Civil and criminal litigation proceeding simultaneously

2013 PCrLJ 252 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 497 & 155(2)Penal Code (XLV of 1860), Ss. 420/468/471

Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document

Bail, refusal of

Accused charged with a combination of cognizable and non-cognizable offences

Permission to be obtained by the police from the Magistrate in circumstances

Civil and criminal litigation proceeding simultaneously

Scope

Right to bail for offences falling within prohibitory clause of S.497(1), Cr.P.C.

Scope

Accused owed a sum of money to the complainant in settlement of which he executed a sale deed qua a house in favour of the complainant promising to deliver the possession later on

Subsequently the accused allegedly attested a sale deed of the same house in favour of one of the co-accused, who in turn transferred the house in the name of his wife

Contentions of the accused were that date and time of alleged occurrence was unknown as was evident from the F.I.R.; that the property in question was the subject of pending civil litigation between the parties; that Ss.468 and 471, P.P.C. were bailable whereas section 468 was non-cognizable; that the co-accused, who was the principal accused of the case had already been granted bail, and that offences alleged did not fall within the prohibitory clause of S.497, Cr.P.C.

Validity

Circumstances of the case revealed that the accused kept both the complainant and the co-accused engaged simultaneously so as to leave each of them labouring under the impression that their part of the deal was legally perfect and their claim complete

Act of the accused was sheer fraud and forgery by which he swindled a huge amount from the complainant and probably also from the co-accused and his wife

Where there was blend of non-cognizable and cognizable offences, the police did not necessarily have to obtain permission from the Magistrate for conducting investigation

Prosecution, therefore, could not be blamed in the present case, if they had not gone for the invocation of S.155(2), Cr.P.C.

Accused had categorically admitted his liability to pay an amount to the complainant in the agreement that he had prepared, which directly corroborated the claim of the complainant as mentioned in the F.I.R.

Pendency of civil suits between the parties was no ground to hold that the criminal proceedings against the accused by way of present F.I.R. could not be taken to their legitimate end

Civil and criminal proceedings could proceed side by side inter se

Rule that accused had a right to bail where offences did not fall within the prohibitory clause of S.497(1), Cr.P.C., was not an inelastic rule

Bail application of the accused was dismissed in circumstances.