Dr. Vijay Solanki Vs. the State of Madhya Pradesh Judgement Given By: Hon'ble Shri Justice Rajendra Menon - Court Judgment

1 dr. vijay solanki & ors. vs. state of m.p. & anr. HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR M.Cr.C. No.3493/2012 DR. VIJAY SOLANKI & TWO OTHERS VS. THE STATE OF M.P. & ANOTHER Present: Hon’ble Shri Justice Rajendra Menon. ----------------------------------------------------------------------------- Shri Anil Lala, learned counsel for the applicants. Shri Sameer Chille, learned Govt. Adv. for Non applicant No.1 State. Non-applicant No.2 appears in person. ----------------------------------------------------------------------------- Whether approved for reporting: Yes/ No ORDER

( 26 -2-2014 ) This petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the applicants seeking quashment of a criminal case registered against them vide Crime No.8242/2009 for offences under Section 498-A and Section 34 of IPC and pending in the Court of Judicial Magistrate First Class at Jabalpur. 2 dr. vijay solanki & ors. vs. state of m.p. & anr.

2. Applicant No.1 is the father of applicant No.2 and applicant No.3 is the mother of applicant No.2. Applicant No.2 and non applicant No.2 are Advocates registered with the Bar Council of Madhya Pradesh and are practising lawyers in Jabalpur.

3. They were married to each other in accordance to the Hindu religious rights and cumstoms on 28.4.2011 and it is the case of the applicants herein that the marital life of the parties were not smooth and making allegations against the non applicant No.2 to the effect that she wanted to live separately and was insisting that applicant No.2 stay away from his parents, was creating all sorts of problem in married life and finally it is said that she left the house of the applicants on 20th August, 2007 and started living separately. Repeated efforts made by the applicants having failed it is stated that the applicant No.2 filed an application under Section 9 of the Hindu Marriage Act for restitution of Conjugal rights vide Annexure A/1 on 4.10.2008. It is said that on receipt of the summons with regard to the aforesaid case, non applicant No.2 filed a police complaint under the Protection of Women Domestic Violence Act vide Annexure A/2 and a FIR with the Police Station vide Annexure A/3 on 16.6.2009 for offences under Section 498A and 34 of IPC and police after investigation into the FIR having filed the challan vide Annexure A/4 in the Court of competent jurisdiction on 24.6.2009, this application has been filed for quashing the criminal 3 dr. vijay solanki & ors. vs. state of m.p. & anr. proceedings registered under Section 498A/34 IPC and pending in the court of Judicial Magistrate First Class.

4. Two grounds were canvassed by learned counsel for the applicants Shri Anil Lala in support of his contentions. The first one was on the same set of facts and circumstances two proceedings, parallel in nature have been initiated. One for an offence under Section 498A and another under the Domestic Violence Act. It is said that this amounts to "double jeopardy" and is violative of the rights available to the applicants under Section 22 of the Constitution and therefore, one of the proceeding i.e. Criminal Case under Section 498-A, 34 IPC be quashed. The second ground canvassed is that criminal case has been lodged malafidely only to harass the applicants after the proceedings were initiated under Section 9 of the Hindu Marriage Act. It is said that a false case has been registered, no offence is made out and therefore, the criminal proceedings under Section 498-A read with Section 34 IPC be quashed. In support of his contention, Shri Anil Lala placed reliance on the following three judgments :- Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao and Others - AIR2011SC641to canvass his ground with regard to double jeopardy; Kailash Chandra Maheshwari & Others Vs. State of M.P. and others - 2006(1) MPHT349 Dashrath P. Bundela and others Vs. State of M.P. and another - (2012)1 MPHT196and two unreported judgments of this Court in M.Cr.C. No.10686/2009 - Neeraj Sahu & Others 4 dr. vijay solanki & ors. vs. state of m.p. & anr. Vs. State of M.P. & Anr. decided on 17.5.2012 and M.Cr.C. No.10026/2007 - Laxman Sahu & Anr. Vs. Smt. Abha Sahu & Anr. decided on 12.2.2008 5. On the contrary, non applicant No.2 appearing in person argued that the applicant No.2 was an Advocate and taking advantage of his dominant position as a law knowing person, misused the law against the non applicant No.2. She complains that ever since she was married, applicants were harassing her and it was because of the situation created by the applicants that it was impossible for her to stay with them. It is indicated by her that when she was carrying and was on the family way, her mother in law applicant No.3 kicked her on the stomach on 20th August, 2007 and because of the various activities she has to leave the marital house. It was said that they were harassing her and therefore, she had to initiate the proceedings. As far as filing of the complaint after receipt of proceeding under Section 9 of the Hindu Marriage Act is concerned, non applicant No.2 has filed a detailed affidavit and during the course of hearing she informs this Court that whenever she was harassed or illtreated, she complained to her parents and brother and applicant No.2 who is an Advocate, used to come and console her and assure that he will do the needful and always ensure that no written complaint be made. She points out that even settlement process were held by the police authorities in the police women and family help centre and it is said that it was 5 dr. vijay solanki & ors. vs. state of m.p. & anr. only when she received the summons under Section 9 of the Hindu Marriage Act, she came to know that applicant No.2 is deceiving her and therefore, she narrating all the facts filed the proceedings, denying the allegations of malafide by saying that the applicant No.2 a lawyer has misguided her and was harassing her demanding dowry and was preventing the non applicant No.2 from initiating the complaint at an appropriate point of time, she explains her conduct in filing the complaint after notice under Section 9 of the Hindu Marriage Act was issued.

6. I have heard learned counsel for the applicants and non applicant No.2 at length and perused the record. I have given my anxious consideration to the facts and circumstances of the case and after evaluating it in the back drops of the legal principles laid down by the Supreme Court in the matter of exercising jurisdiction in a proceeding under Section 482 of Cr.P.C. I proposed to deal with the matter based on the facts that have come on record.

7. As far as the question of double jeopardy is concerned, even though the Supreme Court in the case of Kolla Veera Raghav Rao (supra) relied upon by Shri Anil Lala, has laid down certain principles in the matter of double jeopardy but the same pertains to conviction/ civil action action in proceedings under Section 138 of Negotiable Instruments Act and for an offence under Section 420 of IPC. It was found that for actions under 6 dr. vijay solanki & ors. vs. state of m.p. & anr. both the counts, the ingredients and facts were similar and therefore, the principle of double jeopardy was applied. As far as the present case is concerned, the principles of law cannot be made applicable ipso facto in these proceedings. The import and the purpose for which the Protection of Women from Domestic Violence Act 2005 has been initiated and the intention for incorporating section 498-A IPC has to be taken note of. The ingredients necessary for both the case are different and if the application filed by the non applicant under the Domestic Violence Act i.e. Case No.8586/2011 Annexure A/2 is taken note of, it would be seen that apart from the ingredients necessary for constituting an offence under Section 498A, various other allegations are there in the matter which comes within the purview of the rules framed and offence contemplated under the Domestic Violence Act, 2005. They pertains to harassing the woman on the ground that she has not given birth to a male child, making unwarranted and uncalled for comments, preventing her from carrying out her vocation and profession, restricting her movement in the society, preventing her from meeting persons who are in authority, preventing her from looking after the needs of her child in the manner she feels better, preventing from maintaining her parents etc. It is therefore, clear that in the application and the complaint registered under the Domestic Violence Act the allegations are different and allegation for offence under Section 498A are different. 7 dr. vijay solanki & ors. vs. state of m.p. & anr. Accordingly, in the facts and circumstances of the case the principles of double jeopardy as canvassed by Shri Anil Lala cannot be made applicable. The facts, the allegations, the evidence and even the punishment for the acts are different and when both the offences are based on different sets of circumstances and the ingredients of the offences are also different, I am unable to accept the contention of Shri Anil Lala. That being so, the first ground canvassed being devoid of substance is rejected.

8. As far as the second ground is concerned, in a proceeding under Section 482 Cr.P.C., this Court can quash a criminal proceeding if it is satisfied that on the face of it and from the material available on record, no offence is made out for which the trial can be commenced or continue and if it is found that the complaint has been made malafidely with ulterior motive only to harass the aggrieved persons. If the aforesaid two circumstances are made out, this Court can very well exercise the jurisdiction under Section 482 Cr.P.C. That being so, I propose to look into the facts of this case to explore as to whether the aforesaid two grounds are available ?.

9. As far as the first question with regard to no offence being made out from the material available on record is concerned, it is seen that in this case the non applicant No.2 has made a detailed complaint. In the FIR lodged for offence under Section 498-A and challan filed by the police authorities after inquiry as is evident from 8 dr. vijay solanki & ors. vs. state of m.p. & anr. the material available on record, it is seen that specific allegations have been made with regard to harassing, assault, kicking on the stomach by one of the applicant etc. right from 20th August 2007 till filing of the complaint. The police has recorded the statement of various persons under Section 161 which include the statement of Gauri Bai Patwa, who is mother of the complainant and she testifies with regard to allegation of harassing right from 20th August 2007. Similarly the other two witnesses namely Shri Sharad Patwa, brother of the complainant and Shri Govind Prasad Patwa, father of the complainant made similar allegations. That apart, the non applicant No.2 in her statement under Section 161 has made allegations with regard to harassing right from 20.8.2007, the proceedings held for compromise before the Counseling Centre in the police station, the fact about the applicant No.2 being an Advocate, complaints made by her with the police authorities, her meeting with the Superintendent of Police etc. shows that she was prevented by her husband who convinced her that everything would be normalize and therefore, she should not make a complaint. She says that on 24.1.2006 her husband convinced her that everything would be normalized and she should not file complaint. She says that similar assurance were given from time to time and therefore, she did not file the complaint. Taking note of all the factors complaint has been registered and the matter is pending. That being so, if the statement of witnesses 9 dr. vijay solanki & ors. vs. state of m.p. & anr. available under Section 161 and if the nature of complaint and details given in the complaint are analyzed, it would be seen that this Court cannot at the outset say that the allegations raised are vague, unspecific and therefore, no case is made out. On the contrary, the allegations are serious in nature, they have been given with some particulars and dates and therefore, an enquiry into the matter is warranted to find out the truth. Applicants may be right in contending that the same are false but without proper enquiry, without recording of evidence, this Court cannot say that on the face of it the allegations are incorrect and therefore, liable to be quashed.

10. That apart, as far as the next contention that the complaint was filed after the proceeding under Section 9 was initiated is concerned, the non applicant No.2 not only in her complaint but also in a statement recorded under Section 161, apart from giving details of act committed against her, indicated reasons explaining her conduct in not making complaint at every point of time. She has specifically stated with a date i.e. 25.9.2006 to say that her husband applicant No.2 was an Advocate, he was assuring her that everything would be set right and she says that he deceived her and without taking her into confidence, initiated the proceeding under Section 9 and therefore, she was compelled to make the complaint. Her explanation submitted has to be looked into and after an enquiry into the matter only the question of her initiating the complaint malafidely as an after 10 dr. vijay solanki & ors. vs. state of m.p. & anr. thought due to initiation of the proceedings under Section 9 can be looked into or decided. An over all assessment of the facts and circumstances makes this Court to come to the conclusion that in the backdrop of the allegations leveled and the material collected, as has been filed before the Court along with the Challan, this Court cannot record a positive finding with regard to correctness of the allegations or otherwise based on the evidence of the parties. On the contrary, they are disputed questions of facts which warrants a proper enquiry in the trial by recording of evidence and cross examination of witnesses and therefore, it is not a case where on the face of it, accepting or rejecting one of the contention, this Court can record a definite conclusion. On the contrary, factual dispute warrants enquiry and once there is factual dispute between the parties which warrants enquiry, the jurisdiction available to this Court under Section 482 cannot be exercised. The totality of facts and circumstances do indicate that it is a case where there are serious disputed question of facts warranting enquiry and therefore, I am not inclined to exercise the extra ordinary jurisdiction under Section 482 Cr.P.C. in the facts and circumstances.

11. The judgment relied upon by Shri Anil Lala will also not apply in the facts and circumstances of the case. In the case of Kailash Chandra Maheshwari (supra) in the matter of framing of charges by the Court below and based on the evidence and material that came on record, 11 dr. vijay solanki & ors. vs. state of m.p. & anr. the learned Court found that the allegations of malafide are visible from the facts and reports of the police authorities and in para 6 of the said judgment after referring to the police report in the matter of investigation conducted, it is found that the allegations were not correct as the police report did not support the case of complainant. It was because of material being available in the police report which runs contrary to the complaint, where the proceedings were quashed in the said case. On the contrary, in the present case the police after investigation into the matter, lodged FIR, has filed the challan and has not submitted any report for closure of the case. Similarly in the case of Dashrath P. Bundela and others (supra) proceedings were quashed because based on unspecific allegations complaint was made. That is not the position here. Here is the case where specific details of allegations along with date, year, month and time have been indicated. That being so, the judgment relied upon by Shri Anil Lala cannot be applied in the facts and circumstances of the present case.

12. Accordingly, taking note of the facts and circumstances and the facts as narrated herein above, I am of the considered view that it is not a fit case where jurisdiction under Section 482 Cr.P.C. can be exercised for quashing the proceedings. It is a case where proper enquiry and trial should be conducted on the basis of evidence that came on record. However, before parting, it may be observed that the finding recorded, comments 12 dr. vijay solanki & ors. vs. state of m.p. & anr. and observations made are only prima facie in nature for the purpose of exploring the possibility or requirement of interfering under Section 482 Cr.P.C. The Trial Court shall be free to proceed in the matter without being influenced by any assertions or comments made in this order.

13. With the aforesaid, finding no case for interference, this application is dismissed. (Rajendra Menon) Judge Mrs.mish ra 13 dr. vijay solanki & ors. vs. state of m.p. & anr. HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR M.Cr.C. No.3493/2012 ORDER

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