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Akhilesh Kumar Singh And Another vs State Of U.P. And Another on 20 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved

Case :- CRIMINAL REVISION No. – 885 of 2015

Revisionist :- Akhilesh Kumar Singh And Another

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- V. Singh

Counsel for Opposite Party :- Govt.Advocate,Akhilesh Kumar,Dhiraj Singh,Manish Tiwari,Shailendra Kumar Pandey,Surya Pratap Singh Parmar,V.K. Baranwal

*******

Hon’ble Ravindra Nath Kakkar,J.

This criminal revision has been preferred against the judgment and order dated 20.2.2015, passed by 3rd Additional Sessions Judge, Court No.6, Varanasi in Criminal Appeal No.146 of 2014 (Akhilesh Kumar Singh and another Vs. Smt. Shriti Singh and another) filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short, the Act 2005) arising out of judgment and order dated 30.8.2014 passed by Additional Chief Judicial Magistrate, Court No.6, Varanasi in Case No.1734 of 2014 (Smt. Shriti Singh Vs. Akhilesh Kumar Singh) filed under Section 12 of Act, 2005 rejecting the applicant’s application about maintainability of the case.

The brief facts, which are relevant for the purpose of this revision, are that opposite party no.2 Smt. Shriti Singh filed a petition under Section 12 of the Act, 2005 against revisionist claiming protection from domestic violence, residence order, monetary reliefs, custody and compensation order alleging that marriage was solemnized between revisionist and opposite party no.2 on 24.11.2007. Illegal demand of dowry resulted strain relation between spouses. A wagan car, cash of Rs.20 lacs, jewellery, colour T.V., home theatre and electronic goods were demanded. Some of the demands were fulfilled by the father of the opposite party no.2 and on the assurance of Rs.14 lacs the marriage was solemnized. After solemnization of the marriage opposite party no.2 went to her in-laws house but she was harassed by the husband and the in-laws. On 1.3.2008 she was physically assaulted and the revisionist ousted the opposite party no.2 from his house. Further allegation is that on 9.7.2008 opposite party no.2 again came to the house of the revisionist with her father but they were not permitted to enter into the matrimonial home. Further it is alleged that on 24.1.2010 opposite party no.2 again came to the house of the revisionist along with her father but revisionist and his other family member caused knife injury to opposite party no.2 and her father. Thereafter an FIR was lodged under Sections 498-A, 323, 324, 325, 504, 506 I.P.C. The medical was conducted by the doctors of the Medical Board and after investigation final report has been submitted. The opposite party no.2 filed a protest petition which was treated as a compliant case and summoning order under Sections 498-A, 323, 324, 504, 506 I.P.C. was passed. It also transpires from the record that the discharge application, moved by the revisionist, was rejected by the High Court. It transpires from the record that preliminary objection was filed by the revisionist on 26.3.2014 alleging that proceeding under Section 12 of the Act, 2005 is not maintainable. Perusal of the preliminary objection reveals that three grounds were raised. Firstly opposite party no.2 had left her husband’s house since long i.e. from 1.3.2008. Secondly, opposite party no.2 is getting interim maintenance under Section 24 of the Hindu Marriage Act and further she had already moved an application under Section 27 of the Hindu Marriage Act, 1955 (for short, “the Act, 1955”) in a divorce proceeding for returning of the articles which is still pending; and thirdly complaint is barred by limitation provided under Section 468 of Cr.P.C. The court below had rejected the preliminary objection. Thereafter an appeal was preferred against the dismissal of the preliminary objection before the Additional Session Judge, Court No.6, Varanasi which was also dismissed, hence the present revision is preferred against both the orders.

It is contended on behalf of the learned counsel for the revisionist that opposite party no.2 is living separately at her parental house since 1.3.2008 and an application under Section 12 of the Act, 2005 was filed in February, 2013, i.e. after five years of the alleged incident, so the proceeding is barred under Section 468 of Cr.P.C. in view of the provisions of Section 28 of the Act, 2005. It is next contended that opposite party no.2 had already filed a petition under Section 27 of the Act, 1955 for the return of her articles which was numbered as Misc. Case No.69 of 2014. So she cannot file an application under Section 19 of the Act, 2005. It is further contended that complaint could be filed only within a period of one year from the date of incident so the complaint is time barred. It is next contended that no case of domestic violence can be inferred as the opposite party no.2 had already filed maintenance under Section 24 of the Act, 1955 and a separate proceeding under Section 27 of the Act, 1955 for the return of articles is still pending. It is further submitted that complaint under the Domestic Violence Act can only be filed when the marriage union subsisted. Since the physical relationship came to an end, so she cannot claim to be living in any domestic relationship. Opposite party no.2 is not an aggrieved person, so the application within the definition of “aggrieved person” under the Domestic Violence Act and relief under Section 12 can only be granted if an aggrieved person is in a domestic relationship. The court below has not appreciated the definition between violence committed on a person living in a separate household and the violence committed on a person living in shared household. The word at any point of time mentioned in the definition of Domestic relationship cannot be defined as at any point of time in the past whether the right to live survives or not. Since the opposite party no.2 was living separately since 2008 and the compliant was filed in 2013, as such the application was not maintainable. Lastly, it is contended that the court below had failed to consider the interpretation of the word “aggrieved person” and the word “at any point of time”. Therefore, the order passed by the court below is illegal and against the provisions of law and hence not sustainable in the eyes of law.

In support of his contention learned counsel for the revisionist has drawn attention towards the various case laws cited as under :-

(i) Indrajeet Singh Grewal Vs. State of Punjab (Criminal Appeal No.1633 of 2011) (Supreme Court)

(ii) Japani Saho Vs. Chandra Sekhar Mohanti (AIR 2007 SC 2762) (Criminal Appeal No.942 of 2007)

(iii) Harbans Lal Malik Vs. Payal Malik (Criminal Revision No.253 of 2010) (Delhi High Court)

(iv) Sejal Dharmesh Ved Vs. State of Maharastra (Criminal Application No.160 of 2011) (Bombay High Court)

(v) Nageshwar Prasad Mishra Vs. State of U.P. (2014 ACC 177)

(vi) Kishore Vs. Shalini (Criminal Writ Petition No.37 of 2008) (Bombay High Court).

Rebutting the above arguments, learned counsel for the opposite party no.2 submitted that any aggrieved person under the provisions of Section 12 of the Act, 2005 can file a complaint before the Protection Officer or the Magistrate. Next contended that the pendency before the civil court, revenue court or the criminal court is not a bar for the petition under Section 12 of the Act, 2005. Further contended that since the petition is filed under Section 12 of the Act, 2005 and not under Section 31 of the Domestic Violence Act, so the provision of Section 468 Cr.P.C. neither applicable nor the petition is barred under this provision. Lastly argued that the revisionist has ample opportunity to file his defence in their objection against the main petition. Learned court below, both the trial court as well as appellate court had dismissed the preliminary objections raised. After appreciation of the legal point as raised by the revisionist in this court, there is concurrent finding of dismissal with regard to the maintainability of the complaint under Section 12 of the Act, 2005. Neither there is any infirmity nor perversity so the revision lacks merit and is liable to be dismissed.

In support of his contention opposite party no.2 has cited the following case laws :-

(i) Krishna Bhattacharjee Vs. Sarathi Choudhary another, 2016 (1) JIC 649(SC)

(ii) V.D. Bhanot Vs. Savita Bhanot, 2012 (2) SCC (Cri) 102

(iii) Preetam Singh Vs. State of U.P., 2013 (1) Crimes 393 (All)

(iv) Rajesh Kumar Chaudhary Vs. State of U.P. and another, 2017(98) ACC 601 (All)

(v) Yogesh Anantrai Bhatt Vs. State of Gujrat, 2017 (Cri.L.615 (Guj)

Before proceeding with the subject and in order to appreciate the contention as raised by both the parties, I would like to refer the relevant provisions of the Act, 2005.

Section 2(a) of the Act defines :- “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

Section 2(f) defines :- “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Section 2(s) defines :- “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either or therm in respect of the which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

Section 2(q) defines “respondent” which 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.

Section 3 of the Act defines domestic violence which is reproduced as under :-

3. Definition of domestic violence – For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –

(a) harms or injures or endangers the health, safety, life limb or well-being, whether mental or physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation II.–For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

Perusal of the impugned judgment would reveal that both the court below concluded that opposite party no.2 can maintain a petition under Section 12 of the Domestic Violence Act for the relief cited in the petition. Further concluded that in view of provision of Section 26 of the Act, 2005, an aggrieved person can maintain a petition inspite of the fact that a similar proceeding is pending before any court and further on the basis of the nature of the relief provided under Section 18 to 23 of the Act provisions of Section 368 Cr.P.C. found to be not applicable.

From a perusal of the record it is established that the marriage of the revisionist with the opposite party no.2 was solemnized on 24.11.2007 and on 1.3.2008 opposite party no.2 as per allegations was ousted from the revisionist’s house. Opposite party no.2 again came to the house of the revisionist with her father on 9.7.2008 but as per the allegations they were not permitted to enter into the matrimonial house. Further allegation is that on 24.1.2010 opposite party no.2 again came to the house of the revisionist along with her father, but revisionist and his family members obstructed and as per allegation caused knife injuries to opposite party no.2 and her father, due to this incident an FIR was lodged and after investigation a final report was submitted. A protest petition was filed by opposite party no.2 which was treated as a complaint and after inquiry summoning order under Sections 498A, 323, 324, 504, 506 was passed. Further it transpires from the record that a petition under Section 12 of the Act, 2005 seeking relief of protection from domestic violence, residence orders, monetary orders, custody order and compensation order was filed by opposite party no.2. First of all I would like to emphasise that so many grounds have been argued by the learned counsel for the revisionist before this court but I found that the revisionist has not taken ground in his preliminary objection that the marriage union is not subsisting between the parties or that opposite party no.2 is not an aggrieved person or domestic relationship between the parties ceased to exist.

In Krishna Bhattacharjee Vs. Sarathi Choudhury Another, 2016 (1) JIC 649 (SC), Hon’ble Supreme Court has held that a wife cannot be ceased to be an aggrieved person despite all judicial separation and further held that retention of stridhan is a continuing offence, hence as long as it remains in custody of her husband the wife can always put forth her claim under Section 12 of the Domestic Violence Act and the application cannot be said to be barred by limitation.

It is important to mention that this is an admitted fact in this case that various petitions are still pending between the two spouses. Interim maintenance under Section 24 of the 1955 Act is passed in favour of the opposite party no.2 and further a miscellaneous petition under Section 27 of the Hindu Marriage Act is still pending between the parties.

In the case of V.D. Bhanot Vs. Savita Bhanot (2012) 2 SCC (Cri) 102, Hon’ble Apex Court in para 12 observed as under :-

“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 even 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 doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.”

In Yogesh Anantrai Bhatt and others Vs. State of Gujrat and another, 2017 Cri.L.J.615, Gujrat High Court has held as under :-

“In view of above discussion, if we scrutinize the different provisions of different sections under which some reliefs can be claimed, it becomes clear that as per section 12 of the Act, an aggrieved person is permitted to present an application to the Magistrate seeking one or more reliefs under this Act and the Magistrate shall take into consideration any domestic incident reported and received by him from the Protection officer also. Further provision of Section 12 deals with jurisdiction of the Court in passing appropriate orders for compensation, etc. whereas sub-section (3) makes it clear that every application under sub-section (1) is to be filed in a prescribed form. So practically section 12 is enabling provision to file an application, whereas sections 18 to 22 are providing for rights of the aggrieved person to seek different reliefs like protection,residence, monetary relief, custody of minor and compensation. For all such reliefs, when provisions of the Code are to be followed, then practically there is no limitation prescribed under the Code for any of such reliefs viz. protection, residence, monetary relief, custody of minor and compensation. However, when section 28 says that procedure is to be followed as per the provisions of the Criminal Procedure Code, then it amounts to dealing with an application under section 12 as an application for all such orders and nothing more than that, more particularly when section 468 of the Code is not providing limitation for any such proceedings either under the Code itself where provision for maintenance is there under section 125, if we peruse the provision of section 468 of the Code,which specifically talks about bar to take cognizance after lapse of the period of limitation. Therefore, it is quite clear and certain that cognizance of offence is to be taken and thereby when there is no incident of commission of any offence while applying under section 12 for any of the orders under sections 18 to 22 which are referred hereinabove, since there are no offences, there is no reason for taking cognizance and, therefore, there is no reason to rely upon the provisions of section 468 of the Code in case of an application under section 12 of the DV Act. To be more precise, if we peruse the provisions of section 468, then also it becomes clear that the period of limitation is referred with the period of punishment i.e. limitation would be six months, if the offence punishable with fine only; one year for the offence punishable with imprisonment for a term not exceeding one year and three years for the offence punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, when penal provision is only under section 31 of the DV Act, the provisions of section 468 of the Code would be applicable only when there is an application under section 31 of the DV Act and not otherwise. It is clear position that section 31 of the DV Act provides for imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.20,000/- or with both for breach of protection order or of an interim protection order by the respondent and, therefore, limitation would be applicable only after breach of an order in an application under section 12 and, therefore, such limitation cannot be applicable at the stage of an application under section 12 for reliefs under sections 18 to 22. Thereby, it is certain that if there is a breach of an order in an application under section 12 or any of the reliefs under sections 18 to 22 then and then only the application under section 31 is to be filed within one year from the date of such breach and not thereafter, and thereby it cannot be said that an applications under section 12 for reliefs under sections 18 to 22 are also required to be filed within a period of 12 months because in that case, when there is no penal provision,there is no reason to consider limitation at all.

Therefore, when there is no penal provision in the form of section 12 or sections 18 to 22 of the DV Act, there is no reason to restrict the aggrieved person from filing such application with reference to period of limitation prescribed under section 468 of the Code.

In view of the aforesaid legal proposition, it is crystal clear that the marriage took place on 24.11.2007. Opposite party no.2 went to her in-laws stayed there till 1.3.2008. Now according to the opposite party no.2 she had been ousted for the non-fulfilment of the illegal demand of dowry whereas according to the revisionist she being arrogant in nature left the matrimonial home by her own will. I would like to emphasise that this is a disputed fact between the parties and it can only be considered at the time of finally disposing of the petition. Certainly it requires appreciation of evidence which ought to be led during the proceeding.

At this juncture I would further like to emphasise that the scope and limit of the revisional court is very restricted. There is concurrent finding of the trial court as well as of the appellate court. Both the courts below had rejected the preliminary objection raised by the revisionist by a well reasoned and discussed order. There seems to be no patent illegality or prima facie infirmity in the order. It is observed that divorce petition is still pending, interim alimony had been granted under Section 24 of the 1955 Act and as per the legal proposition there is no bar for petition under Section 12 of the Act, 2005 for the return of stridhan. Petition under Section 27 of the Act, 1955 is also pending and the legal proposition is that there could not be a bar for a petition under Section 12 of the Act, 2005 as retention of stridhan is a continuing offence when a wife had shared a household in the past. Although the Act, 2005 is prospective, but at the same time, law laid down by the Apex Court is that even she could be entitled to be protection under the Domestic Violence Act and so far as applicability of Section 468 Cr.P.C is concerned, the provision of Section 468 as held by the Hon’ble Supreme Court comes only when any breach of the order has been committed by the respondent passed under the proceeding of Section 12 of the Domestic Violence Act and the specific provision for the offence committed under the Domestic Violence Act is an offence under Section 31 of the Act which is penalty for breach of protection order by respondent. On the basis of aforesaid legal proposition, I am of the view that the orders of the trial court as well as appellate court do not suffer from any illegality or perversity which require any interference from this court. So far as the law cited by the revisionist is concerned, in view of the aforesaid legal proposition as cited above and the fact and circumstances being the different to the present case, it is of no help to the revisionist.

Keeping all the facts and circumstances as stated above, the legal proposition as above mentioned, there is no merit in the arguments raised by the learned counsel for the revisionist. The impugned orders do not suffer from any infirmity or perversity hence do not require any interference.

Accordingly, the revision being devoid of merit is hereby dismissed.

Let a certified copy of the judgment be transmitted to the court concerned for compliance.

Order Date :- 20.12.2017

Anand/-

 

 

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