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1990 Supreme(Bom) 83
IN THE HIGH COURT OF BOMBAY
Ashok Agarwal, J.
Bhanu M. Vakil.... Petitioner.
Versus
Chandra Oshiram Keswani another.... Respondents.
Criminal Writ Petition No. 26 of 1989, decided on 7/8-3-1990.
Advocates appeared :
M.A. Rane and A.K. Abhyankar and V.M. Rane i/by Gagrat and Company, for the petitioner.
V.P. Vashi with Miss Neelam V. Vashi, for respondent No. 1.
P.M. Vyas, Public Prosecutor, for respondent No. 2.
Headnote:Section 630-Proceedings under-Nature of
Held.-Proceedings under Section 630 are quasi-judicial and cannot be equated with prosecutions under Penal Code or other acts providing punishment for criminal offences. Thrust of provision is more to ensure speedy recovery of possession of property of company then to sentence employee to imprisonment.
Sections 309 & 482-Whether criminal case should be stayed while civil suit is pending.
Held-It is true that ordinarily the criminal prosecution ought to be given precedence. Once instituted the criminal trial should progress expeditiously so that the guilty are brought to book and the innocent are exonerated. This should be done before the facts fade from the minds of the witnesses or the public. Such prosecutions cannot ordinarily be staved pending the civil suits which are known to take years before they are taken up for hearing and final disposal. This, however cannot be a universal rule. It would all depend upon the facts of each case and there could be cases where the stay of criminal cases would be justified.
Sections 397, 399, 482-Constitution of India, Article 227-Ioherent powers of High Court- To prevent abuse of process of Court inherent powers can be resorted to despite bar under Sections 397 and 399.
The jurisdiction of revision conferred by Sections 397 and 399 are for correcting the illegality or impropriety of a finding of a subordinate Court. It is only when then the order is shown to he illegal or improper that power of revision application under Sections 397 and 399 of the Criminal Procedure Code can be exercised. That power, however, cannot detract from the inherent power of the High Court under Section 482 the Criminal Procedure Code. Section 482 starts with the phrase nothing in this Code shall be deemed to limit". This phrase would bring within its compass the provisions of Sections 397 as also Section 399 of the Criminal Procedure Code. It is true that resort to Section 482 has to be made sparingly and in exceptional cases. It is only in cases where the High Court finds that there is abuse of the process of any Court or that it is expedient in order to secure the ends of justice that resort can be had to Section 482.
If the order is shown to be illegal or improper, the Court should exercise its jurisdiction under Section 397 or 399 of the Criminal Procedure Code If the High Court finds it necessary for the prevention of any Court or for securing the ends of justice Section 482 empowers the High Court to exercise its inherent power and in that case there can be no limitation in the exercise of that power. Similarly, if an order passed by any subordinate Court or Authority is shown to contain an error apparent on the face of the the record Article 227 of the Constitution of India empowers the High court to pass such orders as the case may require, while exercising such a power no provision under any law can be an impediment.
Section 482-Constltutlon of India, Articles 226, 227-Stay of Criminal trial-Civil suit between same parties-Normally Criminal trial not to he stayed pending decision of Civil suit - But It depends upon facts of each case-In some cases stay of Criminal cases can he justified-Held, on facts Criminal trial can be stayed.
It is true that ordinarily the criminal prosecution ought to be given precedence. Once instituted the criminal trial should progress expeditiously so that guilty are brought to book and the innocent are exonerated. This should be done before the facts fade from the monds of the witnesses of the public. Such prosecutions cannot ordinarily be stayed pending the civil suits which are known to take years before they are taken up for hearing and final disposal. This, however, cannot be a universal rule. It would all depend upon the facts of each case and there could be cases where the stay of criminal cases would be justified and this is one such case.
2. The petitioner is the original accused while the respondent No. 1 is the complainant in Criminal Code No. 76 of 1983 pending in the Court of the learned Addl. Chief Metropolitan Magistrate, 19th Court, Esplanade, Bombay. This complaint has been filed under section 630 of the Companies Act. The respondent No. 2 is the State of Maharashtra.
3. The facts of the present case, as stated in the present petition, are as under:---
The premises in dispute is a residential flat being flat No. 1-A at Alta View Co-operative Housing Society, situate at 7 Altamount Road, Bombay 400 026. This flat was originally owned by one D.D. Solanki who happened to own five flats in that building. By an agreement dated 1st May, 1968 the said D.D. Solanki gave his aforesaid flat No. 1-A to Esso Standard Eastern Incorporated, the predecessors of the Hindustan Petroleum Corporation, respondent No. 1 in the present petition. By this agreement a licence was created in favour of respondent No. 1 for a period of 10 years. On the 13th February, 1976 the petitioner was permitted to occupy the said flat as an employee of the first respondent.
4. Sometime during 1977-78 an Administrator was appointed in respect of the Alta View Co-operative Housing Society. Since Shri J.D. Solanki, who had succeeded the original owner Shri D.D. Solank, held five flats he was called upon to have four of the flats sold, not to renew licence in favour of the first respondent but to have the same vacated. On the 1st March, 1977, Shri J.D. Solanki informed the first respondent that he was interested in selling the flat for an amount of Rs. 3,50,000/- (three lakhs fifty thousand). The first respondent declined to purchase and preferred to continue as tenant. By a letter dated 26th October, 1977 Shri J.D. Solanki made a fresh offer of sale to the first respondent for Rs. 2,25,000/- (two lakhs twenty five thousand) to which the first respondent did not respond. On 17th April, 1978 Shri Solanki addressed his further letter to the first respondent stating that the Society was pressing for the sale of the flat and he was, therefore, willing to sell the same for Rs. 1,75,000/- (One lakh seventy five thousand). By a letter dated 2nd May, 1978 Shri Solanki made his final offer to the first respondent for Rs. 1,25,000/- (one lakh twenty five thousand); that in case he did not receive any reply within 15 days he would dispose of the flat to any third person. On 29th of June, 1978 Shri Solanki entered into an agreement of sale of the flat in favour of Smt. I.B. Vakil, the wife of the present petitioner. On the basis of the said agreement the shares of the Society were transferred from the name of Shri J.D. Solanki to Smt. I.B. Vakil. On 2nd July, 1978 the flat came to be transferred in the name of Smt. I.B. Vakil in the aforesaid circumstances.
5. On 13th July, 1978 the petitioner tendered his resignation in respect of his service with the first respondent. By a letter dated 1st August, 1978 the first respondent accepted the petitioner's resignation with effect from 10th August, 1978. On 8th August, 1978 Shri Solank paid an amount of Rs. 3,000/- to Smt. Vakil being the amount of three months rent held in deposit from the first respondent. By a letter dated 9th August, 1978 Shri Bhanu Vakil the petitioner requested the first respondent for permission to continue to stay in the flat for a period of four months after his resignation which request was acceded to by the first respondent by a letter dated 10th August, 1978. By a letter dated 14th August, 1978 Shri Solanki informed the respondent regarding the transfer of the flat to Smt. Vakil. He also returned the cheques towards the rent for the months of Ju
