LAYA Vs. K V SUMESH

JUDGEMENT

(1.) The relief sought for by the de facto complainant in C.C.No.1883/2002 with respect to the offence under Section 498A, I.P.C. is an order directing the Additional Chief Judicial Magistrate, Ernakulam to stay the above proceedings in exercise of the power under Section 309 Cr.P.C. till the disposal of the civil disputes in the Family Court, Ernakulam in O.P. No. 114/2003 & O.P. No. 115/2003. The proceedings initiated by the petitioner pending before the Family Court are with respect to dissolution of marriage and realisation of money and gold ornaments respectively. The O.Ps. before the Family Court are being tried jointly and the matter is in the process of trial arid some of the witnesses have been examined. The petitioner moved the court of Additional Chief Judicial Magistrate to stay the criminal proceedings till the disposal of the above matters in the Family Court, but was bluntly turned down as per order in M.P. No. 1125/2005 on the ground that it appeared that the attempt of the petitioner is only to protract the matter. The court below has rested its finding on the premise that Section 309 Cr.P.C. is enacted for speedy trial and the proposition to stay the proceedings is not intended to be advanced under Section 309 Cr.P.C. The above reasoning according to the petitioner, is facile down right and deeply flawed.

(2.) Mr. Denizen Komath, counsel for the petitioner has relied on the decisions reported in Vasu Vydier v. State of Kerala 1974 KLT 24 and Madhavan Nambiar v. Bharathan 1995 (1) KLT 591. In the former decision, this Court has exhaustively considered the point in question and has also referred to the decisions relevant mainly the judgment of the top court in M.S. Sheriff v. The State of Madras and Ors. AIR 1954 SC 397.

(3.) On the other hand, Mrs. Saritha David Chungath, counsel for the respondent opposing the petition has brought to the notice of this Court the judgment in Ramachandra Iyer v. N.C. Menon 1961 KLT 419 and has also based her contentions on the decisions cited by the counsel for the petitioner, particularly the judgment in M.S. Sheriff's case (op.cit). It was also pointed out that in the above cases it is the accused who had moved the court seeking stay of the criminal proceedings and that the petitioner prosecuting the matter herein herself has moved the court which is on account of a misplaced perception of the legal position and evidently hellbent to harass the respondent/accused.