This section authorizes the Magistrate to stop the criminal proceeding, at any stage, initiated through any mode expect through private complaint, without pronouncing the judgment either of acquittal or conviction and then release the accused. Order passed by Magistrate under this section is required to be backed by reasons which makes it a judicial order, amenable to revisional jurisdiction; however, it does not seek execution of bond by the accused conditional to his release. This connotation is very strong because wherever in Cr.P.C. the word ‘release’ appears it is made conditional to executing a bond or sufficient security. Sections 57(2), 124(6),173, 426, 435, 466, 496 and 497 of Cr.P.C., are referred in this respect. Whereas like section 249 of Cr.P.C., sections 59(3) and 124(1) Cr.P.C., also talk about a simple release without executing a bond or providing sufficient security. Bond is executed by the accused as an assurance to appear before the Court but when he does not remain in the process any more, execution of bond is not required.
Section 249 of Cr.P.C., cannot be think of a remedy available to order for stay of criminal proceedings because firstly, if the proceedings are pending through a private complaint, rescue under this section is not available; secondly, not requiring a bond for release of accused is an indicator that a novel situation has arisen in the proceedings which require a sine die adjournment of case without a time-bound schedule.
Thus, ‘to stop the proceeding’ stands distinguished to ‘stay of proceedings’ and ‘stay of prosecution’. Stay of proceedings is done to meet the situation when further proceeding is conditional to an order to be made by other Court, the higher Court or by the government. Instances are like as under;
1. Where any person denies the existence of public right pursuant to an order made by magistrate for removal of nuisance and magistrate considers that there is reliable evidence of such denial, he shall stay the proceeding until the matter of the existence of such right has been decided by a competent Civil Court. (Section 139-A Cr.P.C.).
2. On information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries, Magistrate after inquiry can pass an order in favour of the party but if later finds that no such dispute exist, he shall stay the proceedings. (Section 145(5) of Cr.P.C.).
3. Stay of proceedings if prosecution of offence in altered charge requires previous sanction (Section 230 of Cr.P.C.).
4. When during the course of an inquiry or trial, it appears to a magistrate that case is one which should be tried or sent for trial to the Court of Session or the High Court or by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to the Sessions Judge(Naeem) or to such other Magistrate, having jurisdiction, as the Sessions Judge, directs. (Section 346 Cr.P.C.)
5. If any party intends and intimates the Court for filing of a transfer application of case, though it shall not require the Court to adjourn the case, but the Court shall not pronounce its final judgment or order until the application has been finally disposed of by the High Court. Section 526 (
Cr.P.C.
6. Any matter pending before higher Court with an injunctive order as not to pronounce final judgment.
7. Matter for witness protection is pending with government under Witness Protection Act, 2018.
8. Stay of criminal proceedings due to pending matter in any other Court conditional to further proceedings.
Though there is no express provision in Cr.P.C., for stay of criminal proceedings on the ground that subject matter is pending determination before civil Court yet there is no specific prohibition in this respect. Therefore, trial Court is competent to stay criminal proceedings.
‘Stay of prosecution’ is discontinuation of criminal prosecution on all or any of charges in order to give a go to government decision based on public policy which is regulated through section 10(3)(f) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006.
The above section is verbatim of section 265-L of Cr.P.C., which empowers the Advocate-General to seek stay of prosecution before the High Court. Likewise, when an accused is facing a charge containing one or more heads and is convicted in any of them, the rest of the charges can be withdrawn by the prosecution or the Court at its (Naeem)own can stay the inquiry into, or trial of such charges till the conviction attains finality through Court of appeal. (Section 240 Cr.P.C.)
From the practice and procedure, it can be summarized that the most suitable situations to stop the proceedings under section 249 Cr.P.C. could be like as under but are not exhaustive;
1) During the trial witnesses of case are reported to have gone abroad, or
2) Whereabouts of witnesses are not known, or
3) Witnesses have become absconders in another case.
4) Sanction for prosecution has not been received to the Court for taking cognizance.
5) Prosecution has recommended the case as not fit for trial in the case review (Naeem)report under section 9(7) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, (the CPS Act 2006) and Court considers that the evidence is forthcoming.
6) On receipt of an interim police report under section 173 of Cr.P.C. when prosecutor examines the reasons assigned for the (Naeem)delay in the completion of investigation and considers the reasons compelling, can request the Court for the postponement of trial as authorized under section 9(6) of the CPS Act, 2006.
Of course, before resorting to stop the proceedings in situations mentioned at serial No.1 to 3, the Court in order to procure the attendance of witnesses shall adopt coercive measures of the nature as mentioned in a case reported as “MUHAMMAD SHAFI Versus ADDITIONAL SESSIONS JUDGE, KHARIAN DISTRICT GUJRAT and 8 others” (PLD 2011 Lahore 551). Stoppage of proceedings is always contingent to return of witnesses for revival of situation from the stage it was discontinued. Case reported as “Mst. SHIREEN TAJA versus THE STATE and 2 others” (2002 P Cr. L J 159) is referred in this respect.
It is trite that civil and criminal proceedings can go side by side provided subject matter before civil Court and criminal Court is the same and is required to be determined by civil court first being Court of ultimate jurisdiction. Connotation “same subject matter” does not mean only a fact in issue relating to such subject but the subject matter as a whole. In the present criminal litigation subject matter is ‘misappropriation of amount’ whether as an employee or partner whereas in civil litigation matter is of ‘entitlement of amount’. Law does not permit any person to acquire disputed amount through misappropriation. If it is permitted, this would open an absurd practice of taking the law into one’s own hands, giving an air to a mechanism of private vengeance parallel to constitutional arrangement for judicial system of the country. Even in civil jurisdiction when possession is unlawfully taken from an illegal occupant of land, Court is bound to restore it to man in possession as per section 9 of the specific Relief Act, 1877; same is the mandate of section 145 of Cr.P.C. Thus, law is very clear on the subject. The observation of learned Additional Sessions Judge that “If present case is decided earlier, the same would prejudice civil suit pending between the parties while question regarding status of petitioner as employee or business partner is a civil issue/matter to be decided in civil suit” shows his lack of knowledge on the subject. It is settled principle of law that decision of a criminal Court does not affect any question pending in civil Court between same parties because the outcomes and standard of proof in both proceedings are different, i.e., ‘preponderance of evidence’ in civil cases and ‘proof beyond reasonable doubt’ in criminal cases. Thus, neither the principle of Res-judicata nor principle of Double jeopardy is applied in any manner.
Crl. Misc.3568/24
Zahid Maqsood Butt Vs The State etc
Mr. Justice Muhammad Amjad Rafiq
07-06-2024
2024 LHC 3306
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