Vajji Venkataramesh vs Vajji Padmalatha styled as Gutts Padmalatha

Radhakrishna Rao, J.—The petitioner herein filed O.S. No. 776 of 1989 on the file of the III Additional District Munsif''s Court, Vijayawada, seeking a permanent injunction restraining the first respondent from marrying the second defendant in that suit. The respondent filed O.P. No. 182 of 1988 on the file of the II Additional Subordinate Judge, Vijayawada, u/s 12(1)(c) of the Hindu Marriage Act seeking a declaration that the marriage between her and the petitioner is vitiated by force and fraud and to annul the marriage by a decree of nullity. The respondent''s brother filed a complaint against the petitioner and 23 others and the same was registered as Cr. No. 67 of 1988 of VI Town L and O Police Station, Vijayawada, u/s 363 IPC. The suit was filed earlier to O.P. The Police filed a charge-sheet into the Court and it is registered as PRC No. 4 of 1989. The petitioner filed a counter in the O.P. and the respondent herein filed her written statement in the suit. When both O. P. and the suit were ripe for trial after framing the necessary issues, Tr. CMP No. 2 of 1979 was filed in this Court. This Court on 20-3-1989 ordered the transfer of the suit to the Court of the II Addl. Subordinate Judge, Vijayawada, which was renumbered as O. S. No. 264 of 1989, and directed the Sub-Court to dispose of both the O. P. and the suit expeditiously preferably within a period of three months from the date of receipt of the orders. The petitioner''s case is that he married the respondent on 21-6-1988 at Vaikuntapuram, Tenali and thereafter both proceeded to Madras and got the marriage registered on 29-6-1988 and returned to Vijayawada on 30-6-1988. On 1-7-1988 both went to the Police Station and he was released on bail on 6-7-1988. After passing of the order for trial of both the O.P. and the suit by one and the same officer and when they were about to be taken up for disposal, the petitioner herein filed LA. No. 2059 of 1989 in O.P. 182 of 1988 u/s 151 C. P. C. to stay the enquiry and trial in O. P. No. 182 of 1988 and O.S. No. 264 of 1989. The learned Subordinate Judge found that the civil proceedings have reached the stage of trial and the criminal proceedings are still at the committal stage before the Magistrates and besides that there is a direction of this Court to dispose of the same expeditiously, the proceedings under the Hindu Marriage Act are speedy proceedings and even the statute under the Hindu Marriage Act suggests that the proceedings shall be completed within six months and so no case has been made out and hence dismissed the application. Against that order, the present revision petition has been filed.

Sri C. Poornaiah, the learned counsel for the petitioner contended that the questions that fell for consideration and the evidence to be adduced in the O. P. and in the criminal case are one and the same and if the petitioner is compelled to participate in the enquiry into the O.P. his defence in the criminal case will be embarrassed and the petitioner will have to disclose in the O.P. his defence to the criminal charge and his evidence and the line of attack against the prosecution case and that the lower Court has not taken this into consideration. It is also contended that the petitioner''s right guaranteed under Article 20(3) of the Constitution of India would be violated in case he is compelled to participate in the present enquiry. If the lower Court proceeds with the enquiry into the O.P. the petitioner will be placed in such a situation wherein he cannot but examine himself on pain of losing his case in the O.P. as also the connected suit. If he examines himself, he will expose himself to cross-examination, the purpose of which will be to elicit information favourable to the respondent. Any such information which the respondent will try to elicit falls within the mischief of Article 20(3) of the Constitution of India.

In a recent judgment of the Supreme Court in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, , it was held that there can be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. It is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and of genera! application without regard to the particularities of the individual situation.

On the facts of this case, whether there is justification for granting stay or not has to be considered. The petitioner filed the counter in the O.P. That means he has disclosed his defence in the O. P. filed for annulling the marriage. The suit filed by him also shows that he has opened his version and the same was contested by the defendant by filing the written statement. Both parties in the O.P. as well as in the suit have stated their respective cases. If no counter has been filed in the O.P. and if the petitioner has not filed any suit, it is a different matter. Having opened the defence that is available for him and having participated in the transfer proceedings and having agreed for the speedy disposal of the case, will it lie in his mouth to say that on the ground of embarrassment in opening the case and also on the ground that his rights guaranteed under Article 20(3) would be violated, the civil proceedings have to be stayed.

Sri C. Poornaiah contended that so far as the petitioner''s rights guaranteed under Article 20(3) of the Constitution of India are concerned there is no question of estoppel or waiver. In support of his contention, he relied on a judgment of the Supreme Court in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , wherein it was held :

"The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights.. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them if those rights are violated. But the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community."

As early as in 1959 itself a Constitution Bench of the Supreme Court in Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, held that there can be no waiver of the fundamental rights founded on Article 14 of the Constitution. It is true if it is a case arising out of violation of fundamental rights guaranteed under Article 20(3) of the Constitution the petitioner is entitled to the relief that has been asked for. Here one case is on the criminal side not yet committed to the Court of Session. It is not known when it will be committed to the Session''s Court, when the trial will be commenced and when it will be completed. Whereas, the O.P. and the suit are ripe for disposal and both parties also contested the matter and there is a direction from this Court to complete the trial within three months. When the suit and the connected O P. under the Hindu Marriage Act are ripe for disposal, it has to be given preference as against the criminal case which is still at the committal stage.

Article 20(3) of the Constitution is as follows:

"No person accused of any offence shall be compelled to be a witness against himself."

In P. Parthasaradhi Rao v. The Government of Andhra Pradesh, 1975 (2) APLJ 84 while considering a case wherein the question arose when a criminal case is pending on a charge u/s 5(1)(e) of the Prevention of Corruption Act, whether the Government is empowered to direct its employee to submit the particulars of the properties possessed by him and his relatives, Chinnappa Reddy, J. (as he then was) found that the proceedings are unconnected and that is sufficient to disentitle him from claiming the right under Article 20(3) of the Constitution.

A Division Bench of this Court in Mallela Suryanarayana v. Vijaya Commercial Bank Ltd., AIR 1958 AP 756 after referring to the leading case of the Supreme Court in M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, held :

"Be that as it may, the law as propounded by the highest court in our land is that the immunity does not extend to civil proceedings. We fell that the fact that the answers given by a person might tend to subject him to a criminal prosecution at a future date will not attract the protection envisaged by Article 20(3). In other words, the fact that the answers might involve a disclosure of crime or that they might form the basis of prosecution in future, would not make any difference. It looks to us that the intendment of this Article was to afford some protection to a person involved in a crime, having regard to the predicament in which he would be placed and that is revealed by the juxtaposition of that clause. It was ruled by the Supreme Court in Maqbool Hussain Vs. The State of Bombay, (F), that the proceedings contemplated by Article 20(3) are of the nature of criminal proceedings before a Court of law or a judicial tribunal."

XX XX XX We may, in this connection, extract the passage in which the learned Judge summed up the position pertaining to this Article.

"Analysing the terms in which this right has been declared in our Constitution it may be said to consit of the following components (1) it is a right pertaining to a person "Accused of an offence; (2) It is a protection against "compulsion to be a witness"; and (3) It is a protection against such compulsion resulting in his giving evidence "against himself."

The Division Bench also found :

"To stretch this prohibition to civil cases would be to put & premium on dishonesty. We do not think that this is the purpose underlying Article 20(3) and the intention of the Constitution makers."

In Assumpcao Ribero v. Elaviano Boaventura Salvador, AIR 1979 Goa, Daman and Diu, 37 the written statement was not filed and the date for commencing the criminal case has been fixed. Under those circumstances relying on the judgment of the Supreme Court in M.S. Sheriff Vs. The State of Madras and Others, the learned Judicial Commissioner granted stay of the trial of the suit. The ground on which the cases rests is ''cause for embarrassment''. Likelihood of embarrassment as has been held in the judgment of the Supreme Court in M.S. Sheriff''s case (cited supra) is not a ground to contend in this case particularly when the petitioner has filed the counter and the defendant filed her written statement in the suit and agreed for the disposal of the suit. The O.P. and the original suit are ripe for disposal and the criminal case is still at the initial stages. Under these circumstances it cannot be said that there was any cause for or likelihood of embarrassment to the petitioner such as existed in the cases cited above. The compulsion theory put forward by the petitioner will not apply in connection with civil cases.

In Nandini Satpathy Vs. P.L. Dani and Another, while dealing with the relative scope of Article 20(3) of the Constitution and Section 161(2) of the Criminal Procedure Code, the Supreme Court pointed out that the interrogation can go on. In the present case, the ''compelled testimony'' as is pleaded by the petitioner cannot be accepted as the rights guaranteed under Article 20(3) of the Constitution cannot be extended to civil cases. That benefit can be extended only to criminal cases. Even in cases where an FIR has been registered, he must be deemed to be an accused.

It is to be noted here that in criminal cases the burden of proof lies on the prosecution 10 prove the case beyond reasonable doubt and the accused sometimes need not be examined. It is left for the accused to examine himself or not. If the prosecution fails to prove their case, the accused will succeed. But in the civil cases it is otherwise. The petitioner himself filed the suit and he also filed the counter in the O.P. Therefore, he cannot be permitted now to say that there is likelihood of the otherside coming to know of his line of defence and he will be embarrassed. Therefore, there is no justification for the petitioner to seek stay of the trial of the OP. and the suit on the ground that his defence in the criminal case will be embarrassed and there is no question of ''testimonial compulsion'' in civil cases. The petitioner in this case was defended by the advocates and in the Tr. CMP in this Court he himself volunteered for the speedy disposal. Therefore, there is no question of violation of the petitioner''s rights guaranteed under Article 20(3) of the Constitution and the question of likelihood of embarrassment does not arise. The learned Subordinate Judge has rightly dismissed the application. It is also pertinent to note here that this Court passed the order in Tr. C.M.P. in March 1989 to dispose of the suit within three months and when the trial. Court insisted for the trial of the suit, the petitioner came up with the present petition u/s 151 CPC. It is only to protract the trial Only, the petitioner has filed this petition. Even the Hindu Marriage Act suggests that the proceedings shall be completed within six months and that period has already been expired. Here it is case that by fraud and coercion the marriage has taken place and for annulment of the marriage u/s 12(1)(c) of the Hindu Marriage Act. When serious allegations are made and the O.P. is for annulment of the marriage and when the statute prescribes six months'' time for disposal, it is the duty of the Court to dispose of the case as expeditiously as possible. Hence the lower Court is directed to dispose of the suit and the O.P. as expeditiously as possible preferably within two months from the date of the receipt of these orders.

The revision petition is dismissed. No costs.