ORDER
1. Petitioner has sought for quashing of the proceedings in P.C.R.No.20012/2010 dated 20th May 2010 and the F.I.R. in Crime No.272/2010 registered on 1.6.20i0.
2. Respondent No.2 filed a private complaint under Section 200 of Cr.P.C. imerclia alleging that, the accused has committed an offence punishable under Sections 312, 325, 354, 362, 376, 415, 419, 420 and 493 of IPC.
3. Learned Magistrate considering the nature of allegation in the complaint found it necessary to refer the matter to the jurisdictional Police for investigation under Section 156 sub-section (3) of Cr.P.C. On reference. Police has registered the case in Crime No.272/2010 for the offences punishable under Sections 312, 325, 354, 362, 376, 415, 419, 420 and 493 of IPC. The matter is still under investigation. At this stage, this petition has been filed. .
4. Sri.Gurumath, learned Counsel appearing for the petitioner submitted that, the complainant had filed a complaint in Crl.Misc.No. 1607/2009 before the II Addl.C.M.M. Bangalore, under the provisions of Protection of Women from Domestic Violence Act, 2005 find in the said complaint, a specific allegation as regard to this accused indulged in sexual acts with the complainant was alleged and on the basis of the said allegation, the case was conducted and by order dated 15.4.2010, the miscellaneous proceedings came to be dismissed. After dismissal of the criminal miscellaneous proceedings, the complainant has filed a private complaint on the same allegations. He submitted that, the second trial on the basis of same allegation is barred under Section 300 of Cr.P.C. Section 300 prohibits a person to be tried again, once he has been tried on the same allegation. He further submitted that, the petitioner was tried under the provisions of Section 12 of the Protection of Women from Domestic Violence Act (in shol referred to as 'Act') in C.Misc.No. 1607/2009. The allegation of domestic violence alleged is one and the same, which is now alleged in the complaint, hence, question of one more trial on the said allegation for different offences is impermissible.
5. He further submitted that, criminal miscellaneous proceedings have been initialed on the same set of facts and ended in order of dismissal of the said proceedings. The present complaint is initiated on the same allegation, it amounts to violation of the provisions of Section 300 of Cr.P.C.
6. To support his contention, he relied on the judgment of the Apex Court in the matter of S.NALINI &. OTHERS -vs-STATE BY DSP, CBI. SIT, CI1ENNAI reported in AIR 1999 SC 2640 and submitted that, the principle incorporated under Section 300 of Cr.P.C, is that, no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject matter of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trail on the same set of facts.
7. He also contended that, the averments in the complaint as it is, are taken into consideration, they do not constitute an offence punishable under Section 376 of IPC. He submitted that, the complainant is a consenting party and if she is a consenting party being a major, it does not constitute an offence punishable under Section 376 of IPC. He submitted that, there is no allegation of use of force or coercion to have sex with the complainant and same was not against her will. In view of these circumstances, the offence alleged against the petitioner punishable under Section 376 of IPC is without any basis and the proceedings are vitiated as violative of Section 300 of Cr.P.C.
8. In support of his contention, he further submitted that, living together for a long period would amount to consent and the sexual act between them will not constitute an offence. Learned Counsel relied on the judgment of the Apex Court, reported in AIR 1998 SC 2694 para-11 in the matter of KULDEEP K.MAHATQ -us- STATE OF BIHAR and submitted that, live-in relationship does not amount to an offence and it is supported by the decision of the Supreme Court in a judgment reported in 2010 AIR SCW 2770 in the matter of S.KHUSHEOC -vs- KANNIAMMAL AND ANOTHER.
9. He further submitted that, in a petition under Section 482 of Cr.P.C, this Court has inherent power to quash the proceedings, if it finds that the allegation in the complaint prime facie does not disclose an offence against the petitioner. Hence, continuing the proceedings would amount to abuse of the process of the court and submitted that, the entire proceedings require to be quashed.
10. Section 300 of Cr.P.C. prohibits the trial against a person by a competent court for an offence for which either he has been acquitted or convicted on the same set of facts being tried once again.
11. In this case, there is no dispute that, the earlier proceedings were initialed under the provisions of The Protection of Women From Domestic Violence Act" and not for any of the offences under the provisions of I.P.C. or any other law under which the accused could be punished for the offence alleged.
12. Scope and jurisdiction of the Magistrate exercising the power under the provisions of the Act is entirely different and distinct. If allegation of offence punishable under the provisions of I.P.C. is alleged in proceedings under the provisions of the Act. question is. as to whether the Magistrate exercising his power under the provisions of the Act could try the offence one alleged in the complaint, whether the provisions of the said Act provide for punishing the accused.
13. In this regard, it is useful to refer to the provisions of the Act Section 18 of the said Act confers power on the Magistrate to pass the protection order against the domestic violence. Section 19 provides for residence order. Section 20 provides for monetary benefits. Section 21 provides for custody of the child. Section 22 provides tor compensation Main relief could be granted under Sections 18 to 22 of the said Act. None of the provisions of the said Act provide for trying the offence punishable under the provisions of Indian Penal Code or any other law
14. Proceedings under the provisions of the Act are not meant to deal with the offences, even if such allegations are made. Such allegation may amount to domestic violence, but the said proceedings cannot be termed as trial of the offence.
15. To know as to what Is barred under the provisions of Section 300 of CrJp.C, it is useful to refer to the said provision Itself, which reads thus:
"300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221. or for which he might have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under subsection II) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act. constituted a different offence from that of which he was convicted, maybe afterwards tried for such last-mentioned offence, if the consequences had no happened or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may. Not with sinking such acquittal or conviction, be subsequently charged with and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section."
Reading of Section 300 of Cr.P.C. makes It clear that the person, who has been tried once by the competent court having jurisdiction, which means if the Magistrate under the provisions of the Act having jurisdiction to try an offence and having tried and the matter ended in conviction or acquittal, such person shall not be tried once again for same offence nor on the same set of facts for any other offence. Admittedly, the Magistrate has no power to try the offence punishable under Section 376 of IPC, much lefts under the provisions of the Act. Adjudication by competent court to deal with such offence or any offence arising out of said allegations, even if the allegations are made in those proceedings, for want of jurisdiction, the Magistrate cannot try the offence. In my view, Section 300 of Cr.P.C. is not applicable to the case on hand. Admittedly, the proceedings are not initiated for any punishment for the offence alleged in the complaint, but it was only for protection and adjudication of the rights of the complainant and the proceedings are entirely distinct and separate, nothing to do with the offence to be tried, which is alleged now.
16. Insofar as the allegation in the complaint, though the complainant has stated that, she started liking for the opinion on those circumstances petitioner and she lived with him, but there is a specific allegation in the complaint that she was not willing to have sex with the accused, accused by using his dominant position had induced the complainant, even though she was reluctant to have sex, it means that, sex with the complainant was not prima facie with consent, in such circumstances, at this stage, for the registration of complaint when the matter is under investigation, this Court is not required to give or express.
17. Admittedly, the matter is under investigation and the Police is yet to file charge sheet, whether this material is sufficient to convict or whether the charge sheet could be filed or not, it is a matter for the Police to consider and file proper report. At this stage, what is required is, whether the complaint discloses the prima facie allegation to constitute an offence alleged, just because the complainant says that she was living with the accused, automatically it does not become consent, allegation is that, she was reluctant and despite that, she was induced. This prima facie shows that the matter requires investigation. Hence, the decisions relied by the learned Counsel for the petitioner are of no assistance.
18. All that is required for this Court to notice is, whether the complaint discloses the allegations, which are required to be investigated and the matter being under investigation, I find no ground to interfere at this stage.
Accordingly, the petition fails and same Is dismissed.