PETITIONER: RANENDRA CHANDRA BANERJEE Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 18/02/1963 BENCH: <NAME>, K.N. BENCH: <NAME>, K.N. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C. CITATION: 1963 AIR 1552 1964 SCR (2) 135 CITATOR INFO : RF 1964 SC 600 (139) RF 1974 SC2192 (65) RF 1976 SC1766 (6) RF 1976 SC2547 (13) D 1978 SC 363 (11) ACT: Public Servant--Probationer--Discharge from service for unsatisfactory work--If entitled to Protection under the Constitution and the Rules--Civil Services (Classification, Control and Appeal) Rules, rr. 3 (a), 49, 55-B-Constitution, of India, Art. 311 (2). HEADNOTE: The appellant was appointed on probation, for one year as Programme assistant on May 3, 1994 on condition that his services might be terminated without any notice and cause being assigned during that period. He agreed and joined service on these terms on July 4, 1932, he was called upon to show cause why his services should not be terminated and as the explanation given was not satisfactory, his services were terminated after August 31, 1952. On an application moved under Art. 226 of the Constitution <ORG> dismissed the application and held that the appellant was not entitled to the protection of Art. 311 (2) of the Constitution, that in. 49 and 55-B of the Civil Services Rules did not apply and that he was governed by the contract of his service. Held, that in the present case the appellant was a probationer and the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Art. 31 1. As a probation he, would .be liable to be discharged during that period subject to the 136 rules in force in that connection and as Explanation 2 to r: 49 had been deleted long before the action was taken, he was not entitled to the protection of Art. 311.  <CITATION> ,  S. C. R. 828 and <CITATION>  1 S.C.R. 606, referred to. Held, further, that r. 53-B would apply to the appellant and was not excluded by r. 3 (a). The purpose of a notice under r. 55-B was to ascertain, after considering the explanation which a probationer may give, whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those grounds was duly considered before an order was passed. In the present case therefore, the appellant was given the opportunity as envisaged by r. 55-B and the appeal therefore, must be dismissed. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal 271 of 1962. Appeal from the judgment and order dated May 18, 1959 of <ORG> (Circuit Bench) at Delhi in L. P. A. No. 24-D of 1956.

<NAME>, for the appellant.

<NAME>, <NAME> for <NAME>, for the respondents.

1963. February 18. The judgment of the court was delivered by <NAME> an appeal on a certificate granted by <ORG>. The appellant was selected for the post of Programme Assistant on May 3, 1949 and was appointed on probation for one year, and the letter of appointment said that during the said period his services might be determinated without any notice and without any cause being assigned. He was asked to accept the offer on this condition. The appellant accepted the offer and joined service on June 4, 1949. His period of probation expired on June 3, 1950, but it was extended from time to time. On July 4, 1952, the appellant was informed that his probation period could not be extended and was called upon to show cause why his services should ' not be terminated. The appellant showed cause. He was finally in- formed that the explanation given by him was not satisfactory and that his services were to be terminated after August 31, 1952.

The appellant then filed a petition under Art. 226 of the Constitution in <ORG> and his main contention was that he was entitled to the protection of Art. 31 1 (2) of the Constitution and as this was not afforded to him the order terminating his services was illegal. Besides it was urged on his behalf that he was governed by rr. 49 and 55-B of the Civil Services (Classification, Control and appeal) Rules (hereinafter referred to as the Rules) and therefore lie was entitled to the protection of those rules. As however his services had been terminated without compliance with those rules he was in any case entitled to reinstatement.

<ORG> held that the appellant was not entitled to the protection of Art. 311 (2) of the Constitution. It further held that rr. 49 and 55-B of the Rules did not apply to the appellant and he was governed by the contract of his service which provided that his services might be terminated without any notice and without any cause being assigned during the period of probation. <ORG> further held that rr. 49 and 55-B would not in any case apply to the appellant in the face of the contract under which he was appointed in view of r. 3 (a) of the Rules. The petition was consequently dismissed, but <ORG> granted a certificate to the appellant that the case was a fit one for appeal to this <ORG>; and that is how the matter has come up before us.

It, is not in dispute that the appellant was never confirmed in his appointment. It is also not in dispute that though the letter of appointment said that the appellant will be on probation for a period of one year, his probation period was extended from time to time. We agree with <ORG> that though the letter of appointment did not say in so many words that the probation was likely to be extended, it was implicit therein that the probation would continue till such time as the appellant was confirmed or discharged and so would the-term in the appointment letter that his services were liable to be terminated without any notice and without any cause being assigned, during the period of probation. The first question that falls for determination is whether the appellant is entitled to the protection of Art. 311 (2); for if he is entitled to that protection it is not disputed that that provision was not complied with in this case before his services were terminated. It is now well settled that the protection of Art. 311 of the Constitution applies to temporary government servants also where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment. But it is equally well settled that where the services of a temporary government servant are terminated not by way of punishment, Art. 311 will not apply and the services of such a servant can be terminated under the terms of the contract or by giving him the usual one month's notice . [see, <CITATION> (1)]. Further it is equally well settled that a government servant who is on probation can be discharged and such discharge would not amount to dismissal or removal within the meaning of Art. 311 (2) and would not attract the protection of that Article where the services of a probationer are terminated in accordance with the rules and not by way of punishment.

(1)[1958] S. C. R, 828.

A probationer has no right to the post held by him and under the terms of his appointment he is liable to be discharged at any time during the period of his probation subject to the rules governing such cases : [see <CITATION> (1)]. The appellant in the present case was undoubtedly a probationer. There is also no doubt that the termination of his service was not by way of punishment and cannot therefore amount to dismissal or removal within the meaning of Art. 311. As a probationer he would be liable to be discharged during the period of probation subject to the rules in force in that connection. <ORG> therefore was right in holding that the appellant was not entitled to the protection of Art 311 (2) of the Constitution. It is however urged on behalf of the appellant that the rules themselves made it obligatory that Art 311 (2) should be complied with before the services of a probationer were terminated. In this connection reliance is placed on Explanation 2 to r. 49 of the Rules, as amended of October 10, 1947. That Explanation read as follows : - "The discharge of a probationer whether during or at the end of the period of probation, for some specific fault or on account of his unsuitability for the service, amounts to removal or dismissal within the meaning of this rule." Now if this Explanation were in force in 1952 when action was taken against the appellant, his contention that Art. 311 (2) applied to him would be correct, But we find that r. 49 was further amended in November 1949 and by that amendment Explanation 2 was deleted, and a new Explanation, which took the place of Explanations 1 and 2 of the rule as it 'Stood 'after the amendment of October 10, 1947 (1)  S.C.R. 606, was substituted. This new Explanation which was in force at the relevant time, is in these terms "The termination of employment-

(a) of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service ; or

(b)

(c) does not amount to removal or dismissal within the meaning of this rule or of rule 55."

Therefore when action was taken against the appellant in 1952, it was this Explanation which governed the appellant and accordingly if his services were terminated in accordance with- the terms of his appointment and the rules governing his probationary service and not as a measure of punishment, the appellant cannot claim the protection of Art. 311 (2). His contention based on Explanation 2 to r. 49 as it existed after the amendment of October, 1947 must therefore fail as that Explanation had been deleted long before action was taken against the appellant. The main contention of the appellant therefore that he was entitled to the protection of Art. 311 must fail.

In the alternative, it has been urged on behalf of the appellant that he was entitled to the protection of r. 55- B and as that rule was not complied with, the termination of his service was illegal. <ORG> held that r. 55-B would not apply to the appellant because in the letter of appointment issued to him it was said that his services were liable to be terminated without any notice and without any cause being assigned. The reason why <ORG> held that that term in the letter of appointment would prevail over r. 55-B is that where there is conflict between the terms of contract and the rules, the former must prevail, under r. 3 (a). Two questions thus arise in this connection the first is whether in view of r. 3 (a) the appellant will not be entitled to the protection of r. 55-B, and the second is whether he was afforded the protection of r. 55-B before action was taken to terminate his service if that rule applies. Rule 55-B was inserted in the Rules in November, 1949 and reads thus :-

"Where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment."

This rule would clearly apply to the appellant who was a probationer as it was in force at the relevant time, unless r. 3 (a) makes it inapplicable in view of the term mentioned above in the letter of appointment issued to him. Rule 3

(a) lays down-

"These rules shall apply to every person in the whole-time civil employment of a <ORG> in India (other than a person so employed only occasionally or subject to discharge at less than one month's notice) except-

(a) persons for 'whose appointment and conditions of employment special provision is made by or under any law for the time being in force ;

(b) x x x x x x x x x x x x x x"

Rule 3(a) thus excludes the application of the Rules only in case of persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force. It has not been shown to us that any special provision has been made as to the appointment and conditions of employment of persons in the all-India Radio service by or under any law for the time being in force. It cannot be said therefore that the term already mentioned, which appears in the letter of appointment issued to the appellant, is a special provision by virtue of any law or was inserted under any law for the time being in force. That term is nothing more than the usual term one finds in letters of appointment issued to persons appointed on probation. <ORG> was therefore in our opinion not right in holding that r. 55-B will not apply to the appellant because of this term in the letter of appointment issued to him. We hold that r. 55-B will apply to the appellant and is not excluded by r. 3 (a).

The next question is whether r. 55-B was complied with. The facts in that connection are these. On December 6, 1951 soon after the appellant's probation was extended up to June 3, 1952, he was informed that during the period he had been employed his work had been found to be much below the standard required for the post. The main defects that were found were also pointed out to him, namely, "(i) immature taste, (ii) cannot be entrusted to work without"supervision, and (iii) has few ideas but cannot think logically and plan systematically." He was therefore given an opportunity to remedy the defects and to make attempts to bring himself up to the standard at least of an average Programme Assistant. He was further informed that he should do so by systematic concentration on his subjects, application to his job and by making wider studies and contacts. He was told to seek guidance and help of his senior officers wherever required in effecting the necessary improvement. Finally he was told that it would not be possible to give him any further extention of probation after the present one and that if his work during that period did not come up to the required standard, his services might have to be terminated. The appellant thus had been warned to improve his work as far back as December, 1951. On July 4, 1952, the appellant was given a notice by which he was afforded an opportunity to show cause why his services should not be terminated and was informed that any representation made by him in this regard would be duly considered. The notice said that the appellant's work had not come up to the average standard of a Programme Assistant and four defects were pointed out, namely, (i) immaturity in taste, and want of tact and discretion, (ii) inability to think logically and plan systematically, (iii) want of programme sense and background necessary for an average programme man, and (iv) he could not be entrusted to work without supervision. The appellant gave his explanation in reply to this notice which was duly considered and on July 31, 1962, he was informed that his explanation had not been considered satisfactory and therefore his service would be terminated after August 31, 1952.

It has been contended on behalf of the appellant that this was not sufficient compliance with r. 55-B. That rule lays down that the probationer shall be apprised of the grounds on which it was proposed to terminate his services and given an opportunity to show cause against it. We are of opinion that the appellant's contention must be rejected. The appellant was apprised of the grounds on which it was proposed to discharge him. But what is urged is that the elaborate procedure provided in r. 55 'should have been gone through under r. 55-B also. Rule 55 however deals with cases of removal, dismissal or reduction in rank, which are specifically covered by Art. 311 (2) of the Constitution and the procedure prescribed therein is meant for these three major punishments. That procedure is not meant to be applicable under r. 55-B which deals with the discharge of a probationer which is not a punishment at all. Therefore in a case covered by r. 55-B all that is required is that the defects noticed in the work which make a probationer un- suitable for retention in the service should be pointed out to him and he should be given an opportunity to show cause against the notice, enabling him to give an explanation as to the faults pointed out to him and show any reason why the proposal to terminate his services because of his unsuitability should not be given effect to. If such an opportunity is given to a probationer and his explanation in. reply thereto is given due consideration, there is in our opinion sufficient compliance with r. 55-B. Generally speaking the purpose of a notice under r. 55-B is to ascertain, after considering the explanation which a probationer may give whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those grounds is duly considered before an order is passed. This is what was done in the present case and it cannot therefore be said that the appellant was not given the opportunity envisaged by r. 55-B. We therefore dismiss the appeal, though for slightly different reasons. In the circumstances there will be no order as to costs.

Appeal dismissed.


<NAME>, J.

1. This rule was issued to show cause (1) why the proceedings now pending against the petitioner <NAME> before the Magistrate should not be quashed, upon the ground that on the facts disclosed in the opposite party's complaint the case does not fall within Section 499 of the Indian Penal Code, or (2) why the proceedings should not be stayed, until the decision of the suit now pending between the two parties in <ORG>.

2. The first of these grounds clearly fails, The complaint of the opposite party <NAME> undoubtedly charges the petitioner with conduct, which prima facie amounts to the offence of defamation. It charges the petitioner with having defamed the opposite party (1) by means of oral statements made to other persons; and (2) by having presented a petition to the District Registrar of Assurances, representing that a deed of release purporting to have been executed by her in favour of <NAME> was a forgery; and that <NAME> had at the time of its registration falsely caused some one to personate her, <NAME>, and to register the deed in her name. Whether these imputations are true or not; and whether or not they are protected by any of the exceptions to Section 499 of the Penal Code, are questions which are, of course, to be decided by the Magistrate, when he comes to try the case.

3. As to the second ground on which this, rule was granted, it is to be observed that the case against the petitioner was instituted before the Magistrate on the 8th July 1895. The civil suit, which the petitioner instituted against the opposite party, was brought on the 12th December 1895. It may have been brought at the suggestion of the Magistrate, but it would appear as if it were now being used by the petitioner as an answer to, and as a shield against, the criminal charge brought against her before the Magistrate. However this may be, the petitioner being the plaintiff, has the command of that civil suit. She can prolong the proceedings in it at her pleasure, and if the prosecution of the criminal proceedings against her are made dependent on the prosecution by her of the civil suit, it is scarcely to be expected, I think, that she will be expeditious in bringing the civil suit to an end. In these circumstances I do not think, it would be right to postpone the criminal proceedings till after the termination of the civil suit. Secondly, it has been held in a <ORG> decision of this Court that this Court has no power to direct that criminal proceedings should be stayed until the disposal of a civil appeal in which the question at issue in these criminal proceedings shall have been decided, [In the matter of <NAME>]. <ORG> in the case of Shri Nana Maharaj I.L.R. 16 Bom. 729 has laid down that criminal proceedings arising out of a civil litigation should not, as a rule, go on during the pendency of the litigation; but, on the other hand, in the case of Devji Valad Bhavani I.L.R. 18 Bom. 581 they have apparently recanted and have said that it is not an invariable rule that criminal proceedings should in such circumstances be stayed. But whatever the rule pi <ORG> may be, there is no decision of this Court in any way weakening the force of the decision of the <ORG> of this Court referred to above.

4. Thirdly, it is a well known rule of evidence that a judgment in a criminal case cannot be received in a civil action to establish the truth of the facts upon which it is rendered, and that a judgment in a civil action cannot be given in evidence for such a purpose in a criminal prosecution. (Field's Evidence, 5th edition, p. 338, and the cases there cited; also <ORG>, 8th edition, 1693). Hence, even if the proceedings against the petitioner before the Magistrate were stayed until after the decision of the civil suit, the decision of the civil suit could not properly affect the action of the Magistrate. Whatever the nature of the decision of <ORG> the Magistrate ought to decade the question of the petitioner's criminality for himself, and would not be bound blindly to follow the decision of the civil suit.

5. Fourthly, the case against the petitioner has been pending since the 8th July last. It seems manifestly inexpedient to allow any further delay in it. It ought, I think, to be taken up and decided one way or the other at once.

6. Finally, I would observe that it seems very doubtful if we have any power to pass the order we are invited to pass, viz., to quash the proceedings before the Magistrate. No section of the Criminal Procedure Code expressly authorises us to quash pending proceedings. Section 439 read with Section 423 authorises us to interfere in the case (1) of an acquittal; (2) of a conviction; and (3) of an appeal from any other order. The learned Counsel has failed to point out to us any order of the Magistrate, the alteration or reversal of which would have the effect of quashing the proceedings. He invites us to quash the Magistrate's implied order, as he says "to go on with the proceedings." I do not, however, see how we can reverse or alter an implied order not to be found on the record. The provisions of Section 15 of this <ORG>'s Charter of 1861 would also not seem to give us power to interfere in this case. Section 28 of the Letters Patent of 1865 gives us power to revise all such criminal cases tried by any officer or <ORG> possessing criminal jurisdiction, as were formerly subject to revision by the High <ORG>. But here, it appears to me, there is no case tried by any officer or <ORG> possessing criminal jurisdiction for us to revise.

7. For all these reasons I would discharge the rule.

<NAME>, <NAME>

8. I agree with my learned colleague in holding that this rule should be discharged; but I am bound to say at the same time that I am not prepared to accept some of the views that have been expressed by him so far as they bear upon the second branch of the rule.

9. My learned colleague seems to be of opinion that in a matter like this we have no authority to interfere with the proceedings of the Magistrate, so as to stay the proceedings till the decision of the civil suit, which has been instituted by the petitioner.

10. In the Full Bench decision of this <ORG> in the matter of the petition of <NAME> which is said to support that view, the question arose whether, when <ORG> directs that criminal proceedings should be taken against a party to a suit before it for perjury or forgery, <ORG> has power, on an appeal being preferred against the decision of that <ORG>, to direct the proceedings in <ORG> to be stayed until the appeal shall have been heard and determined. The case was governed by the Criminal Procedure Code of 1861, and it was held that, as no appeal was given either by the Code of Criminal or Civil Procedure against orders which were left to the discretion of <ORG>, either £615] granting, or revoking, sanction to criminal prosecution under Section 169 or Section 170 , or against an order sending a case for investigation before a Magistrate under Section 171 of the Code of Criminal Procedure; and that, inasmuch as no special provision had been made by that Code for cases of sanction under Section 169 or Section 170 , or in respect of orders for investigation under Section 171 , this <ORG> had no authority, either in the exercise of civil or criminal jurisdiction, to entertain an appeal against any such sanction or order; and Sir <NAME> further observed that" it cannot, as <ORG>, reverse such sanction or order upon the ground that it was not warranted by the facts, for as <ORG> it cannot reverse an order except for error in law;" and, further, "if the <ORG>, as a <ORG> of Appeal or as <ORG>, cannot reverse or alter such an order, I cannot see any inherent authority which it has to stay proceedings."

11. So far as the law, as it then stood, is concerned, it may be taken that an order for sanction for prosecution, or an order by a civil <ORG> sending a case for investigation by a Magistrate cannot be interfered with, either by way of an appeal or by way of motion to this <ORG>: and I might here point out that under Section 405 of the Code of 1861 this <ORG> could only interfere in revision, if the sentence or order complained against was contrary to law. The powers given to this <ORG> by the Code of 1872 were very nearly the same. It could only interfere under the revisional section, if there had been a material error in a judicial proceeding; see Section 297 . The Code of 1882, however, has made a substantial change in the law in this respect. Section 195 of that Code, which authorizes a <ORG>, civil or criminal, to give sanction for the prosecution of a person, provides that any sanction given, or refused, may be revoked or granted, by any authority to which the authority giving or refusing it is subordinate. Section 476 authorizes a <ORG>, when it is of opinion that there is ground for enquiring into any offence referred to in Section 195 , to send the case for enquiry or trial to a Magistrate, and under Section 439 this <ORG> may, in its discretion, exercise any of the powers conferred on a <ORG> of Appeal by Sections 195 , 423 , 426 , 427 and 428 . So that it appears to be quite clear that in matters falling either under Section 195 or under Section 476 , this <ORG> has the power to interfere with a sanction given under Section 195 , or an order for prosecution made under Section 476 . And I might here refer to the case of Jankee Bullubh Sen B.L.R. F.B. 716 also decided by a Full Bench of this <ORG>, where, although this <ORG> declined to interfere with the order of the Civil <ORG> for the prosecution of a witness in a Criminal <ORG>, they did not doubt their power to interfere under their general powers of superintendence over the lower <ORG>s. That this <ORG> has often interfered with the orders made under Sections 195 and 476 will be seen from the case of In the matter of <NAME> 730; and in the case of <NAME> 349 it was held that under Section 439 of the Code this <ORG> has the power to interfere with the order of a Subordinate <ORG>, whether made under Section 195 or Section 476 of the Criminal Procedure Code, and to determine whether the discretion conferred by those sections has, or has not, been properly exercised. In the first mentioned case of <NAME> 730 it was also held that if this <ORG> had the power to interfere with an order under Section 476 , it had equally the power to deal with the order that resulted from it, namely, the issue of warrants under that section.

12. I might here add that Section 15 of the Charter Act gives <ORG> powers of general superintendence over all <ORG>s subject to their appellate jurisdiction, and Section 28 of the Letters Patent declares that <ORG> of Judicature at Fort William in Bengal shall be <ORG> from the Criminal <ORG>s, subject to its appellate jurisdiction; and that it is empowered to revise all cases tried by any Officer or <ORG> possessing criminal jurisdiction, subordinate to <ORG>. Section 29 lays down that <ORG> shall have power to direct the transfer of any criminal case or appeal from any <ORG> to any other <ORG> of equal or superior jurisdiction, and also to direct the preliminary investigation or trial of any criminal case by any Officer or <ORG> otherwise competent to investigate or try it, though such case belongs in ordinary coarse to the jurisdiction of some other Officer or <ORG>. And I do not see why, if this <ORG> is possessed of all these large powers, it has not the power to order a Magistrate to stay proceedings, if a sufficient cause in that behalf is made out. At the same time I feel bound to say that when the <ORG> has given to a Magistrate the power to regulate the proceedings in his own <ORG>, the discretion should ordinarily be left to the Magistrate either to stay proceedings or not, as he, in the circumstances of the case, may think it right and proper.

13. Turning now to the facts of the present case, so far as they may be gathered from the record now before us, it appears that the complainant, <NAME>, insists that a deed of release, bearing date the 24th April 1895, was duly executed by the petitioner, <NAME>, and was duly registered by the Registrar of Deeds, but that in a petition subsequently presented by her to the Registrar, and in oral statements made by her to various individuals, <NAME> impugned without any justifiable cause the said document as a forgery concocted by <NAME>, the complainant. Upon this, a charge of defamation was laid by <NAME> against <NAME> on the 8th August 1895. But apparently nothing was done in the matter of the complaint by the complainant up to the 21st November last, when the case was adjourned for a fortnight, with a view to consult the lady defendant as to the propriety of filing a civil suit for having the document, namely, the release, declared null and void, on the ground of forgery or otherwise. The suggestion seems to have emanated from the Honorary Magistrate himself; and on the 8th December last a suit was brought to have it declared that the document in question was untrue and null and void. On the 6th January last, a copy of the plaint seems to have been produced before the Honorary Magistrate with a petition on behalf of the defendant, praying at the same time that proceedings in <ORG> might be stayed, until the decision of the civil suit then pending. The Magistrate does not seem to have made any order on this petition; but he passed certain orders upon subsequent dates-, the effect whereof was to continue the proceedings. I might here say that, in my view of the matter, if this <ORG> is entitled to interfere with the proceedings of the Magistrate, it is also empowered to set aside, or interfere with any one or all of the orders made subsequent to the 6th January last, when the defendant applied for the stay of proceedings.

14. It will be observed that the main issue which would have to be determined by the Magistrate, as also by <ORG>, would be whether the document in question is true or untrue. If it is untrue, as the defendant's case seems to be, the prosecution, as I understand the matter, must fail.

15. No doubt, even if the civil suit be decided in favour of <NAME>, that would not be conclusive so far as the prosecution in <ORG> is concerned. But it would appear that, though theoretically, the prosecution is on behalf of the <ORG>, it is in form and in substance (see the summons issued, and the proceedings) a prosecution by <NAME>, who is the defendant in the civil suit; and I am not prepared to say that the decision in the civil suit would, not be admissible in evidence in the criminal case, if, as I understand it to be, the main issue, in both the cases is identically the same.

16. In two of the cases referred to by Mr. <NAME> in his book on the Law of Evidence, 5th edition, at p. 338, as authorities for the proposition that the decision in a civil suit is not evidence in a criminal case, and that a judgment in a criminal case cannot be received in evidence in a civil action to establish the truth of the facts upon which it is rendered, namely, the case of <NAME> v. <NAME>, and the case of <NAME> v. <NAME> 5 W.R. 26 : 5 W.R. 27, where a decision of <ORG> was sought to be used as evidence in the civil suit, what this Court held was that the decision in <ORG> was not conclusive; so also in the case of <NAME> v. <NAME> I.L.R. 4 All. 97. In the case of <NAME> v. The Empress I.L.R. 6 Cal. 247, where a Sessions Judge in charging the jury referred to the judgment of <ORG> as evidence against the prisoner, and where an appeal was made to this Court, it was contended that that judgment was improperly admitted in evidence. <NAME>, J., observed as follows:

There can be no doubt that the judgment was improperly received. Technically it was inadmissible, because it was not between the same parties; the present parties technically being the Queen-Empress on, the one hand and the prisoner on the other, and the respective parties in the civil suit being the prisoner and the three defendants. Furthermore, it was not admissible on the substantial ground that, the issues in the civil and criminal suit were not identical, and that the burden of proof rested in each case on different shoulders.

17. No doubt, in a case where the issues in <ORG> are not identically the same, and the prosecution in <ORG> is really the prosecution of the <ORG>, the judgment of <ORG> would not to admissible in evidence. I observe, however, that in the case of <NAME> v. <NAME> 11 Ir. R.C. L. 198-Ex. Ch. Fisher's Common Law Digest, Vol. VI., 1031, (which is a converse case) where the grantee of an estate brought an action for trespass on the adjacent seashore between high and low water mark, and for trover and conversion of ungathered drifted sea-weed thereon, he was allowed to prove at the trial convictions at petty Sessions for trespass on the locus in quo, and an award in his favour in a former action by him against an alleged trespasser; and it was held that the general words of the patent explained by user and enjoyment, passed the seashore adjoining the lands granted down to low water mark, [See also in this connection <NAME> v. White Strange Reports 68 and Justice v. <NAME> 12 C.B. 39.

18. In the present case, the prosecution in <ORG> is for defamation, which is altogether a private prosecution, and as Mr. <NAME> observes in his Commentary on the Indian Penal Code , p. 410 (Ed. of 1884):

Such an offence (the offence of defamation) depends upon the injury to the individual affected by the calumny, and not, as in the English law, upon any supposed tendency of the act to bring about a breach of the peace.

19. No <ORG> can take cognizance of an offence like this, except upon a complaint made by the person aggrieved thereby. (See Section 198 of the Criminal Procedure Code); and such an offence is compoundable ( Section 345 ). In such a case, it seems to me rather undesirable that both the civil and criminal cases should go on simultaneously at; one and the same time.

20. In the case of Shri Nana Makaraj I.L.R. 16 Bom. 729 where a question, some what similar to that which has arisen before us, arose, <NAME>, J., observed as follows:

It appears now that the civil litigation in which the Subordinate Judge's proceedings arose is not yet ended; an appeal in the case is pending here. This Court has often acted on the principle that criminal proceedings should not go on during the pendency of civil litigation, following The Queen v. Ingham 14 Q.B. 396 and <NAME> v. <NAME> and <NAME> v. <NAME> 8 C. and P. 50. In the first of these cases the Justices refused to hear an information for perjury on the ground that the suit was still pending. <ORG> refused to compel them. Mr. Justice <NAME> said: 'The real object of such an examination before Justices is that the party accused may be put upon such terms as will make it certain that he will be forthcoming for trial. <NAME> the Magistrates, when applied to, may see no danger that he will not then be forthcoming, and they may think that justice would be prejudiced by hearing the information.

These principles ought, we think, to guide the further action of the Subordinate Judge under Section 476 , and of any Magistrate to whom he may send the accused. Whether the accused will be forthcoming or not is a question this Court cannot deal with. We think it will be sufficient to communicate these remarks to the Subordinate Judge, and we decline to make any order interfering with his discretion.

21. In a subsequent case In re Devji Valad Bhavani I.L.R. 18 Bom. 581, however, before the same <ORG>, the learned Judges thus expressed themselves:

No doubt this Court has often acted on the principle that criminal proceedings should not go on during the pendency of civil litigation regarding the same subject-matter. But we do not think that this is an invariable rule. Under the circumstances of the present case, as recited by the Subordinate Judge, there was no coarse open to him, but to make inquiries under Chapter XXXV of the Criminal Procedure Code , regarding the genuineness of the transaction put forward by the party, who applied to raise the attachment. The fact that a regular suit has now been filed to establish the genuineness of that transaction is not sufficient to enable this Court to quash the commitment regularly made by the Subordinate Judge to <ORG>, or to direct the trial to be adjourned pending the hearing of the civil suit, and possibly of an appeal and second appeal.

22. This no doubt is a modification of the principle upon which <ORG> had been acting in previous cases, and I am not myself prepared to say that as a general rule a proceeding in <ORG> should be stayed pending the decision of a civil suit in regard to the same subject-matter; but what I think I might properly say is that ordinarily it is not desirable, if the parties to the two proceedings are substantially the same and the prosecution before the Magistrate is but a private prosecution, and the issues in the two Courts are substantially identical, that both the cases should go on at one and the same time; and that it is quite open to the Magistrate, having regard to the facts of the case before him, to consider whether it is not desirable that the proceedings in his Court should be stayed till the decision of the civil suit, or for a limited period of time; and it is also quite open to him to put the defendant on terms as to appearance or otherwise if he does stay proceedings.

23. In the present case, as I have already said, the parties in the two Courts are substantially the same, and the main issue to be determined by both the Courts is substantially identical; and it would appear that the Honorary Magistrate himself threw out the suggestion that a civil suit should be brought, and the defendant has evidently acted upon that suggestion.

24. With these remarks I would discharge the rule.