Staying criminal proceedings due to pending civil suits

Stay of criminal proceedings refers to the issue of not proceeding with a criminal case until a formal judicial order reopens it because the matter is sub-judice or pending in another court. The concept comes into play especially when there is a pending civil litigation on the same subject-matter because it entails a potential risk of contradictory judicial decisions.

Although our Constitution and other statutory laws do not give an explicit answer to whether criminal proceedings should be stayed when civil suits remain pending, several legal principles and judicial precedents evolved within the constitutional and statutory ambit, adding to the court’s discretion to stay the proceedings in appropriate cases.

Although our Constitution and other statutory laws do not give an explicit answer to whether criminal proceedings should be stayed when civil suits remain pending, several legal principles and judicial precedents evolved within the constitutional and statutory ambit, adding to the court’s discretion to stay the proceedings in appropriate cases.

The procedural aspects of the stay of criminal proceedings are founded upon the interpretive guidance derived from the constitutional provisions such as right to protection of law (article 31), right to fair trial (article 35), and the writ jurisdiction of the High Court Division (HCD) (article 102). On the other hand, statutory provisions from the Code of Criminal Procedure 1898 (CrPC) and the Code of Civil Procedure 1908 (CPC), and several binding legal precedents supplement these constitutional protections. For instance, sections 344 and 561A of the CrPC contemplate judicial interventions in staying criminal proceedings. The former permits adjournment or postponement of criminal proceedings, while the latter grants inherent power to the High Court Division to prevent abuse of process and to secure the ends of justice. These provisions, in different circumstances, have been applied, recognising that with parallel proceedings arising out of the same transaction may warrant an adjournment of the criminal proceedings. As of judicial precedents having binding force in genuine circumstances, the court decided whether it would apply its inherent powers in disputes, amongst others, relating to the same financial transactions, title declaration, cases of forgery, and fraud as well as prosecution under Negotiable Instrument Act 1881 (NI Act).  In case of parallel civil and criminal proceedings involving the same parties arising out of the same financial transactions, the HCD invoked its inherent power under section 561A, and stayed criminal proceedings under section 138 of the NI Act, in view of a pending Artha Rin Adalat suit (2016). The Court opined that to deposit a sum in both proceedings is likely to cause undue hardship on the accused.

However, in a 2013 case, the Appellate Division opined that a civil suit under section 42 of the Specific Relief Act, 1877 on the same cause of action, does not bar prosecution under section 138 of the NI Act. It viewed that the accused could present defence against the allegation of fraud within the criminal trial itself. Same views have been upheld in some other cases recorded in 9 BLC (HCD) 88, 11 BLC 116, and 49 DLR 258.

Again, in a 1991 case, we saw that where forgery is alleged in a criminal proceeding, and at the same time, documents in question are also the subject of a civil proceedings, the AD held that criminal proceedings may be stayed if the civil suit was filed first and involves the same documents. In scenarios involving simultaneous prosecutions under section 420 of the Penal Code 1860 and section 138 of the NI Act, no direct judicial precedent in Bangladesh currently exists. However, Article 35(2) of the Constitution and Section 403 of the CrPC (prohibition of double jeopardy) offer guidance on avoiding redundant oppressive prosecutions. In 56 DLR 622, the HCD acknowledged that the existence of a counter case arising from the same incident can justify an adjournment. This reflects a commitment against contradictory outcomes.

In summary, in the absence of any explicit rule, it is left to the court’s discretion to decide whether it would stay a criminal proceeding due to a pending civil suit. The rule on staying proceedings reflects a complex interplay of statutory discretion, constitutional safeguards, and judicial activism ensuring that the legal process is not misused as a tool of oppression, while upholding the integrity of criminal adjudication.

The writer is Judge (Joint District and Sessions Judge) at Bangladesh Judicial Service.