LALIT BARIK Vs. SITA BARIK

JUDGEMENT

(1.) ACCUSED No. 1 in I. C. C. No. 38 of 1999 of the Court of S. D. J. M, Patnagarh has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code') with the prayer to quash the said complaint and the criminal proceeding. Complainant is the opposite party in this case.

(2.) OPPOSITE party filed the complaint which has been registered as I. C C. No. 38 of 1999 in the Court of S.D.J.M., Patnagarh. In that complaint she alleges that her, husband i.e., the petitioner with his brother and sister (the co -accused) subjected her to ill -treatment and cruelty by sharing common intention and ultimately she was driven out from the matrimonialhouse on 2 -7 -1999. She filed the said complaint on 31 -8 -1999. In the meantime, on 9 -8 -1999 petitioner filed an application under Section 9 of the Hindu Marriage Act, 1955 with the prayer for restitution of conjugal rights and that has been registered as Title Suit No. 63 of 1999 in the Court of Civil Judge (Sr. Division), Patnagarh. Petitioner thus claims that the aforesaid criminal proceeding has been instituted by the opposite party vindictively with false allegation as a counterblast to the civil proceeding instituted by him and, therefore, the Criminal proceeding be quashed. Learned counsel for the petitioner reiterating the same point argued for quashing order of cognizance under Sections 498A/34, I. P. C. passed on 25 -11 -1999. He argued that bona fide in the petitioner's contention is readable from the conduct of the opposite party in lodging the complaint on 31 -8 -1999, though she alleged the date of desertion to be on 2 -7 -1999. Learned Counsel for the opposite party, on the other hand, argued that immediately after the desertion opposite party could not think of instituting a complaint or resorting to a criminal case with the hope of an amicable settlement and, therefore, the delay in filing the complaint cannot be attributed as an afterthought. He further argued that since the statement of the complainant and her witnesses examined in the inquiry under Section 202 of the Code makes out a prima facie case for the offence under Sections 498A/34, I. P. C. at the threshold of the proceeding, this Court should not enter into a roving inquiry to find out which version is correct. According to him, that is the matter which can be assessed at the time of trial.

(3.) AT the time of argument learned counsel for the petitioner also made a prayer that in the event the application under Section 482, Cr. P. C. shall not be allowed then the dateof appearance of the petitioners in the Court below may be extended for a period of four weeks inasmuch as because of pendency of the application under Section 482, of the Code and till communication of the result petitioner may not be in a position to appear. Learned counsel for the complainant/opposite party has no objection to that submission. On the application of the petitioner interim stay has been granted by this Court. Therefore, considering the aforesaid prayer, this Court directs that if the petitioner shall appear before the S.D.J.M., Patnagarh by 15th May, 2001, then that may be regarded as appearance in that Court in accordance with the summons issued and application for bail, if filed be considered accordingly.