Mukesh Pal vs Smt. Ganga Pal on 1 May, 2017

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MCRC.4292/2017

Mukesh Pal Ors.
v.
Smt. Ganga Pal
01/05/2017
Shri V.S.Chauhan, counsel for the applicants.
Heard on the question of admission.
This application under Section 482 of CrPC has been
filed for quashing the Case No.796/2017 pending in the
Court of JMFC, Gwalior by which the Court below has taken
cognizance of the application filed by the respondent under

the provisions of Domestic Violence Act.

It is submitted by the counsel for the applicants that
the respondent/complainant was married with the applicant
no.1 on 31/01/2015 and there was no harassment of the
complainant due to the demand of dowry but it was the
complainant who was picking up dispute with her in-laws.
The applicant no.1 is ready and willing to keep the
complainant with him, therefore, an application under
Section 9 of Hindu Marriage Act has also been filed but it is
the complainant who do not want to reside with the
applicant no.1 and wants to remarry. It is submitted that
the complainant is residing with her parents and is earning
Rs.5000/- to Rs.6000/- per month and has relations with
several other boys. Whenever the applicants tried to make
a complaint to the Superintendent of Police, Gwalior, at that
time the complainant along with several armed persons
used to threaten the applicants and has deliberately lodged
several cases. It was further submitted that the
proceedings under Domestic Violence Act have been filed
without any reasonable reason and they are liable to be
dismissed only on the ground of malafides of the
informants. The Protection of Women from Domestic
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Violence Act has not been promulgated so as to misuse the
same but it has to be used only in genuine cases and when
the complainant herself is residing separately with her
parents, then the provisions of the Protection of Women
from Domestic Violence Act do not apply. All the family
members of the applicant no.1 have been implicated.

Heard the learned counsel for the parties.
The submission made by the counsel for the
applicants that the application under the provisions of
Domestic Violence Act has been filed due to malafides is
concerned, suffice it to say that the Supreme Court in the
case of Renu Kumari v. Sanjay Kumar Ors. reported
in (2008) 12 SCC 346 has held as under:-

“9. “8. Exercise of power under Section 482
Cr.P.C. in a case of this nature is the
exception and not the rule. The section does
not confer any new powers on the High
Court. It only saves the inherent power
which the Court possessed before the
enactment of Cr.P.C. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to
give effect to an order under Cr.P.C., (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. The 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
recognises 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
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constitution, all such powers as are
necessary to do the right and to undo a
wrong in the course of administration of
justice on the principle of “quando lex aliquid
alicui concedit, concedere videtur id sine quo
res ipsa esse non potest” (when the law
gives a person anything, it gives him that
without which it cannot exist). While
exercising the 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 the 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 the 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 the 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 report, the court may examine the
question of fact. When a report is sought to
be quashed, it is permissible to look into the
materials to assess what the report has
alleged and whether any offence is made out
even if the allegations are accepted in toto.

9. In R.P. Kapur v. State of Punjab (1960
(3) SCR 388) this Court summarised some
categories of cases where inherent power
can and should be exercised to quash the
proceedings:

(i) Where it manifestly appears that
there is a legal bar against the institution or
continuance e.g. want of sanction;

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(ii) where the allegations in the first
information report or complaint taken at
their face value and accepted in their entirety
do not constitute the offence alleged;

(iii) where the allegations constitute an
offence, but there is no legal evidence
adduced or the evidence adduced clearly or
manifestly fails to prove the charge. (SCR
p.393)

10. In dealing with the last category, it is
important to bear in mind the distinction
between a case where there is no legal
evidence or where there is evidence which is
clearly inconsistent with the accusations
made, and a case where there is legal
evidence which, on appreciation, may or may
not support the accusations. When exercising
jurisdiction under Section 482 CrPC, the High
Court would not ordinarily embark upon an
enquiry whether the evidence in question is
reliable or not or whether on a reasonable
appreciation of it, accusation would not be
sustained. That is the function of the trial
Judge. Judicial process should not be an
instrument of oppression, or, needless
harassment. The court should be circumspect
and judicious in exercising discretion and
should take all relevant facts and
circumstances into consideration before
issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly. At the same time the
section is not an instrument handed over to
an accused to short-circuit a prosecution and
bring about its sudden death. The scope of
exercise of power under Section 482 CrPC
and the categories of cases where the High
Court may exercise its power under it
relating to cognizable offences to prevent
abuse of process of any court or otherwise to
secure the ends of justice were set out in
some detail by this Court in State of Haryana
v. Bhajan Lal (1992 Supp (1) SCC 335). A
note of caution was, however, added that the
power should be exercised sparingly and that
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too in the rarest of rare cases. The
illustrative categories indicated by this Court
are as follows: (SCC pp.378-79, para 102)
‘(1) Where the allegations made in the
first information report or the complaint,
even if they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.

(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint and
the evidence collected in support of the same
do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.

(5) Where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.

(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the Act concerned (under which a
criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the Act concerned,
providing efficacious redress for the
grievance of the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
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where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and with
a view to spite him due to private and
personal grudge.”

11. As noted above, the powers possessed
by the High Court under Section 482 Cr.P.C.
are very wide and the very plenitude of the
power requires great caution in its exercise.
The court must be careful to see that its
decision, in exercise of this power, is based
on sound principles. The inherent power
should not be exercised to stifle a legitimate
prosecution. The High Court being the
highest court of a State should normally
refrain from giving a prima facie decision in a
case where the entire facts are incomplete
and hazy, more so when the evidence has
not been collected and produced before the
Court and the issues involved, whether
factual or legal, are of magnitude and cannot
be seen in their true perspective without
sufficient material. Of course, no hard-and-
fast rule can be laid down in regard to cases
in which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage. It would not be
proper for the High Court to analyse the case
of the complainant in the light of all
probabilities in order to determine whether a
conviction would be sustainable and on such
premises arrive at a conclusion that the
proceedings are to be quashed. It would be
erroneous to assess the material before it
and conclude that the complaint cannot be
proceeded with. When an information is
lodged at the police station and an offence is
registered, then the mala fides of the
informant would be of secondary importance.
It is the material collected during the
investigation and evidence led in the court
which decides the fate of the accused
person. The allegations of mala fides against
the informant are of no consequence and
cannot by themselves be the basis for
quashing the proceedings. [See
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Dhanalakshmi v. R. Prasanna Kumar (1990
Supp SCC 686), State of Bihar v. P.P. Sharma
(1992 Supp (1) SCC 222), Rupan Deol Bajaj
v. Kanwar Pal Singh Gill (1995(6) SCC 194) ,
State of Kerala v. O.C. Kuttan (1999(2) SCC

651), State of U.P. v. O.P. Sharma (1996 (7)
SCC 705), Rashmi Kumar v. Mahesh Kumar
Bhada (1997 (2) SCC 397), Satvinder Kaur v.
State (Govt. of NCT of Delhi) (1999 (8) SCC

728) and Rajesh Bajaj v. State NCT of Delhi
(1999 (3) SCC 259)]
The above position was again reiterated in
State of Karnataka v. M.Devendrappa
(2002(3) SCC 89), State of M.P. v. Awadh
Kishore Gupta (2004(2) SCC 691) and State
of Orissa v. Saroj Kr. Sahoo (2005(13) SCC

540).”

Thus, it is clear that the malafides of the informant
has no relevance if the allegations made against the
accused persons prima facie make out an offence.

In the present case, the complainant has filed an
application under the Protection of Women from Domestic
Violence Act for grant of monetary relief as well as for
separate residence.

It is further submitted that the panchanama has been
executed by the villagers to the effect that the applicants
are being falsely implicated by the complainant and the
complainant is interested in remarrying, therefore, the
complainant has no right to claim anything from the
applicant no.1. It is very surprising that while executing the
panchanama, the villagers have also made certain
comments with regard to the propriety and correctness of
the different provisions of the Protection of Women from
Domestic Violence Act. The panchayat or a group of
persons have no right to make any comment on the
statutory provisions of any statute and if anybody is of the
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view that any provision of law is ultra virus, then he has a
remedy of challenging the validity of the said provision
either by filing a writ petition under Article 226 of the
Constitution of India or by approaching the Hon’ble
Supreme Court directly under Article 32 of the Constitution
of India but nobody has a right to execute a panchanama
mentioning that the provisions of a particular act are being
misused at large. The applicant also could not point out
that on what basis the group of persons had executed a
panchanama mentioning therein that the intention of the
complainant is to remarry. The group of persons cannot
give their own decisions by mentioning that if the intention
of the complainant is to remarry, then she has no right or
title to claim any benefit from the applicant no.1. Thus, the
panchanama, so executed by the group of persons, is liable
to be rejected and is hereby rejected.

So far as the contention of the applicant that as the
complainant is residing separately in her parents house,
therefore, the provisions of Protection of Women from
Domestic Violence Act would not apply is concerned, suffice
it to say that the said contention is misconceived.

In the case of V.D.Bhanot v. Savita Bhanot
reported in (2012) 3 SCC 183, the Supreme Court has
held as under:

“12. We agree with the view expressed by the
High Court that in looking into a complaint
under Section 12 of the PWD Act, 2005, the
conduct of the parties evern prior to the
coming into force of the PWD Act, could be
taken into consideration while passing an
order under Sections 18,19 and 20 thereof. In
our view, the Delhi High Court has also rightly
held that even if a wife, who had shared a
household in the past, but was no longer
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doing so when the Act came into force, would
still be entitled to the protection of the PWD
Act, 2005.”

Thus, it is clear that once a lady is turned out of her
matrimonial house and if she is residing in her parents
house, then it cannot be said that the complainant is not
entitled for any of the relief as provided under the
Protection of Women from Domestic Violence Act. It is clear
that for making provisions of Domestic Violence Act
applicable, it is not necessary that the aggrieved person
must reside in her matrimonial house. If an aggrieved
person has been ousted from her matrimonial house, even
then the application under the Protection of Women from
Domestic Violence Act is maintainable.

So far as the contention of the counsel for the
applicants that almost all the members of the family have
been made respondents is concerned, it is clear from the
cause title that the applicants are residing jointly.

The Supreme Court in the case of Hiral P Harsora
Ors. v. Kusum Narottamdas Harsora reported in
(2016) 10 SCC 165 has held as under:-

“50. We, therefore, set aside the impugned
judgment of the Bombay High Court and
declare that the words “adult male” in
Section 2(q) of the 2005 Act will stand
deleted since these words do not square
with Article 14 of the Constitution of India.
Consequently, the proviso to Section 2(q),
being rendered otiose, also stands deleted.”
The “respondent” was earlier defined as 2(q):-

“2(q). “respondent” means any adult male
person who is, or has been, in a domestic
relationship with the aggrieved person and
against whom the aggrieved person has
sought any relief under this Act:”

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But after the judgment passed by Supreme Court in
the case of Hiral P. Harsora (supra), now the definition
of the word “respondent” would be:

“2(q). “respondent” means any (adult male

– ultra virus) person who is, or has been, in
a domestic relationship with the aggrieved
person and against whom the aggrieved
person has sought any relief under this
Act:”

Thus, in view of the wide definition of respondent as
given under Section 2(q) of Domestic Violence Act, it is
clear that merely because the brother-in-law has been
made a respondent to the proceedings, then it cannot be
said that the proceedings are vitiated because of the
malafides of the complainant.

Before parting with the case, it would be appropriate
for this Court to mention that the observations have been
made in the light of the limited scope of provisions of
Section 482 of CrPC, therefore, the Trial Court must not get
prejudiced by any of the observations made by this Court
in this order.

Accordingly, this application fails and is hereby
dismissed.

(G.S.Ahluwalia)
AKS Judge

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