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Judgment
Servesh Kumar Gupta, J.—By way of this Criminal Misc. application, the applicants have come up to this Court for quashing the chargesheet filed against them on 10.11.1999 and supplementary chargesheet dated 07.04.2000 for the offence under Sections 498-A, 506 and 323 Indian Penal Code.
The background facts are that Smt. Madhu Kuksal (Respondent No. 2) was married with Captain Anoop Kuksal way back in 02.02.1989. After few years of the wedding, the differences between the two cropped up. On account of these differences, Captain Anoop Kuksal filed a petition No. 498 of 2002 in the Family court for dissolving the marriage and the same was decreed on 16.07.2003 after trial. The marriage was dissolved between the couple. This Court has been apprised that decree of dissolution of marriage remained maintained upto level of the Apex Court.
Learned Counsel for the Petitioners/applicants have contented that as a counter blast of filing of the divorce petition, Smt. Madhu Kuksal lodged an FIR against the applicants on 09.09.1999 for the offence indicated above, whereupon the investigation was made and chargesheet was submitted, initially against only Captain Anoop Kuksal and his mother Smt. Chandrakanta Kuksal for the offence under Sections 498-A, 323 and 506 Indian Penal Code and No. offence was found to be made out against Sri Anant Kuksal and Smt. Jyoti Kuksal by the Investigating Officer. Smt. Madhu Kuksal moved an application u/s 173(8) Code of Criminal Procedure whereupon the re-investigation was directed to be made and after re-investigation, a supplementary chargesheet was filed by another Investigating Officer against Sri Anant Kuksal and Smt. Jyoti Kuksal who are respectively the real brother and sister- in-law of Captain Anoop Kuksal for the offence under Sections 498-A, 506 Indian Penal Code.
It has been contended on behalf of private Respondent that a cross FIR was also lodged by Captain Anoop Kuksal against his wife Madhu Kuksal either on the same day or after couple of days. The chargesheet was also submitted against Smt. Madhu Kuksal and trial is pending. Both the trial proceeded in the court of Magistrate. It appears, on going through the entire record of this petition that Captain Anoop Kuksal himself moved before this Court and was successful in getting the directions for expeditious trial against him in the court of Magistrate (as disclosed in para-14 of the affidavit filed with the petition). Annexure No. 8 of the affidavit is the true copy of the ordersheet of that criminal trial No. 1186 of 2007 which reveals that all the prosecution evidence has been over and after completion of the prosecution evidence on 15.07.2005, a number of dates were fixed for recording the statement u/s 313 Code of Criminal Procedure But all the applicants did not put their presence before the court enabling it to record the statements u/s 313 Code of Criminal Procedure Any how after many dates, the statements could be recorded and opportunity was extended for the applicants to adduce their evidence in defence, if any. For this purpose too, a number of dates have been fixed, but instead of producing any defence in the court below, this petition has been filed for quashing the entire proceedings and on 22.12.2006 the further proceedings of the criminal case No. 1186 of 2007 were stayed. The Court has been apprised that due to above stay order, further proceedings of nearly cross case were automatically stayed. The learned Counsel for the applicants has drawn the attention of this Court towards the observation of Division Bench of this Court in First Appeal No. 29/03 Smt. Madhu Kuksal v. Captain Anoop Kuksal and First Appeal No. 30/03 Captain Anoop Kuksal v. Smt. Madhu Kuksal (adjudicated together by the common judgment dated 07.07.2005). It will be worthwhile to reproduce the said observation as below:
In the present case, the husband has successfully proved that he was treated with cruelty by his wife, by her acts of hurling abuses at him and beating members of his family. The alleged acts of violence on the part of the wife, committed by her, get corroborated from the medical injury report (paper No. 85A-1). On the other hand, allegations, made by wife as to the harassment on account of dowry, are not established on record. Therefore, we are in agreement with the finding of the learned Judge, Family Court, that the Petitioner-husband has been successful in making out a case for divorce on the ground of cruelty.
Learned Counsel for the applicant has relied upon the precedent of Hon''ble Apex Court in the case of Shanti Kumar Panda Vs. Shakuntala Devi, wherein it was held that u/s 43 of the Evidence Act, 1872, the judgment of criminal court is not binding upon civil court while a decision by the civil court binds the criminal court. It is worth observing that the said precedent of Hon''ble Supreme Court is in quite different prospective. In that case Hon''ble Supreme Court was of the view that the proceedings under Sections 145 and 146 Code of Criminal Procedure pending in the court of Executive Magistrate are of summary nature and any order made by that Executive Magistrate in those proceedings cannot have a binding effect upon the competent civil court having jurisdiction over the matter. While the order of injunction if issued by the competent civil court will have binding effect upon Executive Magistrate vis-�-vis to those summary proceedings where the breach of peace is likely to be apprehended. Here in the instant case the subject matter is not the mere breach of the peace as to invoke the powers of the Executive Magistrate for initiation of summary proceedings under the Code of Criminal Procedure. Here the penal liability is to be determined for the offence of Sections 498, 323, 506 Indian Penal Code within the square of strict proof as imbibed in the criminal jurisprudence. So on the basis of the ratio, it would not be in the interest of the justice to quash the criminal proceedings pending against the applicants.
Here, the contention of learned Counsel for applicant is that the observation of the cruelty committed by Smt. Madhu Kuksal upon her husband Captain Anoop Kuksal and his mother is a kind of finding not only by the Judge, Family Court, but the same was confirmed vide judgment rendered by this Court also as indicated above. In these circumstances, these criminal proceedings before Judicial Magistrate, Dehradun cannot be allowed to sustain.
This Court, while having regard of the judgment of the Apex Court and observation regarding the factum of cruelty on the part of Smt. Madhu Kuksal, is of the view that the said factum of cruelty has been observed by the High Court as well as by the Family court in different perspectives. The facts were considered regarding the cruelty for determination of dissolution of marriage that may not attract the same intrinsic depth and inherent degree as may be a requisite to formulate the offence of Section 498-A Indian Penal Code, nay Section 323 and 506 Indian Penal Code. All the more, when the criminal proceedings almost similar in nature are pending in the court of Magistrate on the basis of FIR lodged by either of the parties against each other and more so, when the prosecution evidence has been completed and repeatedly dates have been fixed by court below extending the opportunity for adducing the defence by Captain Anoop Kuksal. Then it would not be in the interest of the justice to quash the proceedings as prayed in this petition.
In view of the above, this petition is devoid of merits. This Court is not inclined to quash the proceedings. The petition is dismissed. Stay granted by this Court on 22.12.2006 is vacated.