpurposes, such as sentence or damages.The only relevantconsideration is the likelihood of embarrassment. civil suit often

drags on for years and it is undesirable that criminal prosecutionshould wait till everybody concerned has forgotten all about thecrime.

11.In the case of Mausam Mia (supra), it was observed that itwill amount to great embarrassment for the petitioners, if they areforced to stand trial in the Criminal Court on this question firstand again to have the same matter agitated in the Civil Court.There is also the likelihood of the Civil Court and the CriminalCourt coming to conflicting decisions on the point which willgreatly prejudice the accused in the case.

In the case of Raj Kumari Debi (supra), it was observed thatif the parties to the two proceedings are substantially the same andthe prosecution before the Magistrate is but private prosecution,and the issues in the two Courts are substantially identical, thatboth the cases should go on at one and the same time; and that it isquite open to the Magistrate to consider whether it is not desirablethat the proceedings in his Court should be stayed till the decisionof the civil suit, or for limited period of time.

In the case of Raminder Kaur Bedi (supra), it was observed

by the learned Single Judge of this Court that the criminal trial wasbound to prejudice the case filed by the respondent seeking divorcefrom the petitioner on the ground of adultery.It was furtherobserved that in case the respondent is to succeed in proving hisallegations made by him in his divorce case then the same wouldfurnish him good defence against the charge of defamation in viewof the provisions contained in Section 499 IPC. The learned SingleJudge stayed the criminal case till disposal of the divorce case.

In the case of Charanjiv Partap Ahluwalia (supra), theproceedings before the criminal court were stayed till the disposalof the civil suit on the ground that the decision in the civil suitwould have great bearing on the criminal case as the facts wereintimately connected and were not different from those alleged orpleaded in the civil suit.

In Sunil Mehdiratta’s case (supra), it was observed that thequestion whether the adjudication proceedings have any relevanceor bearing has to be judged by the trial Court dealing with theapplication under Section 309 of the Code.

In the case of P. Jayappan (supra) it was observed that the

criminal court may adjourn or postpone the hearing of criminalcase in exercise of its discretionary power under Section 309 of theCr.P.C. if the disposal of any proceeding under the Act which has abearing on the proceedings before it is imminent so that it may takealso into consideration the order to be passed therein. There is norigid rule which makes it necessary for criminal court to adjournor postpone the hearing of case before it indefinitely or for anunduly long period only because some proceeding which may havesome bearing on it is pending elsewhere.

In the case of J.M. Lucas (supra) in which it was observedthat though no invariable rule can be laid down, it is ordinarilyundesirable to institute criminal proceedings until determination ofcivil proceedings in which the same issues are involved. It is toowell known to need elaboration that criminal proceedings lendthemselves to the unscrupulous application of improper pressurewith view to influencing the course of the civil proceedings; andbeyond that there is the mischief, illustrated by this case ofcriminalproceedingsbeinginstitutedwithanimperfectappreciation of the facts where they have not been ascertained in

the more searching investigation of Civil Court.

12.Per contra, learned Senior Counsel Mr. Harish Salve for therespondent no.1 has argued that the right of reputation is part of theright of personal liberty protected by Article 21 of the Constitutionof India. He categorically submitted, “in today’s world, the wordsused are more powerful than sword”.

13.Learned Senior Counsel for the respondent no.1 referred tothejudgmentstotheeffectthatthelawrelatingtocontemporaneous civil and criminal actions has already beensettled.While relying upon the judgment in the case of M.S.Sheriff (supra), the Hon’ble Apex Court subsequently clarified thelaw.It was submitted by the learned Senior Counsel that thesubmission made on behalf of the petitioner that criminal and civilproceedings ought not to be permitted to run simultaneously wasrejected in the case of K.G. Premshanker v. Inspector of Police(2002) 8 SCC 87.In the said case, it was observed that if thecriminal case and the civil proceedings are for the same cause,judgment of the civil court would be relevant if conditions of anyof Sections 40 to 43 are satisfied. It was further observed that after

remand of the matter, civil proceedings as well as criminalproceedings are required to be decided on the basis of evidence. Itwas further argued that the principle in K.G. Premshanker’s case(supra) has been followed in various cases.Further judgmentsrelied upon are in the case of Kishan Singh v. Gurpal Singh(2010) 8 SCC 775, Syed Askari Hadi Ali Augustine Imam v. State(Delhi Admn.) (2009) 5 SCC 528, P. Swaroopa Rani v. M.HariNarayana (2008) 5 SCC 765, Guru Granth Sthan MeerghatVanaras v. Ved Prakash (2013) 7 SCC 622, GnanasigamaniNadar v. Vedamuthu Nadar AIR 1927 Mad 308, B.N. Kashyap v.Emperor AIR 1945 Lah 23, Subal Kumar Dey v. PublicProsecutor, West Tripura, Agartala and others 2009 CriLJ 4338,Yelchuri Ranganayakalu Chetty v. Gopala Chetty 1953 MWN Cr19, Emperor v. Dinalshah Rajanshah and others AIR 1933 Sind358, Padmanabhani Ramanamma alias Bullemma v. GolusuAppalanarasayya AIR 1932 Mad 254, K.L. Dhall v. D.P. Dutta1985 (8) DRJ 286, Thomas Dana v. State of Punjab AIR 1959 SC375, U Tha Zan v. U Pyant AIR 1935 Rangoon 487, AranBimavad v. Anshul Jain AIR 2016 MP 63, Iqbal Singh Marwah

v. Meenakshi Marwah (2005) 4 SCC 370, Lalmuni Devi v.Jagdish Tiwary AIR 2005 Pat 51, Narayanan v. Mathan MathaiAIR 1982 Ker 238, Seth Ramdayal Jat v. Laxmi Prasad (2009) 11SCC 545, Devendra v. State of UP (2009) 7 SCC 495, RavinderSingh v. State of Haryana (1975) 3 SCC 742 and State ofRajasthan v. Kalyan Sundaram Cement Industries Ltd. (1996) 3

SCC 87.

14.It was further argued by the learned Senior Counsel for therespondent no.1 that the burden of proof and the consequences in acriminal case vis-a-vis civil case being distinct.The criminaldefamation proceeding examines criminal intent whereas in thecivil proceedings, the act of defamation along with the nature andextent of damages is in issue.The present petition is dilatorytactic with view to delay the proceedings in the complaint case.It was further argued that the written statement has been filed inthe civil suit, so no prejudice can be caused to the petitioner.

15.In the judgment relied upon by the learned Senior Counselfor the respondent no.1 in the case of Kishan Singh (supra), it wasobserved :

“Thus, in view of the above, the law on theissue stands crystallized to the effect that thefindings of fact recorded by the civil courtdo not have any bearing so far as thecriminal case is concerned and vice versa.Standard of proof is different in civil andcriminalcases.Incivilcasesitispreponderanceofprobabilitieswhileincriminal cases it is proof beyond reasonabledoubt.There is neither any statutory norany legal principle that findings recorded bythecourteitherincivilorcriminalproceedings shall be binding between thesame parties while dealing with the samesubject-matter and both the cases have to bedecidedonthebasisoftheevidenceadduced therein.However, there may becases where the relevance of Sections 41 to43 of the Evidence Act, 1872, dealing withthe relevance of previous judgments insubsequentcasesmaybetakenintoconsideration.”“In light of the above legal position, it maybe immediately observed that the HighCourt was not at all justified in staying theproceedings in the civil suit till the decisionof criminal case.Firstly, because even ifthere is possibility of conflicting decisions inthe civil and criminal courts, such aneventuality cannot be taken as relevantconsideration. Secondly, in the facts of thepresent case there is no likelihood of anyembarrassmenttothedefendants

In the case of Guru Granth Saheb Sthan Meerghat Vanras(supra) it was observed :

(Respondents 1 to 4 herein) as they hadalready filed the written statement in thecivil suit and based on the pleadings of theparties the issues have been framed. In thisview of the matter, the outcome and/orfindings that may be arrived at by the civilcourt will not at all prejudice the defence(s)of Respondents 1 to 4 in the criminalproceedings.”

In the case of Gnanasigamani Nadar (supra) it was

observed:

“It may be highly undesirable but thequestionremainswhetheritislessundesirable to have the dispute fought outfirst in one Court and then in the other. Thatit must be fought out is inevitable and itmust be fought out in both Courts.If thecivil case is stayed pending the criminalcase, it will have practically the same resultas staying neither case: for ordinarily thecriminal case will be finally concluded in 3to 6 months, and the civil case in 3 to 6years; so that delaying the civil case willhave little effect and in my opinion will dono good.If the criminal case is stayedpending the civil case, then, as pointed outabove, person presumably innocent, is leftfor years with criminal case hanging overhim; and if ultimately proved to be guilty hewill have successfully staved off his wellmerited punishment for an equal period. Ineitherviewthestayofthecriminalproceeding is objectionable. Therefore, theleast undesirable course is to adhere to themain principle and to let both cases proceed

with all possible dispatch.”

In the case of K.L. Dhall (supra) it was observed :

“….I am, however, unable to see as to howthatitselfoperatesasabarfortherespondent’s setting in motion the criminallaw which is separate and independentremedy available to an aggrieved person insuch situation.It was next submitted byMr. Chawla that the learned Magistrateshould have waited for the result of the civillitigation and he should not have summonedthe petitioner till the civil suit was disposedof by the civil court. There is no merit inthissubmission.Asmentionedbymealready above, both the matters namely thecivil suit as pending in the civil court andthe complaint as filed by the respondentbefore the learned Magistrate are separateand independent proceedings and they cango on side by side. In my opinion there isno bar to the Magistrate taking cognizanceof the offence which he may be of opinionto have been committed by person whosematter is still pending in civil court as isthe situation in the present case. In the endthe petition is dismissed.”

In the case of Thomas Dana (supra) it was observed :

“It is true that the petitioners were dealt withby the Collector of Central Excise and LandCustoms, for the “offence” of smuggling;werefound“guilty”,andadeterrent"punishment" was imposed upon them, butas he had not been vested with the powers of

aMagistrateoracriminalcourt,hisproceedings against the petitioners were inthe nature of Revenue proceedings, with aview to detecting the infringement of theprovisions of the Sea Customs Act, andimposing penalties when it was found thatthey had been guilty of those infringements.Those penalties, the Collector had beenempowered to impose in order not only toprevent recurrence of such infringements,but also to recoup the loss of revenueresulting from such infringements. personmay be guilty of certain acts which exposehim to criminal prosecution for criminaloffence, to penalty under the law intendedto collect the maximum revenue under theTaxing law, and/or, at the same time, makehim liable to damages in torts. For example,an assessee under the Income-tax law, mayhave submitted false return with view todefrauding the Revenue. His fraud beingdetected, the Taxing Officer may realisefrom him an amount which may be somemultiple of the amount of tax sought to beevaded. But the fact that he has beensubjected to such penalty by the TaxingAuthorities, may not avail him against acriminal prosecution for the offence ofhaving submitted return containing falsestatements to his knowledge. Similarly, aperson may use defamatory language againstanother person who may recover damages intort against the maker of such defamatorystatement. But the fact that decree fordamages has been passed against him by thecivil court, would not stand in the way of hisbeing prosecuted for defamation. In suchcases, the law does not allow him the plea of

double jeopardy.”

In the case of Aran Bhimavad (supra) it was observed :

“In the light of the above legal position, itmay be immediately observed that the HighCourt was not at all justified in staying theproceedings in the civil suit till the decisionof criminal case.Firstly, because even ifthere is possibility of conflicting decisions inthe civil and criminal courts, such aneventuality cannot be taken as relevantconsideration. Secondly, in the facts of thepresent case there is no likelihood of anyembarrassmenttothedefendants(respondent Nos.1 to 4 herein) as they hadalready filed the written statement in thecivil suit and based on the pleadings of theparties, the issues have been framed. In thisview of the matter, the outcome and/orfindings that may be arrived at by the civilcourt will not at all prejudice the defence(s)of the respondent Nos.1 to 4 in the criminalproceedings.”

16.The main contention of the learned Senior Counsel for the

petitioner is that since the civil suit is pending between the partiesbefore this Court and the cause of action is also same, the criminalproceedings initiated by the respondent no.1 needs to be stayeduntil the decision in the civil suit as it may affect the criminalproceedings as the order delivered by this Court in civil suit would

be matter of record and this Court being the Court of Record andthus the same shall tantamount to judgment in rem and would bebinding on the subordinate courts under the High Court andfurthermore, the trial court/Magistrate was competent to stay itsproceedings under Section 309 Cr.P.C.

17.On the contrary, the argument advanced by the learnedSenior Counsel for respondent no.1 is that there is no legalimpediment on the proceedings on the civil side as well as on thecriminal side for the defamation as petitioner is entitled to knockthe door of the court of law on both sides simultaneously.Hefurther submitted that there cannot be any prejudice to thepetitioner as the proceedings pending in the civil side in the HighCourt are likely to take much time whereas the case before theCriminal court is presently at the stage of framing the notice.

18.The argument advanced by the counsel for the respondentno.1 is that the petitioner has not questioned the summoning orderand that the matter is being proceeded in pursuance of the sameand more the reason, petitioner has not initiated any suchproceedings which could be prejudiced by the continuation of both

the proceedings, particularly when the issues have been framed onthe civil side to which the evidence is to be led by the respondentno.1 and the criminal complaint case is fixed for framing of notice

against the petitioner when the matter has been fixed for framingof the notice.

19.It would be relevant to quote Section 309(2) of the Cr.P.C.

which reads as under :

“If the Court after taking cognizance of anoffence, or commencement of trial, finds itnecessary or advisable to postpone thecommencement of, or adjourn, any inquiryor trial, it may, from time to time, forreasons to be recorded, postpone or adjournthe same on such terms as it thinks fit, forsuch time as it considers reasonable, andmay by warrant remand the accused if incustody.”

20.The first question before the court is whether the trial court

is competent to stay the proceedings or not. Attention has beendrawn to the judgment of High Court of Delhi where theMagistrate has stayed the proceedings and the same has beenupheld by the High Court.(Raminder Kaur Bedi v. JatinderSingh Bedi 1989 (16) DRJ 154).

21.The next question is to the effect as to whether similarproceedings can continue in the civil suit as well as criminalproceedings for defamation. The Hon’ble Apex Court dealt withthis aspect and it was observed that :

“We are surprised how could the High Courtpermit the husband to cast his covetous eyeson the absolute and personal property of hiswife merely because it is kept in his custody,thereby reducing the custody to legal farce.On the other hand, it seems to us that even ifthe personal property of the wife is jointlykept, it would be expressly or impliedly keptin the custody of the husband and if hedishonestly misappropriates or refuses toreturn the same, he is certainly guilty ofcriminal breach of trust, and there can be noescape from this legal consequence. Theobservations of the High Court at otherplacesregardingtheinapplicabilityofSection 406 do not appeal to us and are infact not in consonance with the spirit andtrend of the criminal law. There are largenumber of cases where criminal law andcivil law can run side by side. The tworemedies are not mutually exclusive butclearly coextensive and essentially differ intheir content and consequence. The object ofthe criminal law is to punish an offenderwho commits an offence against person,property of the State for which the accused,on proof of the offence, is deprived of hisliberty and in some cases even his life. Thisdoes not, however, affect the civil remediesat all for suing the wrong doer in cases like

arson, accidents, etc. It is an anathema tosupposethatwhenacivilremedyisavailable,acriminalprosecutioniscompletely barred. The two types of actionsare quite different in content, scope andimport. It is not at all intelligible to us totake the stand that if the husband dishonestlymisappropriates the stridhan property of hiswife, though kept in his custody, that wouldbar prosecution under Section 406 I.P.C. orrender the ingredients of Section 405 IPCnugatory or abortive. To say that because thestridhan of married woman is kept in thecustody of her husband, no action againsthim can be taken as no offence is committedis to override and distort the real intent ofthe law. One of the arguments addressed bythe counsel for the respondent which hadappealed to the Full Bench of the Punjab &Haryana High Court in Vinod Kumar’s case(supra) as also to our learned BrotherVaradarajan, J., is that after entering thematrimonialhomethecustodyofthestridhanentrustedbythewifetoherhusband becomes sort of partnershipfirm and in this view of the matter thequestion of criminal breach of trust does notarise. In our opinion, it is neither appropriatenor apposite to import the concept ofpartnership in the relationship of husbandand wife for the simple reason that theconcept of partnership is entirely differentfrom that of the husband's keeping thestridhan in his custody….”[Pratibha Rani v. Suraj Kumar and Anr.AIR 1985 SC 628]

22.Nothing contrary to the ratio of the judgment has been

brought on record by the petitioner where the proceedings couldhave been stayed by the court other than the proceedings initiatedby the accused had prejudiced.

23.The law regarding ‘causing prejudice’ to an accused in thecriminal case is settled.It is well settled that where theproceedings against each other have been preferred by thecomplainant and accused, then the proceedings in the crossproceedings can cause prejudice to the accused in criminalproceedings. In the present case, it is not the case of the petitionerthat any proceedings have been initiated by him. It is an admittedcase of the parties that the civil suit has been filed by therespondent no.1 as well as the criminal defamation case at hand. Itis not the case of the petitioner that he had preferred anyproceedings either civil or criminal against the respondent no.1,pendency of which can cause prejudice to him.Thus, thejudgments relied upon by the petitioner in the case of RadheshyamKejriwal (supra), M.S. Sheriff (supra), Mausam Mia (supra), RajKumari Debi (supra), Raminder Kaur Bedi (supra), CharanjivPartap Ahluwalia (supra), Sunil Mehdiratta’s case (supra), P.

Jayappan (supra) and J.M. Lucas (supra) are of no assistance to

him.

24.The other contention of the petitioner that if the civil

proceedings as well as criminal proceedings are allowed to becontinued in the present case, then it would tantamount to doublejeopardy inasmuch as the petitioner would be convicted forcriminal defamation in case the respondent no.1 succeeds in thecriminal proceedings and would also be liable to pay damages incase the respondent no.1 succeeds in the civil proceedings.

25.Section 10 of the Code of Civil Procedure (CPC) providesfor staying of the suit. It reads :for staying of the suit. It reads :

“Stay of suits- No Court shall proceed withthe trial of any suit in which the matter inissue is also directly and substantially inissue in previously instituted suit betweenthe same parties, or between parties underwhom they or any of them claim litigatingunder the same title where such suit ispending in the same or any other Court inIndia having jurisdiction to grant the reliefclaimed, or in any Court beyond the limitsof India established or continued by theCentralGovernmentandhavinglikejurisdiction, or before the Supreme Court.”the trial of any suit in which the matter inissue is also directly and substantially inissue in previously instituted suit betweenthe same parties, or between parties underwhom they or any of them claim litigatingunder the same title where such suit ispending in the same or any other Court inIndia having jurisdiction to grant the reliefclaimed, or in any Court beyond the limitsof India established or continued by theCentralGovernmentandhavinglikejurisdiction, or before the Supreme Court.”

26.Section 300 Cr.P.C. provides that person once convicted or

acquitted cannot be tried again for the same offence.Thecontention of the petitioner is not tenable in view of the fact thatthe proceedings initiated by the respondent no.1 against him areentirely different. The matter in hand is the criminal defamationcase and the other proceeding initiated by the respondent no.1against the petitioner is the civil suit for damages. Though it iscorrect that the parties in both these cases are same, but the factremains that both the cases are different in nature. While the civilproceedings have been initiated claiming damages for damagingthe reputation of the respondent no.1, the case at hand is thecriminal defamation. Pendency of both the cases cannot be said tobe said to be amounting to double jeopardy.

27.Section 10 of the CPC provides for stay of the civil suit inwhich the matter in issue is directly and substantially in issue in apreviously instituted suit between the same parties, or betweenparties under whom they or any of them claim litigation under thesame title where such suit is pending in the same or any otherCourt in India. It is not the case of the petitioner that any civilproceedings have been initiated by him or by the respondent no.1

in which the issue is same.In the present matter, though therespondent no.1 initiated two proceedings i.e. one criminal and theother one civil, the fact remains that same are distinct and separatecases.Therefore, this Court is of the view that the petitionercannot get the stay of the criminal defamation case at hand byclaiming the benefit under Section 10 of the CPC.

28.The other contention of the petitioner is that this Court is theCourt of Record and any finding recorded by this Court is bindingon the Court subordinate to it.It was argued that the Court ofMagistrate who is conducting the trial of criminal defamation caseis subordinate to this Court and any findings recorded by this Courtwhile exercising its civil jurisdiction would be binding on theMagistrate.29.The civil jurisdiction to this Court has been conferred byDelhi High Court (Original Side) Rules, 1967. It provides that inexercise of powers conferred by Sections 122 and 129 of the CPCand Section 7 of the Delhi High Court Act, 1966, this Court madethe Delhi High Court (Original Side) Rules.As per Rule 1 ofChapter II, the jurisdiction to try and hear civil suit has been

conferred upon the Single Judge of this Court.The originaljurisdiction of this Court is governed by the statute and not by theConstitution.On the other hand, the jurisdiction vested in theMagistrate to try and decide the criminal cases is conferred by theCode of Criminal Procedure, 1973 that too by separate statute.When two separate statutes provide for separate jurisdiction to trycivil and criminal cases in two different Courts, the same cannot besaid to be binding upon each other or the Court subordinate to it.This Court is having the pecuniary jurisdiction to specified limitto try and entertain the civil suits. Earlier the civil suits institutedbefore this Court were transferred to the District & Sessions Judge,Delhi and then to the concerned Civil Judges.

30.A person may be guilty of certain acts which expose him toa criminal prosecution for criminal offence. person may usedefamatory language against another person who may recoverdamages against the maker of such defamatory statement. But thefact that decree for damages has been passed against him by thecivil court, would not stand in the way of him being prosecuted fordefamation. There is no reason to see as to how that itself operates

as bar for the respondent’s setting in motion the criminal lawwhich is separate and independent remedy available to anaggrieved person in such situation. As mentioned above, boththe matters between the parties i.e. the civil suit as pending beforethis Court and the complaint filed by the respondent no.1 beforethe learned Magistrate are separate and independent proceedingsand they can go on side by side. In my opinion, there is no bar tothe Magistrate taking cognizance of the offence which he may beof opinion to have been committed by person whose matter isstill pending in civil court as is the situation in the present case.

31.In view of the above discussion, this Court is of theconsidered opinion that :considered opinion that :

TheMagistrateisempoweredtoadjourntheproceedings under Section 309 Cr.P.C.

*There is no legal impediment to invoke the civilproceedings for defamation as well as initiating thecriminal proceedings for defamation simultaneouslyand continuation of the same.

*The proceedings initiated by the virtue of Delhi HighCourt (Original Side) Rules, 1967 to invoke theoriginal jurisdiction in the High Court ipso facto doesnot debar the Court of Magistrate (under the Code of

Criminal Procedure, 1973) to proceed with thecomplaint.

*Prejudice to the right of the accused is the primeconsideration to stay the proceedings. No prejudice tothe right of the accused has been demonstrated in thepresent case.

32.Nothing has been brought before this Court to the effect that

continuation of criminal proceedings is the abuse of the process oflaw before the learned Chief Metropolitan Magistrate and anyorder is required by this Court to secure the ends of justice. Thus,this Court is of the view that the order of the learned ChiefMetropolitan Magistrate dated 19.05.2016 continuing with theproceedings is free from perversity, impropriety, illegality andnon-sustainability which compelled this Court to exercise theinherent jurisdiction under Section 482 Cr.P.C.

33.Keeping in view the discussion made above, there is noillegality or un-sustainability in the law in continuation of thecriminal proceedings before the learned Chief MetropolitanMagistrate empowered to continue with the same. Resultantly, therequest of the petitioner to adjourn the proceedings before thelearned Chief Metropolitan Magistrate is rejected being devoid of

merit and the same is culminated into dismissal of the presentpetition.

34.Before parting with the order, this Court would like to placeit on record by way of abundant caution that whatever has beenstated hereinabove in this order has been so said only for thepurpose of disposing of the present petition. Nothing contained inthis order shall be construed as expression of final opinion on anyof the issues of fact or law arising for decision in the case whichshall naturally have to be done by the Trial Court seized of the

trial.35.Application pending, if any, is also disposed of.

36.Copy of the order be given to both the parties under the

signature of the Court Master.

OCTOBER 19, 2016dd

(P.S.TEJI)JUDGE