IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO Nos. 84 and 97 of 2010 Date of Decision: 16th September, 2010 __________________________________________________________ CrMMO No. 84 of 2010 Tarun Mahant & others ….Petitioners. Versus Surabhi Mahant & another ….Respondents Cr.MMO No. 97 of 2010 Gopal Krishan ….Petitioner Versus Surabhi Mahant ….Respondent ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ Cr.MMO No. 84 of 2010 For the Petitioners: Mr. Ajay Mohan Goel, Advocate For Respondent No.1: Mr. Haresh Sood, Advocate Cr.MMO No. 97 of 2010 For the Petitioner: Mr. Ajay Kumar, Advocate. For the Respondent: Mr. Haresh Sood, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). Both these petitions are being disposed of by a common order as they arise out of the same judgment. In Cr.MMO No. 97 of 2010, 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 Gopal Krishan Mahant vs. Surabhi Mahant, the petitioner seeks quashing of the proceedings, initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in case No. 217-I of 2010, titled Surabhi Mahant vs. Tarun Mahant pending in the Court of learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu. One of the allegations made in the petition is that the complaint instituted by respondent No.1 herein is nothing but a repetition of all the allegations which were made in Criminal Case No. 317-1 of 2003, instituted on 28.8.2003 in which proceedings under Section 498-A IPC were initiated by respondent No.1 herein and all accused were acquitted and immediately thereafter, a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was lodged for which summoning order dated 23.4.2010 was issued by the learned Chief Judicial Magistrate. To same effect are the allegations made in Cr.MMO No. 84 of 2010. 2. There are number of grounds urged for consideration before this Court and, in particular, it is urged that the complaint is barred by time as the facts, constituting the so called offence/cause of action in this case, were the same which were pleaded and urged before the Court in proceedings under Section 498-A IPC. Learned counsel submits that limitation goes to the very root of the case and when considered/adjudicated as fact, it is not open to the trial Court to take cognizance of the case or proceed to issue process. The second point urged is that once adjudication has been made on a particular set of facts and the petitioners have been acquitted of all offences purportedly flowing from those acts/omissions, it cannot be urged again for adjudication for the purpose of imputing criminality to the petitioners. In other words, proceedings having been terminated the petitioners cannot be tried again and the facts re-agitated. 3 3. In Lalu Prasad Yadav vs. State of Bihar ( 2007) 1 SCC 49, the Supreme Court holds: “16. But where the question of jurisdiction is raised and the trial court is required to adjudicate that issue, it cannot said that reasons are not to be recorded. In such a case reasons relate to question of jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasons dealing with a plea relating to jurisdiction have to be recorded. (at P. 59) 4. In these circumstances, the petitioners are directed to approach the trial Court by way of an application stating therein the grounds on which the challenge is made by them to the jurisdiction of the trial Court to take cognizance. In these circumstances, the trial Court shall deal with this question first and dispose it of in terms of the judgment of the Supreme Court, supra. 5. Petition stands disposed of. Record, if received, be sent back forthwith. (Dev Darshan Sud) Judge September 16th , 2010(ms)