SHETHNA, J. - (1.) BY way of this petition,the petitioners accused have prayed for quashing the impugned order dated 2. 3. 98 passed by the learned Additional Chief Judicial Magistrate No. 1, Udaipur whereby the learned Magistrate took cognizance against the accused petitioners no. 1, 3, 4 and 5 for offence under Section 498-A IPC and against the accused petitioner no. 2 under Section 498-A and 354 IPC.
(2.) ON 8. 1. 97, the respondent No. 2 Smt. Shashikala w/o Mahaveer Kumar (present petitioner No. 1) filed a complaint before the learned Additional Chief Judicial Magistrate No. 1, Udaipur. She has stated in it that the accused petitioner no. 1 Mahaveer Kumar is her husband, the accused petitioner no. 2 Sagar Mal is her father in law, the accused petitioner no. 3 Pawan Kumar is her brother-in-law, accused petitioner No. 4 Smt. Tulsi Devi is her mother-in-law and accused petitioner No. 5 is her sister-in-law. She has stated that all the five accused were harassing her within short time of her marriage for dowry and the accused Sagarmal, who is her father-in-law, tried to outrage her modesty, thereby they have committed offence punishable under Section 498-A I. P. C. and in addition to that, the petitioner no. 2 has committed offence punishable under Section 354 IPC. She had also complained against all the accused for offence punishable under Sections 323, 406 and 504 IPC but the learned Magistrate after considering the statement of the complainant Smt. Shashikala and her witnesses found that no case was made out against any of the accused for offence under Sections 323, 406 and 504 IPC and, therefore, refused to take cognizance by his impugned order dated 2. 3. 98. However, he was satisfied that a prima facie case was made out against the present petitioners for the offence under Section 498-A IPC and in addition to it, prima facie offence is made out under Section 354 IPC against petitioner no. 2. This has been challenged by way of this misc. petition before this Court by the present petitioners-accused. Earlier notice was ordered to be issued on this petition on 13. 8. 98 and the learned P. P. Mr. Upadhyay was directed to accept notice for respondent No. 1. Thereafter, the petition was admitted on 7. 1. 99 as though served, no one appeared for the respondent no. 2 and the interim order granted earlier was ordered to continue till the final disposal of this petition. This petition was placed before me yesterday and it was argued by the learned counsel for the petitioner that there is already a decree of restitution of conjugal rights passed in favour of petitioner no. 1 husband, therefore, once there is a clear finding recorded by the civil court in favour of the petitioner, then criminal court cannot take cognizance in the matter. For producing the copy of the said judgment passed by the Family Court, Udaipur, this petition was placed today. Today, learned counsel for the petitioner has produced the copy of the judgment and decree dated 2. 12. 97 passed by the Family Court, Udaipur. He submitted that the learned Judge of Family Court, Udaipur in a petition filed by husband for restitution of conjugal rights against his wife has clearly found that the respondent wife failed to prove her case regarding harassment for dowry and came to the conclusion that without any valid reasons, she was not staying with her husband, therefore, he ordered the respondent wife to fulfil her marriage obligation and stay with her husband. He, therefore, submits that the learned Magistrate was wrong in taking cognizance against the petitioner no. 1 as well as other accused petitioners who are his close relatives. He, therefore, prayed that this Court may quash the proceedings pending before the Court of Additional Chief Judicial Magistrate No. 1, Udaipur in criminal case no. 52/98 filed by the respondent no. 2 for the aforesaid offences. In support of his submission, Mr. Thanvi has placed reliance upon the judgment of Hon'ble Supreme Court in case of M/s. Karamchand Ganga Pershad and another vs. Union of India & Ors. (1) wherein the Hon'ble Supreme Court observed in para 4 that, ". . . It is a well established principle of law that the decisions of civil courts are binding on criminal courts. The converse is not true. . . . ".
(3.) THERE cannot be any quarrel with the principle laid down by the Hon'ble Supreme Court that the decisions of civil courts are binding on the criminal courts and the converse is not true. THERE is not much difference between the civil courts and family courts. By its nature, the Family Courts can be said to be just like Civil Courts. However, there is a vast difference in the proceedings conducted by both the courts. For trying civil suits, a complete Code of Civil Procedure is there and before the Civil Courts, the lawyers are entitled to appear whereas under the provisions of Family Courts Act, the lawyers are not entitled, the parties have to plead their own cases before the Family Courts unless and until in a case, special permission is granted by the Family Courts to any party to plead his/her case through a lawyer. Learned counsel Mr. Thanvi is not able to make a definite statement as to whether the judgment and decree of restitution of conjugal rights passed by the Family Court, Udaipur on 2. 12. 97 has become final or not or the same is challenged before the Higher court or not? Be that as it may. When the judgment and decree of restitution of conjugal rights passed by the Family Judge is tried to be relied upon by the learned counsel for the petitioners accused, then in absence of the respondent No. 2 wife, I am required to carefully go through the same with the aid and assistance of learned P. P. Mr. G. K. Vyas. ;