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2009 DIGILAW 716 (GAU)

Sanjay Prasad v. State of Assam

2009-09-24

I.A.ANSARI

body2009
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 397 and 401 Cr.PC, the petitioners have challenged the proceedings of C.R., Case No. 99/09, pending in the court of the learned Chief Judicial Magistrate Tinsukia, on the ground that the complainant, who is the wife of petitioner No. 1 herein, has already instituted a maintenance proceeding, under Section 125 Cr.PC, which has given rise to Maintenance Case No. 16/2009, in the court of the Chief Judicial Magistrate, Tinsukia, wherein she has alleged, inter alia, that her husband and his relatives have misappropriated her stridhan. 2. Heard Mr. R. Dhar, learned Counsel, for the accused-petitioner, Also heard Mr. B.S. Sinha, learned Addl. Public Prosecutor, Assam. 3. It has been submitted, on behalf of the petitioners, that the opposite-party No. 2 herein instituted a proceeding, under Section 125 Cr.PC, against petitioner No. 1 herein, seeking maintenance, which is still pending in the court of the learned Chief Judicial Magistrate, Tinsukia, and, hence, the Complaint Case, filed by the opposite-party herein, against the petitioner, with the allegation of misappropriation of her stridhan, which gave rise to Complaint Case No. 99/2009, is not maintainable under the law inasmuch as the complainant, as first party, in the maintenance proceeding, too, has alleged that her stridhan have been misappropriated by her husband and his relatives and, thus, the issues, which have been raised in the Complaint Case No. 99/09 aforementioned, have already been raised in the maintenance proceeding. It is contended, on behalf of the petitioners, that when a court of ordinary criminal jurisdiction, in a maintenance proceeding under 125 Cr.PC, is already in seisin of the question as to whether the petitioners have misappropriated the complainant-opposite party's stridhan or not, the same question cannot be parallely raised and determined in a case arising out of a complaint made by the opposite party herein. In short, what is contended, on behalf of the petitioner, is that the two parallel proceedings - one, arising out of an application made under 125 Cr.PC, and another, arising out of a complaint - cannot be continued simultaneously and when a court of competent jurisdiction, in a maintenance proceeding under Section 125 Cr.PC, is already enquiring into the matter as to whether the complainant's stridhan has been misappropriated or not by the present petitioners, the same question cannot be raised and decided in a complaint case. 4. 4. While considering the question raised by the petitioners, suffice it to answer that a proceeding, instituted under Section 125 Cr.PC, has nothing to do with misappropriation of stridhan and even if such a question co-literally arises in a maintenance proceeding, the mere fact, that in a maintenance proceeding, such a question is being determine, cannot divest a court of ordinary criminal jurisdiction from determining the question as to whether such a person's stridhan has been misappropriated or not. 5. In view of the fact that the proceeding under Section 125 Cr.PC is not a criminal proceeding and the standard of appreciation of evidence, in a proceeding under Section 125 Cr.PC, is materially different from that of criminal proceeding, the fact that in the maintenance proceeding too, allegations have been made by the wife of petitioner No. 1 herein that misappropriation has been done by her husband and his relatives with regard to her stridhan, the pendency of such a maintenance proceeding cannot, in law, debar prosecution of the present petitioners for alleged misappropriation of the said stridhan. If the criminal court finds the present petitioners to have misappropriated the complainant - opposite party's stridhan, there would be no impediment in law in punishing the petitioners appropriately even if the court finds otherwise in the maintenance proceeding. 6. In view of what have been discussed above, the proceedings of the said Complaint case cannot be interfered with. 7. Because of that have been observed, this criminal revision is not admitted and the same shall accordingly stand dismissed. Petition dismissed.