It’s generally seen that few lawyers subscribe to the myth of stay of civil case during pendency of a criminal case instituted on the same cause. However, this is wholly far from truth.
The general tendency is to believe that civil case is to be stayed till the time guilt is decided by the criminal court. Many advocates believe that accused cannot be compelled to disclose his defence by way of written statement in the civil case whilst a criminal trial is pending against him. Some also argue that criminal case, being more serious in nature, must be given precedence and the civil case ought to be stayed amongst the two. It is also a general belief that if the two cases go on simultaneously, one’s outcome will affect the other and therefore would prejudice the other court. Thus, it is thought that criminal court should go ahead with the matter and determine upon the guilt of the accused after which the finding can be used by the civil court to decide the case.
However, a plain reading of relevant laws shows the gross error of the aforesaid view. There are tonnes of judgments on the point (which can be easily looked up!). However, instead of reproducing the same, I would focus on the legal concepts underlying them for a better conceptual understanding. The following points are to be considered in this regard:
Judgment of one court is not relevant upon the other except for specified purposes.
The Indian Evidence Act deals with relevance of judgment of one court upon another. Section 40 of the Evidence Act makes it plain that the existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.
Section 41 provides for relevancy of judgments passed in the exercise of probate, matrimonial admiralty or insolvency jurisdiction by the Competent Court. It reads as follows :
“S. 41. Relevancy of certain judgments in probate, etc., jurisdiction.—A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof— that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.”
“S.42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.—Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.”
18. Section 43 provides that the judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of the Evidence Act.
Thus, it is clear that judgment of one court is irrelevant in any other case except in cases of probate, insolvency etc. (those provided by Section 41). In any other case, a judgment is relevant only if it relates to matter of public nature relevant to the case being trial; and even then, that judgment is not conclusive proof of what it states. [Most judgments on the topic do not elaborate upon “matters of public nature relevant to enquiry”. The same may be looked up separately. Suffice is to say that such matters would be few and far between].
Statement of accused in civil case cannot be proved to his detriment in criminal case against him.
Another apprehension of the lawyers that the statements made in the civil case by the accused will prejudice the criminal court is also unfounded in law. This is because Section 132 of the Evidence Act takes care of such an eventuality:
132. Witness not excused from answering on ground that answer will criminate.—A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
(Proviso) —Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
Thus, what an accused says in the civil case cannot be proved against him in the criminal case except of the limited purpose of prosecution for perjury.
Compulsion to file written statement in civil case is not self-incrimination.
Another argument taken by a protagonist for stay of civil case is that by compelling accused/defendant to file a written statement his right under Article 20 of the Constitution is violated. This argument again is quite untrue. This is because, when the safeguards as aforesaid take care of all apprehensions of prejudice in criminal case, it cannot be said that by filing written statement, the accused/defendant would be a witness against himself.
Thus, there is no reason why a civil case, or a criminal case for that matter, should be stayed during pendency of either of them. However, the Supreme Court of India, in its nascent days, had spoken of one limited ground on which the civil case should be stayed. The said is “embarrassment caused to the accused“. The said “embarrassment” has not been much elaborated upon in the judgments on the topic and appears to be some ancient legal mysterious term (Do comment if you have a hint of the term!).