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Madhya Pradesh High Court · body

2009 DIGILAW 573 (MP)

Shyamlal v. Kanta Bai

2009-04-29

N.K.MODY

body2009
ORDER 1. This order shall also govern disposal of M.Cr.C.No.451412008 as in both these petitions parties are one and the same. 2. In M.Cr.C.No.387612008 the prayer is for quashment of order dated 4.4.2008 passed by 17th Addl. Sessions Judge (Fast Track), Indore in Cri Rev. No.1 08712007, whereby the order dated 17.10.2007 passed by JMFC, Indore in Cri. Case No. 6112007 was maintained. 3. In M.Cr.C.No.451412008 the order under challenge is dated 20.3.2007 passed by JMFC, Indore in Cri. Case No.1 0911/2007, whereby the petitioner has been prosecuted for an offence punishable under Section 498-A, IPC. 4. Short facts of the case are that the petitioner No. 1 Shyarnlal is the husband of respondent Kantabai, while petitioner No.2 in M.Cr.C.No.3876/ 2008 is the father of petitioner No.1. In M.Cr.C.No.451412008 petitioner No.1 is the husband of respondent, while petitioners No.2 and 3 are the parents of petitioner No. 1 and petitioner No.4 is the brother of petitioner No. 1. In M.Cr.C.No.3876/2008 the petitioners were prosecuted by the respondent by filing the private complaint for an offence punishable under Section 23 of the Protection of Women from Domestic Violence Act, 2005. 5. Learned counsel for the petitioners submits that petitioners No.1was married to respondent in the year 1987 and the petitioner No. 1 is residing separately since then. It is submitted that the petitioners were prosecuted by the respondent earlier also for an offence punishable under Section 498-A IPC and the case was registered at Cri.CaseNo.329/99 and was decided by J .M.P.C. Indore vide judgment dated 24.9.2002. Copy of the judgment was placed by the petitioner before the learned Revisional Court. It is submitted that from perusal of the judgment, it is evident that petitioners are living separately prior to 26.10.2006 when the Protection of Women from Domestic Violence Act, 2005 came in force. It is submitted that inspite of that learned revisional Court without taking cognizance of the judgment passed upon the complaint of respondent has dismissed the revision petition, which is illegal and deserves to be set-aside. It is submitted that the Protection of Women from Domestic Violence Act came in force w.e.f. 26.10.2006 and no retrospective effect can be given to the Act meaning thereby the petitioners cannot be prosecuted for any of the alleged offence, which has taken place prior to 26.10.2006. It is submitted that the Protection of Women from Domestic Violence Act came in force w.e.f. 26.10.2006 and no retrospective effect can be given to the Act meaning thereby the petitioners cannot be prosecuted for any of the alleged offence, which has taken place prior to 26.10.2006. It is submitted that petition filed by the petitioners be allowed and the impugned order passed by the learned Sessions Court, whereby the revision petition filed by the petitioners dismissed, be set-aside. 6. Shri S.K. Meena, learned counsel for the respondent submits that after taking into onsideration all the facts and circumstances of the case learned Revisional Court has dismissed the revision petition filed by the petitioner, therefore, petition filed by the petitioner is not maintainable as it is a second revision, which is barred under Section 397, Cr.P.C., therefore, it is submitted that the petition be dismissed. 7. So far as the another petition filed by the petitioners, which is numbered as M.Cr.C.No.4514/2008 is concerned, in that case learned counsel for the petitioners submits that on earlier occasion also upon the complaint of the respondent, State has prosecuted the petitioners in Cri. Case No. 329/99, which was decided on 24.9.2002 by JMFC, Indore, whereby the petitioners were acquitted. It is submitted that since the petitioners are living separately since long and the learned JMFC has also held that the respondent is not the wedded wife of the petitioner No.1, therefore, the learned trial Court committed error in taking cognizance of the offence against the petitioners. It is submitted that petition filed by the petitioners be allowed and the impugned order, whereby the cognizance was taken by the learned trial Court be set-aside. 8. Shri S.K. Meena, learned counsel for the respondent submits that no illegality has been committed by the learned trial Court in taking congnizance. Apart from this learned counsel submits that the impugned order is revisable. It is submitted that since the alternative remedy is available to the petitioners, the petition filed by the petitioners be dismissed. 9. 8. Shri S.K. Meena, learned counsel for the respondent submits that no illegality has been committed by the learned trial Court in taking congnizance. Apart from this learned counsel submits that the impugned order is revisable. It is submitted that since the alternative remedy is available to the petitioners, the petition filed by the petitioners be dismissed. 9. So far as M.Cr.C.No.4514/2008 is concerned, against the order dated 20.3.2007, whereby the cognizance was taken by the learned trial Court for the offence under Section 498-A, IPC After taking into consideration the facts and circumstances of the case the petition filed by the petitioners is allowed and the impugned order, whereby the cognizance was taken, is set-aside and the petition is disposed with a direction that petitioners shall move an appropriate application before the learned Court below, wherein the petitioner shall raise all the grounds on the basis of which the proceedings initiated by the respondent deserves to be quashed. Petitioners shall also file copy of the judgment dated 24.9.2002 passed by JMFC, Indore. If such a petition is filed then after giving an opportunity of hearing to the respondent, the same shall be decided by the learned trial Court in accordance with law. 10. So far as M.Cr.C.No.3876/2008 is concerned, since the respondent is living separately prior to coming into force of the Domestic Violence Act, which came in force with effect from 26.10.2006 and the same is not having the retrospective effect, is allowed and the impugned order dated 4.4.2008 passed in Cri. Revision No.1087/2007 and the order dated 17.10.2007 passed by JMFC in Cri. Case No. 61/2007 and complaint filed by respondents stands quashed. 11. With the aforesaid direction, petition shall stand disposed of.