N.B.Asthana - (1.) RESPONDENT No. 4 is the legally wedded wife of petitioner No. 1. She filed a criminal case No. 2226/93 in the Court of Chief Judicial Magistrate, Aligarh under Section 406, Cr. P.C. Upon this complaint the petitioners were summoned vide order dated 30.8.1993. The petitioners filed a revision against the summoning order which was decided by IV Addl. Sessions Judge, Aligarh on 3.5.1994. He dismissed this petition holding that in view of the law laid down in Kailash Chaudhary and others v. State of U. P. and others, ACC 1993 page 664, the revision is not maintainable.
(2.) THE petitioners have now come to this Court with the prayer that the order of the respondents Nos.2 and 3 summoning the petitioners for the offence under Section 406, I.P.C, and the order dismissing their revision be quashed. Reliance has been placed upon a number of rulings in support of the argument that no case against the petitioners can be said to have been made out and that the order summoning them for the offence under Section 406, I.P.C, should be quashed. THE first ruling relied upon is State of Haryana and others v. Chaudhary Bhajan Lal and others, 1991 ACC 111, in which it was held that the power to quash criminal proceedings are extraordinary power and can be exercised if the allegations made in the F.I.R. do not constitute an offense. It depends upon the facts and circumstances of the case as to whether proceedings should be quashed or not. THE next ruling relied upon is Smt. Chand Dhawan v. Jawahar Lal and others, 1992 ACC 160, in which it was held that the High Court can exercise its inherent powers under Section 482, Cr. P.C, of quashing a criminal proceeding when the allegations made in the complaint do not constitute an offence or that the exercise of power is necessary cither to prevent the abuse of the process of the court or otherwise to secure the ends of justice. THE third ruling relied upon is Mrs. Dhanlakshmi v. R. Prasanna Kumar and others, 1990 ACC 39, in which it was held that High Court in the; exercise of its inherent power under Section 482, Cr. P.C,can quash proceedings if the complaint is found frivolous, vexatious or oppressive or disclose no offence. THE last ruling relied upon is Vinod Kumar Sethi and others v. State of Punjab and another, AIR 1982 PandH 372, in which it was held that "THE very concept of the matrimonial home connotes a jointness of possession and custody by the spouse even with regard to the moveable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any entrustment or passing of dominion over property day to day by the husband to the wife or vice versa Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break up. THE argument is that no offence under Section 406, I.P.C, can be said to be made out against the petitioners. The revisional court in rejecting the revision application relied upon Kailash Chaudhary v. State of U.P. and others. In this ruling after discussing the law on the point it was stated that "It is thus evident that Section 204 of the Code of Criminal Procedure not only provides a procedure for proceeding against a person accused of an offence but it also impliedly provides a remedy in that it confers a judicial discretion upon the Magistrate to recall the ex parte order issuing process on being satisfied that it ought not to have been issued." The petitioners have therefore an alternative remedy by moving the C.J.M. Aligarh to recall the ex parte order summonsing them and if he is satisfied that the complaint was frivolous or vexatious he cam withdraw that order.
(3.) IT is an established law that when an alternative remedy is available the High Court would not exercise its inherent jurisdiction under Article 226 of the Constitution. Jurisdiction under Article 226 o.T the Constitution is an extra ordinary jurisdiction and has to be exercised only when there is no alternative remedy available to the petitioner. In the instant case since the petitioners have an alternative remedy by applying before the C J.M. for recalling the order summoning them, I do not think it would be proper to exercise extra ordinary jurisdiction. In the petition it is alleged that petitioner No. 1 filed a suit for restitution of conjugal rights and as a counter blast to it the application under Section 125, Cr. P.C, and the present complaint was filed. The petitioners can very well bring all these facts to the notice of C.J.M., Aligarh and request him to recall the order summoning them.;