Madhya Pradesh High Court
Dr. Sarika Jain vs Dr. Abhishek Jain on 7 January, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 7 th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 38755 of 2024
DR. SARIKA JAIN
Versus
DR. ABHISHEK JAIN
Appearance:
Ms. Premlata Lokhande - Advocate for Petitioner.
ORDER
Present petition has been preferred under Section 528 of BNSS, 2023
(482 of Cr.P.C) being aggrieved by order dated 05.06.2024 passed by 6th
Additional Sessions Judge, Katni in UNCR/821/2024, whereby the appeal
filed under Section 341 of Code of Criminal Procedure by the petitioner was
dismissed and the order passed by Judicial Magistrate First Class on
27.04.2024 in UNCR/567/2023 has been affirmed, whereby the complaint
filed by the petitioner for registration of offence under Sections 182, 193,
199, 200, 420, 467, 468 and 471 of IPC was rejected.
2. Heard Smt. Premlata Lokhande, Advocate on the question of
admission.
3. Learned counsel for petitioner submits that the petitioner wife has
preferred a petition under the provisions of Domestic Violence Act before
the Judicial Magistrate First Class, Katni, which was registered as
MJCR/927/2021 (Dr. Sarika Jain Vs. Dr. Abhishek Jain), wherein the
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direction was issued to both the parties to file their income, assets and
liabilities affidavit. She submits that the respondent submitted his affidavit in
compliance of order passed by the Magistrate, wherein the respondent has
concealed material facts in the affidavit. The petitioner submitted a
complaint under Section 340 of Code of Criminal Procedure before the
Magistrate on 24.04.2023 with a prayer to register the case against the
respondent for the offences punishable under Sections 182, 193, 199, 200,
420, 467, 468 and 471 of IPC.
4. Learned counsel for petitioner has pointed out several facts those are
incorrect as per the petitioner as well as the facts those were concealed by
the respondent in the affidavit. Learned counsel for petitioner submits that as
the respondent has submitted the incorrect affidavit, he has committed
offence and the conclusion ought to have been drawn by the trial Court that
the offence has been prima facie committed by the respondent therefore, the
cognizance ought to have been taken under Sections 182, 193, 199, 200, 420,
467, 468 and 471 of IPC.
5. She further submits that the complaint was filed by the petitioner
under Sections 195 read with Section 340 of Cr.P.C, wherein the statement
of the petitioner was recorded by the Magistrate and after considering the
contents of the application, affidavit, statement of the complainant, document
and written argument, Magistrate has declined to take cognizance against the
respondent by order dated 27.04.2024 and dismissed the complaint. The
order was assailed before 6th Additional Sessions Judge, Katni in an appeal
filed under Section 341 of Cr.P.C, but the same was also dismissed by the
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Appellate Court at the stage of admission.
6. Learned counsel for petitioner further submits that the commission
of offence by the respondent is apparent as he has not disclosed the correct
facts in the affidavit filed before the Magistrate as well as suppressed the
various material facts including the properties from the Court in the affidavit.
She further submits that copies in respect of several properties were filed by
the petitioner along with the complaint to prima facie establish that the
affidavit submitted by the petitioner was incorrect, but the Magistrate has not
considered those documents and dismissed the complaint.
7. She relied on the judgment delivered by the Supreme Court in the
matter of Rajnesh Vs. Neha in Criminal Appeal No.730 of 2020 , wherein the
direction has been issued to submit a detailed affidavit by the parties in the
format of Enclosure-I of the judgment. She further relied upon the judgment
of Larger Bench of Apex Court delivered in the matter of M.S. Sheriff Vs.
State of Madras & Ors. reported in AIR 1954 SC 397 , wherein the Supreme
Court has held that the simultaneous proceedings of civil and criminal
regarding the same material is likely to embrass the accused and so
ordinarily and in the absence of special circumstances, the criminal
proceedings should be given precedence and the civil proceedings should be
stayed pending the termination of criminal proceedings.
8. With the aid of aforesaid judgments, learned counsel for petitioner
submits that the complaint submitted by the petitioner under Section 195
read with Section 340 of Cr.P.C ought to have been registered by the
Magistrate by taking action in accordance with law.
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9. In a case instituted under the Domestic Violence Act, respondent
submitted his affidavit in compliance of direction issued by Supreme Court
in the matter of Rajnesh Vs. Neha (supra) and as per the petitioner in the
affidavit, correct information were not supplied or concealed. The Magistrate
has not recorded any finding in respect of affidavit submitted by the
respondents. Until and unless the Magistrate records the finding that the
respondent has submitted false affidavit deliberately before the Court, no
action is permissible under Section 195 read with Section 340 of Cr.P.C. In
the present matter, the original complaint filed under the provision of
Domestic Violence Act is still pending. The Magistrate has not recorded any
finding in the matter against the respondent therefore, the prayer of the
petitioner to take action against the respondent and register the offence
under Sections 182, 193, 199, 200, 420, 467, 468 and 471 of IPC could not
have been allowed. Before taking any action under Section 340 of Cr.P.C,
the Court is under obligation to record a prima facie findings of perjury
which is absent in the present case and only on the basis of allegations of the
petitioner, cognizance could not be taken against the respondent.
10. The judgments relied by the petitioner Rajnesh Vs. Neha (supra)
and M.S Sheriff (supra) are not helpful to the petitioner because in Rajnesh
Vs. Neha(supra), the Apex Court has held that the parties should file the
affidavit of income and assets, but the said judgment is silent on the point of
taking action against any party under Section 340 of Cr.P.C. Similarly, the
judgment delivered by the Apex Court in the matter of M.S. Sheriff (supra)
the issue was different and the Court has held that the criminal proceedings
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should be given precedence over the civil proceedings.
11. In view of above, the orders passed by Judicial Magistrate First
Class, Katni and 6th Additional Sessions Judge, Katni appears to be just and
proper and consequently, the admission is declined.
12. Petition is dismissed.
(VINAY SARAF)
JUDGE
