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Judgment
H. Billappa, J.—This petition is filed by petitioners 1 to 3 u/s 482, Cr.P.C. seeking to set aside the order dated 15.6.2001 passed in C.C.271/01 passed by the Civil Judge (Junior Divn.) & JMFC, Hiriyur, registering the above casa against the petitioners for the offences punishable under Sections 143, 147, 149, 498-A and 506, I.P.C. read with Sections 3 and 4 of the Dowry Prohibition Act and to quash the entire proceedings therein.
The case of the petitioners In a nutshell is that the petitioner No. 1 who is none other than the husband of respondent No. 2 herein, filed a petition before the Family Court at Bangalore, in M.C. 1278/00 u/s 13(1)(la) of the Hindu Marriage Act seeking dissolution of his marriage with respondent No. 2 by way of divorce. On being notified of filing of such case, the 2nd respondent resisted the petition and filed counter statement. When the matter readied trial, the parties examined themselves as PW1 and RW1 respectively. The 1st petitioner-husband got marked 19 documents, while the 2nd respondent-wife did not produce any documentary evidence. During the course of cross-examination, she admitted that she was being looked after well by her husband and she was not subjected to any cruelty or ill-treatment. Considering the oral and documentary evidence available on record, the Family Court dismissed the petition on the ground that the 2nd respondent-wife has filed a complaint of dowry harassment against the petitioners.
Being aggrieved by the order of dismissal passed in M.C. 1278/00, the 1st petitioner herein filed M.F.A.1476/05 before this court. This court, vide judgment dated 27.9.2007, found that the trial court was in error in holding that the petitioner-husband had failed to prove acts of cruelty alleged against the 2nd respondent-wife, and that the latter has filed a false case against him for dowry harassment only to harass him. Therefore, the co-ordinate Bench, noting the fact that the appellant before it (husband) volunteered to deposit Rs. 3,500/- p.m. for his minor daughter towards maintenance apart from Rs. 5,00,000/- deposit towards the marriage expenses of the minor daughter born out of wedlock to the couple, reversed the finding of the trial court and allowed the appeal. After disposal of the said M.F.A. in favour of the 1st petitioner-husband, the petitioners have preferred this petition, seeking quashing of the proceedings initiated against them at the instance of respondent No. 2 hereto, registered in C.C.271/01 pending on the file of Civil Judge (Junior Divn.) & JMFC, Hirlyur, for the offences under Sections 143, 147, 149, 498-A and 506, I.P.C. and under Sections 3 and 4 of Dowry Prohibition Act.
The 1st respondent is represented by learned Govt. Pleader. The 2nd respondent appeared through her Counsel and resisted the petition, contending that the above petition has been filed with an intention to protract the proceedings before the trial court. It Is contended that being aggrieved by the order dated 27.9.2007 in M.F.A.147S/05, she has preferred SLP (Civil) No. 21190/07 wherein the Hon''ble Supreme Court has ordered stay of the order Impugned before it, but the petitioners have suppressed these (acts before this court, and therefore, seeks dismissal of this criminal petition.
I have heard Sri C.V. Nagesh, learned senior Counsel appearing for the petitioners, Sri B. Balakrishna, learned HCGP and Sri P.H. Virupakshaiah, learned Counsel representing the 2nd respondent, at length.
Sri C.V. Nagesh submitted that filing of the complaint by the 2nd respondent before the jurisdictional police and filing of charge sheet are subsequent to issuance of notice to the 2nd respondent In M.C. 1276/00 filed by the 1st petitioner against her and therefore, the same is bad in law. In fact, the 1st petitioner has suffered harassment and cruelty in the hands of his wife/respondent No. 2 by undergoing the ordeal of arrest on the basis of false complaint filed by her alleging dowry harassment. He submitted that the finding of this court in M.F.A. 1476/05 is binding on the trial court; the learned magistrate has not applied his mind while ordering process against the petitioners and on this ground also, the order impugned is unsustainable in law. Hence, he prays for allowing this petition.
While arguing the case, Sri C.V. Nagesh relied on the following decisions:
1) Vijaya Bank, M.G. Road, Bangalore and Another Vs. State, ;
2) G.A. Purushotham Vs. E.S.I. Corporation, ;
3) M. Saravana Porselvi v. A.R. Chandrasekar and Ors. 2008 AIR SCW 3777; and
4) All Cargo Movers (I) Pvt. Ltd. and Ors. v. Dhanesh Badarmal Jain and Anr. 2007(7) Supreme 334.
It is of relevance to extract the relevant portion in the above said decisions cited above. In the first cited judgment, this court has held as under:
Taking cognizance of an offence being a judicial Act after application of mind, magistrates should not use ''printed proforma'' in which even the words "cognizance is taken" are also printed or typed.
In the second judgment cited supra, this court held thus:
Section 190 - taking cognizance: principles-filling up columns In the order scoring off Inapplicable sub-sections, not taking of cognizance-no jurisdiction taken: illegally not to be regularized on ground not challenged-sanction order being proforma filled up or scored off, not valid; entire proceedings void ab initio.
In the judgment cited at No. (3) above, the Hon''ble Supreme Court held thus:
Cr.P.C., Sections 482, 468 - cruelty to wife-complainant and accused had entered into registered agreement of divorce as per custom-parties living separately since 10 years-complaint of cruelty filed thereafter-barred by limitation-harassment was also unbelievable-proceedings initiated are abuse of process of court-liable to be quashed-consideration of admitted document for exercising powers u/s 482 not Illegal.
In the last judgment cited supra, the Hon''ble Supreme Court held thus:
Cr.P.C. - Section 482-arlmlnel proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court-superior courts, white exercising inherent power should also strive to serve the ends of justice-for want of complaint satisfying ingredients of Sections 406 and 420, the order talking cognizance against the appellant cannot be sustained.
On the other hand, learned Govt. Pleader representing the State submitted that the trial court is right in initiating proceedings against the petitioners on the basis of the complaint of ill-treatment and dowry harassment alleged against them by 2nd respondent; merely because the husband-petitioner No. 1 has initiated divorce proceedings against the complainant-wife (respondent No. 2), it does not mean that cruel treatment was not meted to her; stray admissions by the 2nd respondent during the course of her cross-examination in M.C.1278/00 is not fatal to her case. Therefore, he prays for dismissal of this petition.
Sri Virupakshaiah, learned Counsel appearing for respondent No. 2 submitted that the marriage between the 1st petitioner and 2nd respondent is not denied; initiation of proceedings by 2nd respondent against the petitioners is an independent action alleging ill-treatment and the family court has rightly dismissed the petition filed by the 1st petitioner u/s 13(1)(la) of the Hindu Marriage Act seeking divorce. He submitted filing of this petition is only to drag on the proceedings before the trial court, and despite there being stay of the order passed by the Division Bench of this court In M.F.A.1476/05, by the Hon''ble Supreme Court in SLP No. 21190/07, the 1st petitioner has suppressed the same before this court. Hence, he seeks dismissal of this criminal petition.
Sri Virupakshaiah substantiated his arguments with the help of citations which are as under:
1) Mohammed Samdani Basha Vs. Syed Issac Basha, ;
Cr.P.C. � Section 482 quashing of proceedings-exercise of power under-proceedings initiated u/s 138 of Negotiable Instruments Act-HELD: The High Court u/s 482. Cr.P.C cannot minutely examine ail the documents that is produced by both sides and a detailed analysis is not required to be done while exercising the powers u/s 482, Cr.P.C. Once It is shown that the complaint filed is not vexatious and the allegations made in the complaint disclose commission of a cognizable offence the court would be slow in quashing the proceedings.
2) Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, ;
Evidence Act, 1872 � Section 3 - appreciation of evidence-civil and criminal proceedings-standard of proof required in-distinction-findings given in one proceeding-binding nature of, in the other - Held, civil cases are decided OP. the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given-findings recorded in one proceeding may not be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.
3) M.S. Sheriff Vs. The State of Madras and Others, ;
Cr.P.C � Section 439, 561A - stay of proceedings.
As between the civil and criminal proceedings, the criminal matters should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in civil and criminal courts is not a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court on the other or even relevant, except for Certain limited purposes, such as sentence or damages. The only relevant consideration is the likelihood of embarrassment. Another factor which weighs with the court is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten alt about the crime. The public interests demand that criminal justice should be swift and sure that the guilty should be punished while the events ere still fresh In the public mind and that the innocent should be absolved as early as is consistent with a fair and Impartial trial.
I have carefully gone through the contents of the complaint submitted by the 2nd respondent to the jurisdictional police. Based on it, a case came to be roistered In Crime No. 5/01 against the petitioners which is now pending in C.C.271/01 on the file of Civil Judge (junior Divn) & JMFC, Hiriyur. Initially they appeared before trial court but subsequently remained absent. Now, they are before this court seeking to quash the entire proceedings in C.C.271/01. On 15.6.2001, charge sheet was filed against the petitioners for the offences punishable under Sections 143, 147, 498-A, 506 read with Section 149, I.P.C. and Sections 3 and 4 of Dowry Prohibition Act.
The averments made by the complainant-respondent No. 2 in her complaint prima facie discloses that petitioners have committed the aforesaid offences. The petitioners cannot resort to the findings recorded by the Division Bench of this court In M.F.A.I476/05 and seek for their discharge or quashing of the entire proceedings Initiated against them. Of course the said M.F.A. has been filed by petitioner No. 1 herein challenging the order of dismissal of his petition M.C.1278/00 filed against respondent No. 2 herein u/s 13(1)(la) of the Hindu Marriage Act seeking for divorce. The said proceedings being civil in nature, any finding recorded therein may not be binding on the criminal court, which should dispose of the case on the basis of evidence adduced before it. The proceedings Initiated against the petitioners being criminal in nature, it is for the prosecution to prove its case. White taking cognizance of an offence, the criminal court should satisfy itself as to whether the complainant/prosecution has made out a prima facie triable case against the accused and It need not scrutinize each and every document produced before it, especially documents produced by the accused In support of their defence, nor it can call upon the prosecution to prove those documents before it takes cognizance of the offence. Therefore, In the Instant case, the court below after satisfying itself from the materials placed before it that there is a triable case against the petitioners, took cognizance of the same and issued summons to the petitioners which cannot be said to be illegal or incorrect and there is no abuse of process of court or law. Merely because respondent No. 2 filed the complaint against the petitioners after initiation of divorce case by petitioner No. 1 against her, is not a ground to doubt the case of the prosecution. Therefore, viewed from any angle, I do not find any good grounds to quash the proceedings initiated against the petitioners. Hence, this petition fails and Is liable to be dismissed.
Accordingly, this petition is dismissed as devoid of merits.