The different standards of proof in civil and criminal proceedings and the limited application of judgments from criminal cases in civil proceedings.

ORDER :

S.M. Kantikar, Presiding Member

The Counsel for both the parties present. Arguments heard on the I.A. No. 9117 of 2014 filed by the OP-1 Dr. Tapan Mukharjee for stay of the proceedings in this complaint. The learned Counsel Mr. Partha Sil for OPs-1 and 2 argued that, on 5.3.2013 complainant filed a criminal case under Section 304A, in the Court of Chief Judicial Magistrate, 24 Paraganas. The OPs got bail and attending a criminal case. Further, in the month of August 2013, the OPs were served with supplementary charge sheet under Section 304 read with Section 7(C) of the West Bengal Clinical Establishment Act, 1950. The Counsel further submitted that, at present stage, the OPs herein are directed to file written version with affidavit on 10.2.2015. In view of above notice, if during the pendency of the above criminal case the OPs are required to file their written version, that would amount to disclosure of their defence which will amount to violation of their rights guaranteed under Article 20 of the Constitution of India and would put the Complainant into serious prejudice that too, when the trial of the criminal case has already been started. It is submitted that since in the criminal case the prosecution has to prove the case and/or to disprove the charges, the cross-examination of the prosecution witnesses on behalf of the OPs have to be made. Since, under The Consumer Protection Act, 1986 (CPA) the present complaint is to be decided in summary proceeding, the interrogatories from both the parties will lead to injustice to the OPs. It is further submitted that, the allegation in the present proceeding as well as in the criminal trial, is that the wife of the complainant died due to the criminal acts/negligence on the part of the OPs, for which the compensation have been claimed in these proceedings. Such compensation is possible to be granted by the criminal Court under Section 357 of the Code of Criminal Procedure and therefore, there is a possibility of the OPs being made liable for payment of the compensation both by this Commission as well as the Criminal Court, thereby the OPs could doubly jeopardize.

2. Further the Counsel for the OP Nos. 1 and 2 relied upon various authorities of Hon’ble Supreme Court and of this Commission like:

(i)M.S. Sheriff v. State of Madras, AIR 1954 SC 379.

(ii)Collector of Customs v. Calcutta Motor & Cycle Co., AIR 1958 Cal. 682.

(iii)State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10.

(iv)Ramanlal Bhogilal Shah & Anr. v. D.K. Guha, (1973) 1 SCC 696.

(v)M. P. Sharma v. Satish Chandra, AIR 1954 SC 300.

(vi)Nandini Satpathy v. P. L. Dani & Anr., (1978) 2 SCC 424.

(vii)Dr. V. Pahwa v. Utsab Basu & Ors., Civil Appeal No. 5477 of 2008.

(viii)Rajiv Kumar Ray & Ors. v. Dr. G.S. Dey & Ors., In R.P. No. 2717 of 2009 passed by NCDRC.

(ix)Guru Granth Saheb Sthan Meerghat Vanaras v. Ved Prakash & Ors., VII (2013) SLT 225=(2013) 7 SCC 622.

(x)Indrani Chatterjee v. AMRI Hospital, in CC No. 383 of 2013, by NCDRC.

3. The learned Counsel for the Complainant argued that, there is no bar for OPs to file a written version under Consumer Protection Act during the pendency of the criminal case. The Counsel for the Complainant relied upon the Hon’ble Supreme Court Judgment in Sh. Vishnu Dutt Sharma v. Smt. Daya Sapra in Civil Appeal No. 3238 of 2009 arising out of SLP (C) No. 10997 of 2008, decided on 5.5.2009 regarding subsequent proceedings which has observed in Para 19 as follows:

19. Reverse burden or evidentiary burden on an accused, thus, would require strict interpretation and application. However, in a civil suit such strict compliance may not be insisted upon.

If that be so, it may not be correct to contend that a judgment rendered in criminal proceeding would make continuation of a civil proceeding an abuse of the process of Court.

In this judgment, reference to M.S. Sheriff and other cases was made in the para Nos. 25, 26, 30, 31, which are reproduced as below:

25. It does not lay down that a judgment of the C