THE HIGH COURT OF MADHYA PRADESH
Gwalior, dtd. 18/01/2018
Shri Yash Sharma, warn for a applicant.
Shri Pratip Visoria, warn for a respondent.
This focus under Section 482 of CrPC has been filed for quashing offer record in Case No.06/2016 (Domestic Violence) tentative before a Court of JMFC, Gwalior under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in brief ”DV Act”].
The undisputed fact is that a applicant is a sister-in-law of a respondent.
The compulsory contribution for a ordering of a benefaction focus in brief are that a respondent has filed an focus under Section 12 of DV Act for reliefs under Sections 18, 19, 20, 21and 22 of DV Act opposite a applicant and other persons, that is tentative before a Court of JMFC, Gwalior. The Magistrate has released summons on a pronounced censure to a respondents mentioned therein, including a applicant.
In a complaint, it is purported by a respondent that she was married to Saket Dixit, hermit of a applicant on 17/05/2011 as per Hindu rites and rituals. At a time of marriage, her father had given sufficient dowry as per his standing in a multitude and reputation. After a marriage, her in-laws started badgering a respondent. The respondent no.4, who is a father of cousin sister of a father of respondent was posted as Dy.SP in MP Police and during benefaction he is on deputation as Dy.SP.Lokayukt posted during Bhopal. The cousin sister(respondent no.5) and her father (respondent no. 4) had too most of division in a family of a in-laws of a respondent and they swayed her in-laws including a applicant to dispose of a skill situated during Gwalior and to change to Bhopal to start a business. The respondent no. 4 and 5 had purchased several lands in a name of a husband, a father-in-law and a sister-in-law (applicant) of a respondent and they took an volume of Rupees one crore forty lacs from a father of a respondent for investing in a business of colonization. It was also concluded on that they shall give 25% of a share out of a profit. When a father of a respondent demanded his income back, afterwards a respondent no. 4 and 5, on one stratagem or other attempted to equivocate amends of a volume and accordingly, on 28/01/2014, a father of a respondent motionless that he should now change to a opposite chateau during Bhopal itself in sequence to equivocate daily family disputes. On 28/01/2014, during about 11:00 pm, a respondent and her father reached a chateau of a respondent no. 4 and 5 and father of a respondent sensitive respondent no.4, 5 and their son that they will reside during Bhopal itself, therefore, they should repay a volume of Rupees one crore forty lacs. On this issue, there was a prohibited speak between a father of a respondent and respondent no.4 and 5. On this issue, a father of a respondent was underneath basin and, therefore, he was also not articulate with a respondent really frequently. The respondent attempted to remonstrate her father that he should not worry and a conditions will improve. On 11/02/2014, a father of a respondent took a prosaic from one Pramod Narayan Tripathi on lease during Bhopal and given some restoration work was to be finished in a flat, therefore, a respondent and her father were compelled to stay behind in a chateau of respondent no.5. On a emanate of amends of Rupees one core forty lakhs, there used to be prohibited talks between a father of a respondent and respondent no.4 and 5 really frequently. When a father of a respondent was changeable his effects to a flat, he used to tell that he has vexed in a trap and since of that on one day, he might mislay his life. The respondent used to tell her father that he should not worry and a conditions would improve. On 13/02/2014, there was a prohibited speak between a father of a respondent and respondent no.4, 5 and their son and, thereafter, a father of a respondent left a house. At about 04:00 pm, a father of a respondent came behind and picked adult his bag and educated a respondent to accompany him. The respondent was carrying a pregnancy of 5 months and they shifted to their rented prosaic during 04:30 pm and her father was really depressed. When a respondent attempted to soften her husband, afterwards he shouted on her. At about 07:00 pm, a respondent listened that a child was weeping, therefore, She came down a stairs and during that time, her father was examination TV. After sometime, a respondent listened some sound and when she went there, she found her father was perplexing to hang himself. The respondent immediately sensitive a son of respondent no.5, who came to a chateau and private a rope. At that time, a father of a respondent was alive. The respondent no. 4 and his another son alsocame on a mark and told a respondent that She should not worry as her father is still alive and took him to a hospital. When a respondent also insisted that she would also go along-with them, afterwards she was not authorised to accompany them to a hospital. After about one hour, a daughter-in-law of a respondent no.5, came to a prosaic and requested her to go to their chateau and when a respondent insisted that She would go to a hospital, afterwards instead of holding her to a hospital, a daughter-in-law of a respondent no.5 took her to a chateau of respondent no.5. Upon her enquiry, she was sensitive that her father is certified in ICU. However, in annoy of steady requests, she was not authorised to go to a Hospital. The respondent continued to cry during whole night in a room yet she was not taken to a hospital. On 14/02/2014, during about 4:00 pm, a respondent was taken to Mortuary of Kasturaba Hospital. She was sensitive that her father has expired. Although a respondent no.5, knew a fact that a father of a respondent has attempted to dedicate self-murder and was severely ill and certified in a ICU yet still they were creation arrangement for a duty in a house. The respondent has an confinement that her father contingency have been killed by respondent no.4, 5 and their son, so that they might not be compulsory to repay Rupees one crore forty lacs. Her statements were available and nonetheless she was underneath basin since of genocide of her father yet still she was being tormented by respondent no.5 and a whole effects including Almirah, Fridge, Washing Machine, LED etc. as good as a ornaments, memory card, laptop etc. were taken divided from a prosaic by a respondent no. 4,5 and their son. The respondent demanded her effects behind yet every-time she was threatened. It was offer purported that a elder brother-in-law of a respondent (jeth), respondent no. 3, is still unwed and staying on a initial building of a house. These persons have commissioned six- 7 CCTV cameras with a determining Unit in a room of respondent no. 4. On several occasions, a respondent requested to mislay a CCTV cameras commissioned in front of her room as good as commissioned in a yard yet that has not been finished and since of CCTV cameras, she is not in a position to liberate her daily works. On several occasions, she has finished created complaints to a Police Station Padav, Gwalior yet no movement has been taken and any time she was threatened. On these allegations, a censure under Section 12of DV Act has been filed seeking several reliefs.
Challenging a censure filed by a respondent, it is submitted by warn for a applicant that even if a whole allegations are accepted, afterwards it is transparent that solely by mentioning a name of a applicant i.e. respondent No.2 in a means pretension of a complaint, no other claim has been finished opposite her. The whole allegations have been finished opposite a respondents No.3, 4 and 5. It is submitted that nonetheless in a light of a visualisation upheld by a Supreme Court in a box of Hiral P. Harsora v. Kusum Narottamdas Harsorareported in (2016) 10 SCC 165, a lady member of a family will also be a ”respondent” within a clarification of ”domestic violence”, yet in deficiency of any claim of Domestic Violence opposite a applicant under DV Act, she can't be compelled to face a record underSection 12 of DV Act.
Per contra, it is submitted by a warn for a respondent that nonetheless there is no specific claim opposite a applicant yet in divide 8 of a censure in that it is mentioned that “these persons” have commissioned six-seven CCTV cameras in a chateau and in annoy of steady requests they have not private a CCTV Cameras that have been commissioned in front of a room as good as in a courtyard, clearly amounts to division in a day to day lift character of a respondent and therefore, it would tumble within a clarification of “Domestic Violence”. It is offer submitted that a difference ” all these persons” includes a persons who are mentioned in a means pretension of a censure filed by a respondent/complainant. It is offer submitted that powers under Section 482 of CrPC can't be entertained for quashing a censure filed under Section 12 of DV Act as there is no sustenance under DV Act making Section 482 of CrPC germane to a move underneath the DV Act. It is submitted by a warn for a respondent that in deficiency of specific anxiety to Section 482 of CrPC inSection 28 of DV Act, it would clearly meant that a Legislature has deliberately not finished a supplies of Section 482 of CrPC germane to these proceedings. It is offer submitted that rough of this Act clearly shows that this Act has been enacted to yield some-more effective insurance of a rights of lady guaranteed underneath a Constitution who is a plant of assault of any kind occurring with a family and for matters connected therein and immaterial thereto. Thus, if a record are authorised to be challenged frequently by a respondent before a High Court in practice of powers under Section 482 of CrPC, afterwards it would perplex a really purpose of dramatization of this Act. It is offer submitted that domestic assault is a tellurian right emanate and a women are generally subjected to cruelty by their husbands or their relatives. After deliberation a several aspects of a matter and a pitiable condition of a women, the DV Act has been enacted and therefore, a Legislature has deliberately not made Section 482 of Cr.P.C., germane to these proceedings. It is offer submitted by a warn for a respondent that it is timeless element of law that energy under Section 482 of CrPC should be exercised in rarest of singular cases as hold by this Court in a 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 a warn for a applicant that so distant as a difference “all these persons” as mentioned in Para 8 of a censure are concerned, it has to be construed in a light of a persons opposite whom a specific allegations have been finished in a complaint. It is offer submitted that from a complaint, it is transparent that all a incidents of domestic assault had taken place during Bhopal where a respondent had shifted along with her husband. Installation of CCTV camera in a chateau for a purpose of confidence of a chateau can't be pronounced to be an division in a day to day life character of a person. It is not an claim that a CCTV camera has been commissioned inside a room of a respondent. Even otherwise, in deficiency of any specific claim that a CCTV cameras have been got commissioned by a applicant with an goal to keep watch over a day to day activities and to violate a remoteness of a respondent, it can't be pronounced that a designation of CCTV cameras would tumble within a clarification of “Domestic Violence”.
Heard a warn for a parties.
First of all, a rough conflict with courtesy to maintainability of this focus under Section 482 of CrPC shall be considered.
Section 28 of a DV Act reads as under:-
”28. Procedure- (1) Save as differently supposing in this Act, all record under Section 12,18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by a provisions of a Code of a Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall forestall a Court from laying down a possess procession for ordering of an focus under Section 12 or underneath sub-section (2) of Section 23.”
Thus, it is transparent that all a record in this Act shall be governed by a provisions of Codeof Criminal Procedure.
So distant as a submissions finished by a warn for a respondent that as Section 482 of CrPC has not been mentioned in Section 28 of DV Act, therefore, it should be unspoken that a Legislature had motionless not to make this sustenance germane to these record is concerned, a same can't be accepted. The powers under Section 482 of CrPC can be exercised when there is no other sustenance underneath a law. The powers under Section 482 of CrPC has to be exercised in sequence to accommodate a ends of probity and to forestall a abuse of routine of a Court. If this Court finds that initiation/continuation of any move will volume to abuse of routine of a Court, afterwards a pronounced record can be quashed in practice of powers under Section 482 of CrPC in sequence to offer a ends of justice. The significant aspect can be deliberate in sequence to inspect that possibly a censure or a claim discloses any offence/ domestic assault or not. It is good determined element of law that a significant allegations can be looked into, in practice of powers under Section 482 of CrPC, in sequence to find out possibly any corruption is finished out or not, even if a whole allegations are supposed as gospel truth. Thus, merely because Section 482 of CrPC has not been mentioned in Section 28of DV Act, no deduction can be drawn that a goal of a Legislature was to reject a office of this Court under Section 482 of CrPC. Even otherwise, it is good determined element of law that ouster of a office of a Court, has to be specific and it can't be implied. However, a fundamental powers under Section 482 of CrPC are nonetheless to be exercised sparingly and with good caution.
The Supreme Court in a box of M/S Zandu Pharmaceutical Works Ltd. vs Md Sharaful Haque & Anr reported in 2005 Cri.L.J, 92 has hold as under:-
”8.Exercise of energy underneath Section 482 of a Code in a box of this inlet is a difference and not a rule. The Section does not consult any new powers on theHigh Court. It usually saves a fundamental energy that a Court hexed before a dramatization of a Code. It envisages 3 resources underneath that a fundamental office might be exercised, namely, (i) to give outcome to an sequence underneath a Code,(ii) to forestall abuse of a routine of court, and (iii) to differently secure a ends of justice. It is conjunction probable nor fascinating to lay down any resistant sequence that would oversee a practice of fundamental jurisdiction. No legislative dramatization traffic with procession can yield for all cases that might presumably arise. Courts, therefore, have fundamental powers detached from demonstrate supplies of law that are compulsory for correct liberate of functions and duties imposed on them by law. That is a doctrine that finds countenance in a territory that merely recognizes and preserves fundamental powers of a High Courts. All courts, possibly polite or rapist possess, in a deficiency of any demonstrate provision, as fundamental in their constitution, all such powers as are compulsory to do a right and to remove a wrong in march of administration of probity on a element “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when a law gives a chairman anything it gives him that though that it can't exist). While sportive powers underneath a section, a probity does not duty as a probity of seductiveness or revision. Inherent office underneath a territory yet far-reaching has to be exercised sparingly, delicately and with warn and usually when such practice is fit by a tests privately laid down in a territory itself. It is to be exercised ex debito justitiae to do genuine and estimable probity for a administration of that alone courts exist. Authority of a probity exists for enrichment of probity and if any try is finished to abuse that management so as to furnish injustice, a probity has energy to forestall abuse. It would be an abuse of routine of a probity to concede any action which would outcome in misapplication and forestall graduation of justice. In practice of a powers probity would be fit to stifle any move if it finds that initiation/continuance of it amounts to abuse of a routine of probity or quashing of these record would differently offer a ends of justice. When no corruption is disclosed by a complaint, a probity might inspect a doubt of fact. When a censure is sought to be quashed, it is slight to demeanour into a materials to consider what a complainant has purported and possibly any corruption is finished out even if a allegations are supposed in toto.” Thus, where a censure does not divulge elect of offence/domestic assault underneath the DV Act, afterwards a Court might inspect a doubt of fact.
Thus, a acquiescence finished by a warn for a respondent with courtesy to non- matainability of this petition under Section 482 of CrPC is concerned, a same is misconceived and is hereby rejected.
As hold earlier, while sportive a powers under Section 482 of CrPC, this Court can demeanour into a significant aspect of a matter, to find out that, possibly a allegations finished in a complaint, prima facie make out an offence/domestic assault or not.
The whole censure that has been filed by a respondent has been referred in a prior paragraphs. In a whole censure solely by mentioning a name of a applicant as respondent No.2, zero has been purported opposite her. The whole allegations of domestic assault are opposite a respondents No.4 and 5. So distant as a designation of CCTV cameras in a chateau and non-removal of camera commissioned outward a room of a respondent as good as CCTV camera commissioned in the courtyard is concerned, small designation of CCTV cameras in a chateau for a purpose of confidence can't be pronounced to be an occurrence of Domestic Violence. However, no true coupler regulation can be laid down in this regard. Sometimes a chairman might implement CCTV Camera in sequence to violate a remoteness of an depressed person. Therefore, a fact with courtesy to designation of CCTV cameras has to be deliberate in a light of a contribution of any case. In a benefaction case, a allegations of designation of CCTV cameras finished in a censure 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 a censure that any CCTV camera has been commissioned during a place that violates a remoteness of a respondent. If a CCTV camera has been commissioned outward her room or has been commissioned in a yard afterwards it would not meant that it amounts to division in a private life of a respondent, privately when according to a respondent herself she is staying in a jointly assigned accommodation and it is not her box that all a CCTV cameras have been commissioned outward her room. On the contrary, her allegations are that in a whole building, six- 7 CCTV cameras have been commissioned with a determining section in a room of a respondent no.3, and in annoy of requests finished by her, they have not private a CCTV cameras commissioned outward a room of a respondent and from a courtyard. When six- 7 CCTV cameras have been commissioned in a building and if one CCTV camera has been commissioned outward a room of a respondent afterwards it can't be pronounced that it has been finished with goal to violate a remoteness of a respondent. The row finished by a warn for a respondent that nonetheless a censure is not happily worded and no specific claim has been finished opposite a applicant, yet still it would be really initial stage, to stifle a record qua a applicant since a respondent can still explain a control of a applicant by heading evidence.
The row finished by a warn for a respondent can't be accepted. A chairman can be prosecuted or attempted usually if there are some allegations opposite him or her. A chairman can't be finished as respondent in Domestic Violence Case merely since she appears to be relations of a father of ”an depressed person”.
It is submitted by a warn for a respondent that a reliefs supposing under Sections 18, 19, 20, 21, 22 of DV Act are not punitive in inlet and they can't be pronounced to be an corruption and any depressed chairman is entitled to record an focus opposite any chairman who falls within a clarification of “respondent” seeking service under Sections 18 to 22 of a DV Act.
So distant as a reliefs supposing under Section 18 of DV Act, for limitation orders, are concerned, in deficiency of any censure opposite a applicant that she had committed an act of domestic violence, no service can be sought opposite a applicant under Section 18 of a DV Act.
So distant as a chateau orders under Section 19 of DV Act is concerned,it is a row of a respondent herself that she is already staying in a common chateau and there is no claim that a applicant and other in-laws are perplexing to banish her or even melancholy her to banish her from a pronounced house.
So distant as a service under Section 20 of a DV Act for financial reliefs is concerned, a same can be postulated in box of Domestic Violence. When there is no claim of domestic assault opposite a applicant afterwards prima facie a respondent is not entitled for service under Section 20 of a DV Act opposite a applicant.
So distant a service under Section 21 of a DV Act for control orders is concerned, there is no claim that a respondent is carrying any child or she has been deprived of her child. No request for control of child has been made.
So distant as a service under Section 22 of a DV Act for remuneration is concerned, it is transparent that a remuneration can be claimed usually opposite a chairman who has committed a domestic violence.
Thus, in deficiency of any claim possibly specific or deceptive opposite a applicant in a censure finished by a respondent under Section 12 of a DV Act, this Court is of a deliberate opinion that a respondent has failed to make out a prima facie box opposite a applicant and therefore, underneath this circumstance, constrained a applicant to face a record under Section 12 of DV Act, would not be in a seductiveness of justice.
Accordingly, a offer record in Case No.06/2016 (Domestic Violence) tentative before a Court of JMFC, Gwalior under Section 12 of Protection of Women from Domestic Violence Act, 2005, qua a applicant are hereby quashed.
It is finished transparent that a record in a above mentioned case, shall continue opposite a remaining respondents.
The focus succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge
MKB MAHENDRA KUMAR BARIK