THE HIGH COURT OF MADHYA PRADESH
Gwalior, dtd. 18/01/2018
Shri Yash Sharma, counsel for the applicant.
Shri Pratip Visoria, counsel for the respondent.
This application under Section 482 of CrPC has been filed for quashing further proceedings in Case No.06/2016 (Domestic Violence) pending before the Court of JMFC, Gwalior under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short ”DV Act”].
The undisputed fact is that the applicant is the sister-in-law of the respondent.
The necessary facts for the disposal of the present application in short are that the respondent has filed an application under Section 12 of DV Act for reliefs under Sections 18, 19, 20, 21and 22 of DV Act against the applicant and other persons, which is pending before the Court of JMFC, Gwalior. The Magistrate has issued summons on the said complaint to the respondents mentioned therein, including the applicant.
In the complaint, it is alleged by the respondent that she was married to Saket Dixit, brother of the applicant on 17/05/2011 as per Hindu rites and rituals. At the time of marriage, her father had given sufficient dowry as per his status in the society and reputation. After the marriage, her in-laws started harassing the respondent. The respondent no.4, who is the husband of cousin sister of the husband of respondent was posted as Dy.SP in MP Police and at present he is on deputation as Dy.SP.Lokayukt posted at Bhopal. The cousin sister(respondent no.5) and her husband (respondent no. 4) had too much of interference in the family of the in-laws of the respondent and they persuaded her in-laws including the applicant to dispose of the property situated at Gwalior and to shift to Bhopal to start the business. The respondent no. 4 and 5 had purchased various lands in the name of the husband, the father-in-law and the sister-in-law (applicant) of the respondent and they took an amount of Rupees one crore forty lacs from the husband of the respondent for investing in the business of colonization. It was also agreed upon that they shall give 25% of the share out of the profit. When the husband of the respondent demanded his money back, then the respondent no. 4 and 5, on one pretext or other tried to avoid repayment of the amount and accordingly, on 28/01/2014, the husband of the respondent decided that he should now shift to a different house at Bhopal itself in order to avoid daily family disputes. On 28/01/2014, at about 11:00 pm, the respondent and her husband reached the house of the respondent no. 4 and 5 and husband of the respondent informed respondent no.4, 5 and their son that they will reside at Bhopal itself, therefore, they should repay the amount of Rupees one crore forty lacs. On this issue, there was a hot talk between the husband of the respondent and respondent no.4 and 5. On this issue, the husband of the respondent was under depression and, therefore, he was also not talking with the respondent very frequently. The respondent tried to convince her husband that he should not worry and the situation will improve. On 11/02/2014, the husband of the respondent took a flat from one Pramod Narayan Tripathi on rent at Bhopal and since some renovation work was to be done in the flat, therefore, the respondent and her husband were compelled to stay back in the house of respondent no.5. On the issue of repayment of Rupees one core forty lakhs, there used to be hot talks between the husband of the respondent and respondent no.4 and 5 very frequently. When the husband of the respondent was shifting his belongings to the flat, he used to tell that he has fallen in the trap and because of that on one day, he may lose his life. The respondent used to tell her husband that he should not worry and the situation would improve. On 13/02/2014, there was a hot talk between the husband of the respondent and respondent no.4, 5 and their son and, thereafter, the husband of the respondent left the house. At about 04:00 pm, the husband of the respondent came back and picked up his bag and instructed the respondent to accompany him. The respondent was carrying a pregnancy of five months and they shifted to their rented flat at 04:30 pm and her husband was very depressed. When the respondent tried to pacify her husband, then he shouted on her. At about 07:00 pm, the respondent heard that a child was weeping, therefore, She came down the stairs and at that time, her husband was watching TV. After sometime, the respondent heard some noise and when she went there, she found her husband was trying to hang himself. The respondent immediately informed the son of respondent no.5, who came to the house and removed the rope. At that time, the husband of the respondent was alive. The respondent no. 4 and his another son alsocame on the spot and told the respondent that She should not worry as her husband is still alive and took him to the hospital. When the respondent also insisted that she would also go along-with them, then she was not allowed to accompany them to the hospital. After about one hour, the daughter-in-law of the respondent no.5, came to the flat and requested her to go to their house and when the respondent insisted that She would go to the hospital, then instead of taking her to the hospital, the daughter-in-law of the respondent no.5 took her to the house of respondent no.5. Upon her enquiry, she was informed that her husband is admitted in ICU. However, in spite of repeated requests, she was not allowed to go to the Hospital. The respondent continued to cry during whole night in the room but she was not taken to the hospital. On 14/02/2014, at about 4:00 pm, the respondent was taken to Mortuary of Kasturaba Hospital. She was informed that her husband has expired. Although the respondent no.5, knew the fact that the husband of the respondent has tried to commit suicide and was seriously ill and admitted in the ICU but still they were making arrangement for a function in the house. The respondent has an apprehension that her husband must have been killed by respondent no.4, 5 and their son, so that they may not be required to repay Rupees one crore forty lacs. Her statements were recorded and although she was under depression because of death of her husband but still she was being harassed by respondent no.5 and the entire belongings including Almirah, Fridge, Washing Machine, LED etc. as well as the ornaments, memory card, laptop etc. were taken away from the flat by the respondent no. 4,5 and their son. The respondent demanded her belongings back but every-time she was threatened. It was further alleged that the elder brother-in-law of the respondent (jeth), respondent no. 3, is still unmarried and residing on the first floor of the house. These persons have installed six- seven CCTV cameras with a controlling Unit in the room of respondent no. 4. On various occasions, the respondent requested to remove the CCTV cameras installed in front of her room as well as installed in the courtyard but that has not been done and because of CCTV cameras, she is not in a position to discharge her daily works. On several occasions, she has made written complaints to the Police Station Padav, Gwalior but no action has been taken and every time she was threatened. On these allegations, a complaint under Section 12of DV Act has been filed seeking various reliefs.
Challenging the complaint filed by the respondent, it is submitted by counsel for the applicant that even if the entire allegations are accepted, then it is clear that except by mentioning the name of the applicant i.e. respondent No.2 in the cause title of the complaint, no other allegation has been made against her. The entire allegations have been made against the respondents No.3, 4 and 5. It is submitted that although in the light of the judgment passed by the Supreme Court in the case of Hiral P. Harsora v. Kusum Narottamdas Harsorareported in (2016) 10 SCC 165, a lady member of the family will also be a ”respondent” within the meaning of ”domestic violence”, but in absence of any allegation of Domestic Violence against the applicant under DV Act, she cannot be compelled to face the proceedings underSection 12 of DV Act.
Per contra, it is submitted by the counsel for the respondent that although there is no specific allegation against the applicant but in paragraph 8 of the complaint in which it is mentioned that “these persons” have installed six-seven CCTV cameras in the house and in spite of repeated requests they have not removed the CCTV Cameras which have been installed in front of the room as well as in the courtyard, clearly amounts to interference in the day to day lift style of the respondent and therefore, it would fall within the definition of “Domestic Violence”. It is further submitted that the words ” all these persons” includes the persons who are mentioned in the cause title of the complaint filed by the respondent/complainant. It is further submitted that powers under Section 482 of CrPC cannot be entertained for quashing a complaint filed under Section 12 of DV Act as there is no provision under DV Act making Section 482 of CrPC applicable to the proceeding under the DV Act. It is submitted by the counsel for the respondent that in absence of specific reference to Section 482 of CrPC inSection 28 of DV Act, it would clearly mean that the Legislature has deliberately not made the provisions of Section 482 of CrPC applicable to these proceedings. It is further submitted that preamble of this Act clearly shows that this Act has been enacted to provide more effective protection of the rights of woman guaranteed under the Constitution who is the victim of violence of any kind occurring with the family and for matters connected therein and incidental thereto. Thus, if the proceedings are allowed to be challenged frequently by the respondent before the High Court in exercise of powers under Section 482 of CrPC, then it would frustrate the very purpose of enactment of this Act. It is further submitted that domestic violence is a human right issue and the women are generally subjected to cruelty by their husbands or their relatives. After considering the various aspects of the matter and the pathetic condition of the women, the DV Act has been enacted and therefore, the Legislature has deliberately not made Section 482 of Cr.P.C., applicable to these proceedings. It is further submitted by the counsel for the respondent that it is well-established principle of law that power under Section 482 of CrPC should be exercised in rarest of rare cases as held by this Court in the cases of Mahesh Jethani and Others vs. State of Madhya Pradesh reported in 2004(2) MPHT 531 and Chintamani Shukla vs. State of Chhattisgarh reported in (2010) 1 MPHT 75 (CG).
In reply, it is submitted by the counsel for the applicant that so far as the words “all these persons” as mentioned in Para 8 of the complaint are concerned, it has to be construed in the light of the persons against whom the specific allegations have been made in the complaint. It is further submitted that from the complaint, it is clear that all the incidents of domestic violence had taken place at Bhopal where the respondent had shifted along with her husband. Installation of CCTV camera in the house for the purpose of security of the house cannot be said to be an interference in the day to day life style of the person. It is not an allegation that the CCTV camera has been installed inside the room of the respondent. Even otherwise, in absence of any specific allegation that the CCTV cameras have been got installed by the applicant with an intention to keep watch over the day to day activities and to violate the privacy of the respondent, it cannot be said that the installation of CCTV cameras would fall within the definition of “Domestic Violence”.
Heard the counsel for the parties.
First of all, the preliminary objection with regard to maintainability of this application under Section 482 of CrPC shall be considered.
Section 28 of the DV Act reads as under:-
”28. Procedure- (1) Save as otherwise provided in this Act, all proceedings under Section 12,18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of the Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23.”
Thus, it is clear that all the proceedings in this Act shall be governed by the provisions of Codeof Criminal Procedure.
So far as the submissions made by the counsel for the respondent that as Section 482 of CrPC has not been mentioned in Section 28 of DV Act, therefore, it should be inferred that the Legislature had decided not to make this provision applicable to these proceedings is concerned, the same cannot be accepted. The powers under Section 482 of CrPC can be exercised when there is no other provision under the law. The powers under Section 482 of CrPC has to be exercised in order to meet the ends of justice and to prevent the abuse of process of the Court. If this Court finds that initiation/continuation of any proceeding will amount to abuse of process of the Court, then the said proceedings can be quashed in exercise of powers under Section 482 of CrPC in order to serve the ends of justice. The factual aspect can be considered in order to examine that whether the complaint or the allegation discloses any offence/ domestic violence or not. It is well established principle of law that the factual allegations can be looked into, in exercise of powers under Section 482 of CrPC, in order to find out whether any offence is made out or not, even if the entire allegations are accepted as gospel truth. Thus, merely because Section 482 of CrPC has not been mentioned in Section 28of DV Act, no inference can be drawn that the intention of the Legislature was to oust the jurisdiction of this Court under Section 482 of CrPC. Even otherwise, it is well established principle of law that ouster of the jurisdiction of a Court, has to be specific and it cannot be implied. However, the inherent powers under Section 482 of CrPC are yet to be exercised sparingly and with great caution.
The Supreme Court in the case of M/S Zandu Pharmaceutical Works Ltd. vs Md Sharaful Haque & Anr reported in 2005 Cri.L.J, 92 has held as under:-
”8.Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on theHigh Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” Thus, where a complaint does not disclose commission of offence/domestic violence under the DV Act, then the Court may examine the question of fact.
Thus, the submission made by the counsel for the respondent with regard to non- matainability of this petition under Section 482 of CrPC is concerned, the same is misconceived and is hereby rejected.
As held earlier, while exercising the powers under Section 482 of CrPC, this Court can look into the factual aspect of the matter, to find out that, whether the allegations made in the complaint, prima facie make out an offence/domestic violence or not.
The entire complaint which has been filed by the respondent has been referred in the previous paragraphs. In the entire complaint except by mentioning the name of the applicant as respondent No.2, nothing has been alleged against her. The entire allegations of domestic violence are against the respondents No.4 and 5. So far as the installation of CCTV cameras in the house and non-removal of camera installed outside the room of the respondent as well as CCTV camera installed in the courtyard is concerned, mere installation of CCTV cameras in the house for the purpose of security cannot be said to be an incident of Domestic Violence. However, no straight jacket formula can be laid down in this regard. Sometimes a person may install CCTV Camera in order to violate the privacy of an aggrieved person. Therefore, the fact with regard to installation of CCTV cameras has to be considered in the light of the facts of each case. In the present case, the allegations of installation of CCTV cameras made in the complaint reads as under:-
^^8& ;g fd] izkfFkZuh ds tsB dh ‘kknh ugha gqbZ gS blh edku esa mij fuokljr gSa bu lHkh yksxksa us mijksDr of.kZr Hkou esa N% lkr lh-lh-Vh- dSejs yxk j[ks gSa vkSj tsB Z}kjk Vh-oh- vius dejksa esa yxk j[kk gS eq> izkfFkZuh }kjk dbZ ckj fouez fuosnu fd;k x;k fd esjs dejs ds lkeus o vkaxu esa tks lh-lh-Vh- dSejk yxk gS mldk gVk fn;k tk, rks ;s lHkh yksx ,d jk; gksdj esjs lkFk ekjihV ,oa tku ls ekjus dh /kedh nsrs gSa tcfd tks dSejs yxs gSa muls esjs thou ;kiu esa O;o/kku mRiUu gks jgk gSA^^ Thus, it is nowhere mentioned in the complaint that any CCTV camera has been installed at a place which violates the privacy of the respondent. If the CCTV camera has been installed outside her room or has been installed in a courtyard then it would not mean that it amounts to interference in the private life of the respondent, specifically when according to the respondent herself she is residing in a jointly occupied accommodation and it is not her case that all the CCTV cameras have been installed outside her room. On the contrary, her allegations are that in the entire building, six- seven CCTV cameras have been installed with a controlling unit in the room of the respondent no.3, and in spite of requests made by her, they have not removed the CCTV cameras installed outside the room of the respondent and from the courtyard. When six- seven CCTV cameras have been installed in a building and if one CCTV camera has been installed outside the room of the respondent then it cannot be said that it has been done with intention to violate the privacy of the respondent. The contention made by the counsel for the respondent that although the complaint is not happily worded and no specific allegation has been made against the applicant, but still it would be very initial stage, to quash the proceedings qua the applicant because the respondent can still explain the conduct of the applicant by leading evidence.
The contention made by the counsel for the respondent cannot be accepted. A person can be prosecuted or tried only if there are some allegations against him or her. A person cannot be made as respondent in Domestic Violence Case merely because she appears to be relative of the husband of ”an aggrieved person”.
It is submitted by the counsel for the respondent that the reliefs provided under Sections 18, 19, 20, 21, 22 of DV Act are not punitive in nature and they cannot be said to be an offence and every aggrieved person is entitled to file an application against any person who falls within the definition of “respondent” seeking relief under Sections 18 to 22 of the DV Act.
So far as the reliefs provided under Section 18 of DV Act, for restriction orders, are concerned, in absence of any complaint against the applicant that she had committed an act of domestic violence, no relief can be sought against the applicant under Section 18 of the DV Act.
So far as the residence orders under Section 19 of DV Act is concerned,it is the contention of the respondent herself that she is already residing in a shared house and there is no allegation that the applicant and other in-laws are trying to dispossess her or even threatening her to dispossess her from the said house.
So far as the relief under Section 20 of the DV Act for monetary reliefs is concerned, the same can be granted in case of Domestic Violence. When there is no allegation of domestic violence against the applicant then prima facie the respondent is not entitled for relief under Section 20 of the DV Act against the applicant.
So far the relief under Section 21 of the DV Act for custody orders is concerned, there is no allegation that the respondent is having any child or she has been deprived of her child. No prayer for custody of child has been made.
So far as the relief under Section 22 of the DV Act for compensation is concerned, it is clear that the compensation can be claimed only against a person who has committed a domestic violence.
Thus, in absence of any allegation either specific or vague against the applicant in the complaint made by the respondent under Section 12 of the DV Act, this Court is of the considered opinion that the respondent has failed to make out a prima facie case against the applicant and therefore, under this circumstance, compelling the applicant to face the proceedings under Section 12 of DV Act, would not be in the interest of justice.
Accordingly, the further proceedings in Case No.06/2016 (Domestic Violence) pending before the Court of JMFC, Gwalior under Section 12 of Protection of Women from Domestic Violence Act, 2005, qua the applicant are hereby quashed.
It is made clear that the proceedings in the above mentioned case, shall continue against the remaining respondents.
The application succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge
MKB MAHENDRA KUMAR BARIK