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Rajesh Kumar Chaudhari vs State Of U.P. & Another on 19 December, 2016

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 48

Case :- CRIMINAL REVISION No. – 4076 of 2016

Revisionist :- Rajesh Kumar Chaudhari

Opposite Party :- State Of U.P. Another

Counsel for Revisionist :- Ashok Nath Tripathi,Rakesh Nath Tripathi

Counsel for Opposite Party :- G.A.

Hon’ble Om Prakash-VII,J.

Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

Order dated 24.10.2016 passed by Additional Sessions Judge / Special Judge (Anti Corruption) First, Varanasi in Criminal Appeal No.111 of 2016 (Rajesh Kumar Chaudhari Versus State of U.P. another) and Order dated 10.8.2016 passed by Additional Chief Judicial Magistrate, Court No.8, Varanasi in Case No.2558 of 2012 (Sarita Versus Rajesh Chaudhari others) under Sections 12/16/19 of Protection of Women from Domestic Violence Act, 2005 are under challenge in this revision, by which Objection of the revisionist in regard to limitation has been rejected by the courts below.

Submission of the learned counsel for the revisionist is that objection raised at initial stage on behalf of the revisionist before the Magistrate concerned was illegally rejected. Cognizance in the proceedings under section 12 of the Protection of Women from Domestic Violence Act, 2005 (In Short the ‘Act’) could only be taken within a year, as has been provided under section 468 Cr.P.C. Order passed on the application moved by the revisionist before the Magistrate concerned was also challenged before the concerned Sessions Judge in the Appeal, which was also dismissed on insufficient ground. At this juncture, learned counsel for the revisionist has referred to the law laid down by the Hon’ble Supreme Court in the following cases :

1. Inderjit Singh Grewal Versus State of Punjab and Another, (2011) 12 Supreme Court Cases 588

2. Japani Sahoo Versus Chandra Sekhar Mohanty, (2007) 7 Supreme Court Cases 394

3. Sarah Mathew Versus Institute of Cardio Vascular Diseases, (2014) 2 Supreme Court Cases 62

In rebuttal, learned A.G.A. opposed the prayer made on behalf of the revisionist and submitted that objection raised by the revisionist ?respondent? was legally rejected, as the provisions of section 468 Cr.P.C. would be applicable when a breach is committed in complying the protection order passed on the application under section 12 of the Act, as has been defined under sections 31 32 of the Act. Thus, there is no illegality or impropriety in the orders passed by the courts below.

I have carefully gone through the entire record including the case laws relied upon by the learned counsel for the revisionist.

In the instant case, as is clear from the record, application under section 12 of the Act is still pending. Objection was raised on behalf of the revisionist ?respondent? on the ground that ?aggrieved party? could only file the complaint upto the month of February, 2006. Thus, the complaint filed on 20.3.2007 was beyond the limitation period and on that complaint, cognizance could not be taken in view of the provisions under section 468 Cr.P.C. The learned Magistrate concerned, while passing the order on the objection raised by the revisionist ?respondent? was of the view that provisions of section 468 Cr.P.C. come into force when any breach is caused against the order passed under section 12 of the Act and that is defined as offence under section 31 of the Act. Provision of cognizance is defined under section 32 of the Act. The appellate court was also of the same view. 

Hon’ble Supreme Court in the case of Inderjit Singh Grewal (supra), considering the law laid down in the cases of Japani Sahoo (supra) and Sarah Mathew (supra), in paragraphs no.32 33 has held as under.

?32. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Section 28 and 32 of the Act 2005 read with Rule 15 (6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida Ors., (2011) 6 SCC 508.

33. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same.?

Learned counsel appearing for the revisionist, emphasizing on the law laid down in the case of Inderjit Singh Grewal (supra), has argued that period for taking cognizance in the proceedings under section 12 of the Act is only one year.

Hon’ble Supreme Court in the case of Saraswathy Versus Babu, (2014) 3 Supreme Court Cases 712 has held as under in paragraph no.24 regarding the continuing nature of the violence committed under the Act.

?24. We are of the view that the act of the respondent-husband squarely comes within the ambit of Section 3 of the DVA Act, 2005, which defines ?domestic violence? in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the DVA Act, 2005 cannot be taken into consideration while passing an order. This is a case where the respondent-husband has not complied with the order and direction passed by the trial court and the appellate court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the appellant-wife. The appellant-wife having being harassed since 2000 is entitled for protection order and residence order under Section 18 and 19 of the DVA Act, 2005 along with the maintenance as allowed by the trial court under Section 20 (1) (d) of the DVA Act, 2005. Apart from these reliefs, she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent-husband. Therefore, in addition to the reliefs granted by the courts below, we are of the view that the appellant-wife should be compensated by the respondent-husband. Hence, the respondent is hereby directed to pay compensation and damages to the extent of Rs.5,00,000/- in favour of the appellant-wife.?

Similar situation has arisen before the Hon’ble Supreme Court in the case of Krishna Bhattacharjee Versus Sarathi Choudhury Another, (2016) 2 Supreme Court Cases 705. In this case, Hon’ble Supreme Court, while discussing the law laid down in the case of Inderjit Singh Grewal (supra), has held in paragraph 32 as under.

?32. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of ?aggrieved person? clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. ?Economic abuse? as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of ?continuing offence? gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.?

Offence committed under the Act is defined under section 31 of the Act, which is as under.

31. Penalty for breach of protection order by respondent.?

(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.

Provisions of cognizance is under section 32 of the Act, which is as under.

32. Cognizance and proof.?

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.

If the above quoted provisions of the Act are analyzed, it is clear that offence would be deemed to be committed when the revisionist – ?respondent? commits breach in complying the orders passed in the proceedings of D.V. Act and in that case provision of section 468 Cr.P.C. would be applicable. As regards the applicability of provisions of section 468 Cr.P.C. in the proceedings under section 12 of the Act is concerned, Hon’ble Supreme Court in Krishna Bhattacharjee (supra) case has clearly held in paragraph 32, as quoted above, that provisions of section 12 of the Act provide procedure for obtaining the orders of reliefs and the provisions of section 468 Cr.P.C. apply to the cases under the Act, 2005 as envisaged under sections 28 and 32 of the said Act.

Thus, in view of the law laid down by the Hon’ble Supreme Court in the case of Krishna Bhattacharjee (supra) and also in Saraswathy (supra) case, this Court is of the view that observation recorded by the courts below in the impugned orders cannot be termed to be illegal. Revisionist – “respondent” does not get any help with the law laid down in the case of Indrajeet Singh Grewal (supra) because in that case divorce decree between the parties was subsisting on the day of filing of application under section 12 of the D.V. Act. Thus, Hon’ble Supreme Court rendered the decision in that perspective. Provision of section 468 Cr.P.C. comes into picture only when any breach is committed by the ?respondent? of orders passed under the proceedings of section 12 of the Act.

In view of the aforesaid observations and on a careful perusal of the material brought on record, I do not find any illegality or infirmity in the orders impugned passed by the courts below. No ground is made out to interfere in the revision. The revision, being devoid of merits, is not liable to be admitted and allowed.

The revision lacks merit and is accordingly dismissed at this stage itself.

Order Date :- 19.12.2016

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