KA HC: Application of Non Maintainability of DV u Crpc468 Can not be Rejected Mechanically

Karnataka High Court
Sri Vinayak vs Smt. Vanitha Vasu @ Vanitha … on 8 June, 2017
Author: K.N.Phaneendra
1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF JUNE 2017

BEFORE

THE HON’BLE MR.JUSTICE K.N. PHANEENDRA

CRL P.No.6527/2016

 

BETWEEN:

1. SRI VINAYAK
S/O CHELUVANATH IYANGAR
HINDU AGED ABOUT 39 YEARS.

2. SRI. CHELUVANATH IYANGAR
HINDU AGED ABOUT 76 YEARS.

3. SMT. BHARATHI
W/O. CHELUVANTAH IYANGAR
HINDU, AGED ABOUT 69 YEARS

ALL 1 TO 3 RESIDING AT
OLD NO.11, NEW NO.23
‘AKSHAY KUTEER’ 16TH CROSS
MALLESWARAM
BENGALURU 560 003. …PETITIONERS.

(BY SMT. JAYASHREE PRASAD, ADV.)

AND:

SMT. VANITHA VASU @
VANITHA VINAYAK
W/O VINAYAK
HINDU AGED ABOUT 50 YEARS
R/A NO.13, FFI VASISITA DHAMA
2

 

RMV 2ND STAGE
BENGALURU – 560 094. …RESPONDENT

(BY SRI RAVI R. ADV.)

THIS CRIMINAL PETITION IS FILED UNDER U/S 482 OF
CR.P.C. PRAYING TO QUASH THE COMPLAINT DATED
23.07.2015 AND QUASH THE ORDER DATED 23.08.2016 ON
THE FILE OF IV M.M.T.C., BANGALORE IN
CRL.MISC.NO.88/2015 AS PER ANNEXURE-A.

 

THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING: –

 

ORDER
The petitioners have come up before this Court on the two interlocutory orders passed by the MMTC IV in Crl.Misc.No.88/2015. The order dated 23.7.2015 impugned in this petition, wherein the Magistrate has ordered to issue notice to the parties after entertaining the petition under Protection of Women from Domestic Violence Act, 2005 and another order dated 23.8.2016 rejecting the application filed by the respondent under Section 468 of the Code of Criminal Procedure (for short ‘the Cr.P.C.) questioning the jurisdiction of the trial Court. The first order virtually merges with the second order as the trial Court has rejected the petition under Section 482 of Cr.P.C. The tone and tenor of the order passed by the trial Court dated 23.8.2016 shows that the respondent has filed an application under Section 468 of Cr.P.C. questioning the maintainability of the petition specifically stating that the petition is not maintainable. The said application was contested by the petitioner therein by filing objections. The trial Court has considered the said application and objections, but has not given any finding with regard to the maintainability and jurisdiction to entertain the petition by the Court. However, it observed that “In the present case, it is little difficult point to decide, whether the petition is maintainable or not without recording the evidence with regard to the maintainability.”

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2. Hence, directed the petitioner to lead her evidence to prove the maintainability of the petition, on that ground the trial Court has dismissed the application filed under Section 468 of Cr.P.C.

3. After hearing the learned counsels and perusing the records, it is evident from the records that the Court has already recorded the evidence of PW.1 and the said evidence is due for cross-examination. The above said order of the learned Magistrate, in my opinion, in rejecting the application of the petitioners is not proper. The learned Magistrate could have kept alive the said application filed under Section 468 of Cr.P.C., till the evidence of the parties are over with regard to maintainability and the Court ought to have passed the orders with regard to maintainability. If the Court is of the opinion that it has jurisdiction, then only the Court should proceed with the matter on merits. Therefore, under the above said circumstances, the order dated 23.8.2016 passed insofar as it relates to rejection of the petition under Section 468 of Cr.P.C. deserves to be set aside. However, the other observation made by the learned Judge that the petitioner has to lead her evidence to prove the maintainability of the petition cannot be disturbed.

4. With this observation the following order is passed :

The petition is partly allowed. The order passed by the IV MMTC dated 23.8.2016 IN Crl.Misc.No.88/2015 in rejecting the application filed under Section 468 of Cr.P.C. is hereby set aside. The said application is restored on the file of the learned Magistrate with a specific direction that the Magistrate has to confine the evidence recorded already and to be recorded insofar as the respondent is concerned only with regard to the maintainability of the petition. The trial Court first has to give its finding with regard to maintainability of the petition and its jurisdiction and thereafter, if the Court holds that the petition is maintainable, then proceed with the case on merits. It is incumbent upon the Court to pass appropriate orders under Section 468 of Cr.P.C. filed by the petitioners before proceeding with the matter on merits. The trial Court is hereby directed to record the evidence with regard to maintainability of the petition, by providing opportunity to both the parties and pass orders on the application filed under Section 468 of Cr.P.C. within two months from the date of receipt of a copy of this orders.

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Sd/-

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