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Judgment
Honourable Mr. Justice Rajesh H. Shukla
The present petition has been filed by the petitioners under Art. 226 & 227 of the Constitution of India as well as under sec. 482 of the Code of Criminal Procedure for the following prayers:
a. Your Lordships may be pleased to quash and set aside Criminal Case No. 22656/2010 pending in the Court of learned Second Additional Civil Judge, Surat, qua present applicants;
b. Pending hearing and final disposal of this application, Hon''ble Court may be pleased to stay the further proceedings of Criminal Case No. 22656/2010 pending in the Court of learned Second Additional Civil Judge, Surat, qua present applicants;
c. To pass such other and further order which may deem fit in the interest of justice
As the Court was not inclined, learned advocate Mr. Vyas had taken time to seek instructions for withdrawal. However, today he has stated that the court could pass appropriate orders. He has referred to the papers and submitted that it is an abuse of the process of court. He has pointedly referred to, referring to the proceedings under the Hindu Marriage Act, and also submitted that the allegations of the offences prior to May-June, 2010 are unreliable. He has also stated that the matrimonial home was left in the year 2010 and the complaint is filed in June, 2010 after a delay which is not explained and therefore the criminal case has been filed as and by way of abuse of the process of court.
The submissions which have been made referring to the delay in filing the complaint as well as about the genuineness of the allegations are matters which can be considered on the basis of evidence. There is no evidence. There is delay, but at the same time, if one looks at the facts, it is evident that vide order dated 11.10.2010, the learned Magistrate has framed the charges, whereas the present petition is filed on 16.7.2012 for which also there is no explanation for filing the proceedings at such a belated stage.
However, since the charge-sheet has been framed, it would not be desirable for this court to enter into the merits and consider either way at this stage in exercise of the discretionary powers under Art. 226/ 227 of the Constitution of India or the inherent jurisdiction under sec. 482 of CrPC, when the Court of Magistrate can examine all these aspects on appreciation of evidence after affording an opportunity to both the sides.
The Hon''ble Apex Court has laid down that once the charge sheet is filed, normally, the High Court should not exercise discretion under sec. 482 of CrPC. The Hon''ble Apex Court in its judgment in the case of Ajay Kumar Das v. State of Jharkhand and anr., reported in 2011(6) Supreme 239, has made the observation that for quashing the proceedings all the defence can be raised in accordance with law at the time of framing of the charge and the court can consider the material on record. Therefore ,considering the aforesaid facts and circumstances, the present petition cannot be entertained as this Court cannot come to any conclusion when the charge sheet has been filed in the aforesaid Criminal Case No. 22656/2010 pending before the learned Second Additional Civil Judge, Surat. The present petition therefore deserves to be dismissed and accordingly stands disposed.