Madhya Pradesh High Court
Dayanath Pandey vs Sandhya Pandey on 13 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 13 th OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 19020 of 2023
BETWEEN:-
1. DAYANATH PANDEY S/O SHRI OMPRAKASH
PANDEY, AGED ABOUT 45 YEARS, OCCUPATION:
ADVOCATE R/O 13/2 JHALANI COLONY RATLAM
(MADHYA PRADESH)
2. ANURAG PANDEY S/O SHRI OMPRAKASH
PANDEY, AGED ABOUT 38 YEARS, OCCUPATION:
PRIVATE JOB 13/2 JHALANI COLONY RATLAM
(MADHYA PRADESH)
.....APPLICANTS
(APPLICANT NO.1 IS PRESENT IN PERSON )
AND
1. SANDHYA PANDEY S/O SHRI SURESH SHUKLA,
AGED ABOUT 32 YEARS, OCCUPATION:
HOUSEWIFE R/O KUMHARI ROAD H.NO. 7 24TH
BATALION M.T. GATE KE SAMNE JAORA DISTT.
RATLAM (MADHYA PRADESH)
2. STATE OF M.P. THROUGH P.S. AUDYOGIG
KSHETRA JAORA JAORA, DIST. RATLAM
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI )
This application coming on for orders this day, th e court passed the
following:
ORDER
Applicants have filed present Misc. Criminal Case under Section 482 of Cr.P.C. challenging the order dated 11.04.2023 passed by Second Additional Session Judge, Jaora, District Ratlam whereby Criminal Revision No.6/2020 has 2 been allowed by setting aside the order dated 31.07.2019 passed in RCT No.1306/2016.
Facts of the case in short are as under:
1. The marriage of applicant No.1 and respondent No.1 was solemnized on 09.12.2005 under the Hindu rites and customs. The applicant No.1 filed petition under Section 12(1) (A) of Hindu Marriage Act, 1955 before the Family Court, Ratlam seeking declaration of marriage void on the ground of impotency of respondent No.1. The respondent No.1 filed a Complaint Case No.1303/2016 for prosecution of applicants and three others under Section 498-A, 323, 506-II, 294, 494 of IPC and Section 4 of Dowry Prohibition Act.
The said case was registered on 24.06.2016. Despite several opportunities, when the respondent No.1 did not appear to give evidence and vide order dated 31.07.2019, the application filed under Section 249 of Cr.P.C. by the accused persons was allowed and Complaint Case has been dismissed under Section 244(1) of Cr.P.C. and the accused persons were discharged for not giving evidence under Section 244(1) of Cr.P.C.
2. Being aggrieved by the aforesaid order, the respondent No.1 filed Criminal Revision No.6/2020 before the Second Additional Session Judge, Jaora, District Ratlam on the ground that the application filed under Section 245(2) of Cr.P.C. was not supplied and no notice or summons were issued to her. The aforesaid Criminal Revision was opposed by the present applicants and other accused person. The learned Second Additional Session Judge, Jaora, District Ratlam held that without giving any opportunity to the respondent No.1, accused persons have been discharged, therefore set aside the order dated 31.07.2019 and remanded back the matter to the Trial Court to pass fresh 3 order in accordance with law, hence, present Misc. Criminal Case under Section 482 of Cr.P.C.
I have heard applicant No.1 who is present in person and counsel for the respondent No.1.
3. The applicant No.1 submits that after registration of RCT No.1306/2016 on 24.06.2016, the respondent No.1 appeared only twice in the proceedings, despite giving last opportunity, she did not appear in the trial. The case was called on 31.07.2019 but neither the respondent No.1 nor her counsel appeared in the trial, therefore, the learned Magistrate has rightly passed the order dated 31.07.2019. The learend Second Additional Session Judge, Jaora, District Ratlam did not consider the same and allowed the Criminal Revision. It is further submitted that the Criminal Revision was filed after the period of limitation but without condoning the delay, Criminal Revision has been allowed. It is further submitted that the notices were sent in the wrong address, where accused persons were not residing and after returning of notices as unserved, the order of affixure was passed on the same house, therefore without service to the notices, the order has wrongly been passed. Hence, impugned order be set aside.
Heard.
4. The applicants have filed complete order sheet of Criminal Revision which reveals that no order has been passed on an application of condonation of delay, therefore without condoning the delay, the Criminal Revision has wrongly been entertained on merits. So far as services to the notices is concerned, it was served on the address where the applicants and other accused persons were not residing. The order sheet dated 08.10.2021 reveals that notices returned unserved with the report that accused persons are not 4 residing on the given address and despite that the order of affixure was passed on the same address. The notices sent through Superintendent of Police has also been returned unserved, therefore, the Session Court has wrongly proceeded ex-parte against the applicants and three accused persons.
5. In view of above, the impugned order dated 11.04.2023 is hereby set aside. Matter is remitted back to the Revisional Court to decide fresh after hearing the applicants and other three accused persons. The Criminal Revision No.6/2020 is restored to its original number. Parties are directed to appear before the Court concerned on 18.01.2024. This Misc. Criminal Case has been filed only two applicants, out of five, since they are related to each, thus it is duty of the applicant No.1, who is present in person to keep present other accused persons in person or through their counsel before the Revisional Court.
(VIVEK RUSIA) JUDGE Praveen Digitally signed by PRAVEEN Date: 2023.12.15 18:56:54 +05'30'