Mahaveer And Ors. vs State And Anr. on 4 May, 2001

Rajasthan High Court
Mahaveer And Ors. vs State And Anr. on 4 May, 2001
Equivalent citations: 2007 (3) WLN 171
Author: B Shethna
Bench: B Shethna

JUDGMENT

B.J. Shethna, J.

1. By way of this petition, the petitioners accused have prayed for quashing the impugned order dated 2.3.1998 passed by the learned Additional Chief Judicial Magistrate No. 1, Udaipur whereby the learned Magistrate took cognizance against the accused petitioners No. 1, 3, 4 and 5 for offence Under Section 498-A I.P.C. and against the accused petitioner No. 2 Under Section 498-A and 354 I.P.C.

2. On 8.1.1997, the respondent No.2 Smt. Shashikala W/o Mahaveer Kumar (present petitioner No. 1) filed a complaint before the learned Additional Chief Judicial Magistrate No. 1, Udaipur. She has stated in it that the accused petitioner No. 1 Mahaveer Kumar is her husband, the accused petitioner No.2 Sagar Mai is her father-in-law, the accused petitioner No.3 Pavan Kumar is her brother-in-law, accused petitioner No.4 Smt. Tulsi Devi is her mother-in-law and accused petitioner No. 5 is her sister-in-law. She has stated that all the five accused were harassing her within short time of her marriage for dowry and the accused Sagarmal; who is her father-in-law, tried to outrage her modesty, thereby they have committed offence punishable Under Section 498-A I.P.C. and in addition to that, the petitioner No.2 has committed offence punishable Under Section 354 I.P.C. She had also complained against all the accused for offence punishable Under Sections 323, 406 and 504 I.P.C. but the learned Magistrate after considering the statement of the complainant Smt. Shashikala and her witnesses found that no case was made out against any of the accused for offence Under Sections 323, 406 and 504 I.P.C. and, therefore, refused to take cognizance by his impugned order dated 2.3.1998. However, he was satisfied that a prima-facie case was made out against the present petitioners for the offence Under Section 498-A I.P.C. and in addition to it, prima-facie offence is made out Under Section 354 I.P.C. against petitioner No.2.

3. This has been challenged by way of this misc. petition before this Court by the present petitioners-accused.

4. Earlier notice was ordered to be issued on this petition on 13.8.1998 and the learned P.P. Mr. Upadhyay was directed to accept notice for respondent No. 1. Thereafter, the petition was admitted on 7.1.1999 as though served, no one appeared for the respondent No.2 and the interim order granted earlier was ordered to continue till the final disposal of this petition.

5. This petition was placed before me yesterday and it was argued by the learned Counsel for the petitioner that there is already a decree of restitution of conjugal rights passed in favour of petitioner No. 1 husband, therefore, once there is a clear finding recorded by the civil court in favour of the petitioner, then criminal court cannot take cognizance in the matter. For producing the copy of the said judgment passed by the Family Court, Udaipur, this petition was placed today.

6. Today, learned Counsel for the petitioner has produced the copy of the judgment and decree dated 2.12.1997 passed by the Family Court, Udaipur. He submitted that the learned Judge of Family Court, Udaipur in a petition filed by husband for restitution of conjugal rights against his wife has clearly found that the respondent wife failed to prove her case regarding harassment for dowry and came to the conclusion that without any valid reasons, she was not staying with her husband, therefore, he ordered the respondent wife to fulfil her marriage obligation and stay with her husband. He, therefore, submits that the learned Magistrate was wrong in taking cognizance against the petitioner No. 1 as well as other accused petitioners who are his close relatives. He, therefore, prayed that this Court may quash the proceedings pending before the Court of Additional Chief Judicial Magistrate No. 1, Udaipur in criminal case No. 52/1998 filed by the respondent No.2 for the aforesaid offences. In support of his submission, Mr. Thanvi has placed reliance upon the judgment of Hon’ble Supreme Court in case of Karamchand Ganga Pershad and Anr. v. Union of India and Ors. wherein the Hon’ble Supreme Court observed in para 4 that ‘…It is a well established principle of law that the decisions of civil courts are binding on criminal courts. The converse is not true….

7. There cannot be any quarrel with the principle Laid down by the Hon’ble Supreme Court that the decisions of civil courts are binding on the criminal courts and the converse is not true. There is not much difference between the civil courts and family courts. By its nature, the Family Courts can be said to be just like Civil Courts. However, there is a vast difference in the proceedings conducted by both the courts.

For trying civil suits, a complete Code of Civil Procedure is there and before the Civil Courts, the lawyers are entitled to appear whereas under the provisions of Family Courts Act, the lawyers are not entitled, the parties have to plead their own cases before the Family Courts unless and until in a case, special permission is granted by the Family Courts to any party to plead his/her case through a lawyer.

8. Learned Counsel Mr. Thanvi is not able to make a definite statement as to whether the judgment and decree of restitution of conjugal rights passed by the Family Court, Udaipur on 2.12.1997 has become final or not or the same is challenged before the Higher Court or not? Be that as it may.

9. When the judgment and decree of restitution of conjugal rights passed by the Family Judge is tried to be relied upon by the learned Counsel for the petitioners accused, then in absence of the respondent No. 2 wife, I am required to carefully go through the same with the aid and assistance of learned P.P. Mr. G.K. Vyas.

10. Having carefully gone through the said judgment and decree passed by the Family Judge, I must state that if the said judgment and decree was challenged, then it would not have been sustained for a moment. Prima-facie, I am of the opinion that the reasons assigned by the learned Family Judge and view taken by him while passing the judgment and decree in favour of the petitioner No. 1 were wholly unsustainable. Prima-facie I am of the view that even before the Family Judge, the respondent No.2 wife had led sufficient evidence for coming to the conclusion that she was harassed because of dowry by all the petitioners accused.

11. The submission of learned Counsel Mr. Thanvi was that as a counter blast, she had filed complaint before the learned Magistrate when the notice was issued by the Family Court on a petition of restitution of conjugal rights is also not correct because, in the judgment of the Family Court itself, it is mentioned that the criminal complaint was filed earlier by the respondent No.2 wife before the competent criminal court on 8.1.1997 against the present petitioners for offence Under Sections 498-A, 354, 406, 323 and 504 I.P.C. It appears that as a counter blast, the petitioner No. 1 Mahaveer Kumar husband had filed the application for restitution of conjugal rights before the Judge of the Family Court who with undue haste decided the case immediately without making any attempt for reconciliation, which is must, in family disputes between husband and wife.

12. Ordinarily, no Hindu lady would make false accusation against her father in law regarding an attempt to outrage her modesty. Inspite of clear evidence of her, the learned Family Judge for the reasons best known to him for a different consideration held that she has failed to prove her case that her father-in-law tried to outrage for modesty.

13. In the instant case, after filing the complaint, the learned Magistrate has recorded her statement and in support of her case, other witnesses were also examined and by his impugned order dated 2.3.1998, he found that no case against the petitioners accused was made out for offence Under Sections 323, 406 and 504 I.P.C, therefore, he refused to take cognizance against them against the said offences. However, he was prima-facie satisfied that the case Under Section 498-A I.P.C. is made out against all the petitioners and in addition to that, offence Under Section 354 I.P.C. is made out against petitioner No.2, then this Court will not interfere with such orders of taking cognizance in its powers Under Section 482 Cr. P.C.

14. In M/s. Karamchand’s case (supra), facts were totally different. There the questions were:

Was the ban on export lifted by the State Government? If it did lift the ban was it competent to do so? and the export was legal or not? and the Railway authorities were competent to withhold the delivery of goods or not?

15. The Division Bench of Delhi High Court after elaborately hearing the arguments of the learned Counsel for the parties rejected the writ petition on the sole ground that in view of pendency of the criminal proceedings before some courts in the State of West Bengal, it is inappropriate for the High Court to pronounce on the questions arising for decision in the writ petitions. In the aforesaid context, the Hon’ble Supreme Court held that, “It is a well established principle of law that the decisions of civil courts are binding on the criminal courts. The converse is not true.” Thus, the judgment of the Hon’ble Supreme Court in M/s. Karamchand’s case (supra) which is tried to be relied upon by learned Counsel for petitioner has no relevance or application to the facts of the present case, which I have narrated herein above.

16. Considering the overall facts and circumstances of the case, I am of the considered opinion that it cannot be said that learned Magistrate has committed any error while passing the impugned order dated 2.3.1998 of taking cognizance against the petitioners accused for the offence under Seer 498-A I.P.C. and in addition to that, against the petitioner No.2 for offence Under Section 354 I.P.C.

17. Before parting, I must state that whatever observations made by this Court hereinabove, were made on the material placed before me at present. It goes without saying that the Trial Court deciding the case before it will decide the case on the basis of evidence led before it.

18. With these observations, this petition is dismissed.

19. Stay petition is also dismissed.

20. Stay granted earlier stands vacated forthwith.

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