B.K.Rathi - (1.) -The opposite party No. 2, who is married with revisionist No. 2, filed a complaint against the revisionists for offences under Sections 498A, 323, 504 and 406, I.P.C. which is Case No. 1099 of 1998, pending before IInd Additional Chief Judicial Magistrate, Bareilly. After evidence under Section 200 and 202, Cr. P.C. all the revisionists were summoned to stand trial for above offences. The revisionists moved an application to recall the summoning order and to discharge them. That application has been rejected by the order dated 25.1.2000 by IInd Additional Chief Judicial Magistrate, Bareilly, before whom the complaint is pending. Aggrieved by it the present revision has been preferred.
(2.) I have heard Sri Manish Tiwary, learned counsel for the revisionists, Sri Sushil Shukla learned counsel for the opposite party No. 2 and the learned A.G.A. The first contention of the learned counsel for the revisionists is that an F.I.R. regarding this matter was lodged by the opposite party No. 2 at police station Anand Vihar, New Delhi, the copy of which has been filed as Annexure-2. It is contended that the said matter is also being investigated by the police at Delhi. That therefore, the Magistrate should have stayed the proceedings of this case under Section 210, Cr. P.C. As against this the learned counsel for the opposite party No. 2 has contended that only an information was given at police station Anand Vihar, New Delhi. That no F.I.R. was lodged. That no case has been registered there and the investigation is not being done. That therefore, there is no question of stay of proceedings under Section 210, Cr. P.C. I have considered the arguments. The alleged report made by the opposite party No. 2 is Annexure-2, which shows that only an entry in G.D. was made. It has also been mentioned in it that the complainant was informed that she may lodge a complaint with C.A.W. Cell East District Delhi. It also show that neither a case has been registered nor is being investigated. Therefore, the provisions of Section 210, Cr. P.C. are not attracted and there is no question of stay of the proceedings of the complaint case.
(3.) THE next argument of the learned counsel for the revisionist is that the complaint has been filed with false allegations and is mala fide. That the revisionist No. 2, had already filed a divorce suit against opposite party No. 2 on 2.11.1998. That thereafter the present complaint was filed on 9.11.1998. It is further contended that the opposite party No. 2, herself left the house and at that time she gave in writing that she is taking her entire clothes and ornament in three suitcases, which is Annexure-1. It is also contended that this memo has also been attested by the father of the opposite party No. 2. That therefore, the opposite party No. 2 has taken all the clothes and ornaments and articles of her streedhan in three suitcases. That therefore, there is no embezzlement by the revisionists. It is therefore, contended that the complaint is mala fide and it has been filed in retaliation of the divorce suit filed against the opposite party No. 2. I have carefully considered this point also. Admittedly Annexure-1, is not in the hand-writing of opposite party No. 2, who is said to be an advocate. It is alleged that this is in the hand-writing of revisionist No. 2 and only signature of opposite party No. 2, and her father have been obtained. The contents have also been denied. Therefore, it can be decided only after evidence as to whether the Annexure-1 was written by the opposite party No. 2, and whether she actually took the entire clothes and ornaments. At this stage it can not be held that the revisionists neither have committed any offence nor the complaint can be said to be mala fide for the reason that prior to the present complaint the divorce suit was filed against the opposite party No. 2.;