Hon'Ble Sharad Kumar Sharma vs Manmohan Dass Shishya Bharat Dass
2022 Latest Caselaw 3922 UK

                      Office Notes, reports,
`SL.                 orders or proceedings or
           Date                                                     COURT'S OR JUDGES'S ORDERS
 No                 directions and Registrar's
                      order with Signatures

       07.12.2022                                C-482 No. 599 of 2019
                                                 Hon'ble Sharad Kumar Sharma, J.

Mr. Nikhil Singhal, Advocate for the applicant.

Ms. Mamta Joshi, Brief Holder for the State.

The applicant to the present C-482 application, has put a challenge to the summoning order dated 08.01.2018, which had been passed by the court of Additional Chief Judicial Magistrate, Haridwar,

of 2018, for the commission of offence under Section 420 of I.P.C., which was got registered at P.S. Kotwali Haridwar, District Haridwar.

The respondent no.2 herein, had been a defendant in the suit preferred by the

of 2011 "Smt. Mukesh Verma Vs. Manmohan Dass Shishya Bharat Dass President of Hauman Mandir". The suit in question, which was instituted, as back as, on 11.10.2011, one of the issues, which was pending consideration, was Issue no.1, as framed by the court of learned 2nd Civil Judge (Senior Division), Haridwar, is that, as to whether the plaintiff, therein was the legally wedded wife of late Mr. Avadh Bihari Dass?

The said issue was decided by the said court, and after adducing of evidence, and considering the respective statements, recorded by the witnesses, the said court has recorded its findings on the ultimate decision, which has been arrived at in para- 38 of the judgment and decree dated 13.12.2021, which is extracted hereunder:

Þ38- mijksDr ifjp;kZ ds vk/kkj ij bl U;k;ky;

dk ;g fu'd'kZ gS fd okfnuh e`rd vo/k fcgkjhnkl dh iRuh gS vkSj oknxzLr laifRr dh Lokfeuh ,oa dkfct gS ftl dkj.k okn fcUnw la[;k 1 o 3 okfnuh ds i{k esa izfroknh ds fo#) fu.khZr fd;k tkrk gSAÞ As per the conclusion drawn in the regular civil proceedings, the civil court has already arrived at the conclusion, that the plaintiff was a legally wedded wife of late Mr. Avadh Bihar Dass, and she was the owner in possession of the disputed property in question, which was decided, at the stage of the considering the issue no.3.

The said judgment and decree dated 13.12.2021, has been subjected to a challenge in proceedings under Section 96 of Code of Civil Procedure, by filing of a regular appeal before this Court being First Appeal No. 141 of 2021 "Manmohan Dass Vs. Mukesh Kumar", in which the Coordinate Bench of this Court, while considering the stay application, had directed the parties to maintain the status quo, qua the title and possession of the property in question vide order dated 10.03.2022. The consequential effect of the interim order dated 10.03.2022, would be, that tentatively during the pendency of the appeal, the status of the plaintiff therein i.e. the applicant of the present C-482 application, who has been determined as to be the wife of late Mr. Avadh Bihari Dass, continues to be legally existing, in the eyes of law.

It has been argued by the learned counsel for the applicant, that the entire proceedings, which has been drawn by the defendant to the civil suit, who happens to be the complainant of F.I.R. No. 24 of 2016, dated 10.09.2016, is nothing but a malicious proceedings, where, in a nutshell its sum and substances, of the F.I.R. is taken in consideration, that is being pivoted around, the question as to whether the accused person therein i.e. the plaintiff of the suit, and the applicant herein to the C- 482 application, could not have claimed her right in relation to the properties referred to in F.I.R., on the basis of her enjoyment of relationship of being the wife of late Mr. Avadh Bihari Dass. Almost, the same set of allegations are levelled in the F.I.R., happens to be akin in relation to the subject, which was under consideration in the regular civil suit.

The learned counsel for the applicant has further referred to, that the factum of marriage with late Mr. Avadh Bihari Dass of the present applicant, stood fortified by the issuance of the Marriage Certificate, which has been issued by the Registrar Marriages, as it has been issued on 21.08.2008.

In that eventuality the very ground, taken in the F.I.R., about the non establishment of the relationship, with late Mr. Avadh Bihari Dass and the present applicant as to be his wife, couldn't have been a subject matter of criminal investigation, by registration of an F.I.R., and that too, when there was a prior instituted suit of the year, 2011, which was being contested by the respondent no.2- complainant to the C-482 application. It could not be ruled out, that the institution of the present criminal proceedings by registration of the F.I.R. No. 24 of 2016, was nothing, but an maliciously intended to somehow affect the civil proceedings, which was already pending consideration before the competent civil court, dealing with the question, as to whether the applicant is the wife of late Mr. Avadh Bihari Dass or not?

In that eventuality, when the factual aspects has already been determined by the civil court, the present proceedings, by way of drawing a criminal proceedings under Section 482 of Cr.P.C., would not be sustainable in the eyes of law.

Perusal of the order-sheets would reveal that at the time, when the Coordinate Bench of this Court has granted an interim order, on 24.04.2019, the respondent no.2-complainant, who was a defendant in the civil suit, was noticed by the Coordinate Bench, the steps were taken by the learned counsel for the applicant, and there is an office report dated 10.06.2019, that the respondent no.2, has been served with the notices. Since, respondent no.2, despite of having been personally served with the notices, has not put in appearance, nor has contested the proceedings of present C-482 application by filing any objections, on his behalf as yet.

In that eventuality, when the status of the present applicant stand settled as to be a legally wedded wife of late Mr. Avadh Bihari Dass, in a civil proceedings, based on the same factual dispute, there cannot be a parallel criminal proceedings drawn later, which could at all override the effect of a decree, which has been already rendered in favour of the plaintiff-applicant herein by the judgment and decree dated 13.12.2021.

For the aforesaid reasons, this Court is of the view, that carrying of the proceedings, by way of Criminal Case No. 376 of 2018, for trying the present applicant for the offence under Section 420 of I.P.C., would be nothing but an abuse of process, which entailing exercise of powers under Section 482 of Cr.P.C.

Hence, the C-482 application would stand allowed. As a consequence, the proceedings of Criminal Case No.376 of 2018 "State Vs. Smt. Mukesh Verma", which is presently pending consideration before the court of learned Chief Judicial Magistrate, Haridwar, District Haridwar, would hereby stand quashed.

However, it is made clear that the whatsoever observations, made by this Court, while quashing the criminal proceedings, would be exclusively independent for the purposes of the present C-482 application only, the pending regular appeal as against the grant of decree in favour of the plaintiff-applicant herein is to be decided independently, on its own merit.

Pending applications stand disposed of accordingly.

(Sharad Kumar Sharma, J.) 07.12.2022 Mamta