Delhi District Court
Presently At Of Apartment #707 vs Dr. Urshilla Chanana on 11 May, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 06/2023
IN THE MATTER OF:
Mr. Anil Chanana
S/o Late Sh. K.C. Chanana,
Permanent Resident of 36-37,
Prakriti Marg, Sultanpur, New Delhi.
Presently At of Apartment #707,
Shoreline Building No.8, Al Nabat,
Palm Jumeriah, Dubai, UAE.
............Appellant
Versus
Dr. Urshilla Chanana
W/o Mr. Anil Chanana
R/o 37 Prakriti Marg,
Sultanpur, New Delhi.
...........Respondent
Instituted on : 10.01.2023
Reserved on : 24.04.2023
Pronounced on :11.05.2023
JUDGMENT
1. Vide this judgment, I shall dispose of present criminal appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act) preferred by Anil Chanana against the order dated 11.11.2022 of Ld. MM-01 (Mahila Court), South District in Ct. Case CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 1 / 13 Digitally signed SUNIL by SUNIL GUPTA GUPTA 15:50:04 +0530 Date: 2023.05.11 No. 33555/2019 titled as "Urshila Chanana Vs. Anil Chanana" whereby his applications for dismissal of the complaint filed by respondent were dismissed.
2. Briefly stated the facts as per record are as under:-
A complaint U/s 12 of the Act was filed at the instance of the respondent against the appellant, Ms. Teena Ghai, Mr. Karan Chanana and Mr. Kunal Chanana in the year 2019. The matter was taken up by Ld. Magistrate on 17.10.2019 and after considering the submissions alongwith record and the Domestic Incident Report, notice was ordered to be issued to the appellant vide order dated 03.02.2020. The proceedings pertaining to the respondent no.2, 3 & 4 were dropped on the basis of statement of the respondent herein vide order dated 27.11.2021. During the course of proceedings, the appellant filed two separate applications for dismissal of the application/complaint filed by the respondent. After considering the submissions from both the sides alongwith material available on record, Ld. Magistrate dismissed said application vide order dated 11.11.2022. That order is being challenged in these proceedings.
3. Arguments heard from both the sides.
It has been argued by Ld. Counsel for the appellant that Ld. Trial Court has passed the impugned order without properly appreciating the facts and law applicable thereupon. It has been submitted that the complaint preferred by the respondent is abuse of process of law and same has been filed to extort money from him. It was argued that Ld. Trial Court did not follow the judgment of Hon'ble Calcutta High Court in Chaitanya Singhania & Anr. Vs. Khusboo Singhania CRR 2911/2019 on the wrong premise that same was not binding on it and that same holds only persuasive value. It was submitted that in the absence of a conflicting CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 2 / 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.05.11 15:50:12 +0530 judgment of Hon'ble Delhi High Court, Ld. Trial Court was bound to follow the judgment of Hon'ble Calcutta High Court. It was further argued that Ld. Trial Court failed to properly appreciate the judgment of Hon'ble Apex Court in Kunappareddy @ Nookala Shanka Balaji Vs. Kuappareddy Swarna Kumari & Anr. (2016) 11 SCC 774 and the judgment of Hon'ble Bombay High Court in Nandkishor Pralhad Vyawahare Vs. Mangala 2018 SCC Online Bom 923. It was argued that the applications moved by him for dismissal of application U/s 12 of the Act filed by respondent was maintainable as the proceedings before Ld. Trial Court are governed by CPC and for that reason only, the application moved on behalf of respondent for production of documents under Order XI Rule 12 and 14 CPC was entertained and disposed of on merits. It was submitted that the appellant was residing separately from the respondent since the year 2006 so there was no domestic relationship between them hence the complaint was not maintainable. It was further submitted that the complaint in question does not disclose any act or omission which may amount to domestic violence. Also, the complaint is suffering from extraordinary delay as same has been filed after around 48 years of marriage. Further, appellant was maintaining the respondent and was paying Rs. 6.75 lacs per month to her which includes sum of Rs. 4 lacs which was being directly credited into her bank account. She is residing in a 5 acre farm house at 36-37, Prakriti Marg, Sultanpur, New Delhi. He has prayed that the impugned order may be set aside and the complaint preferred by the respondent may be dismissed.
4. Per contra, it has been argued by Ld. Counsel for the respondent that there is no illegality in the impugned order. He has prayed for dismissal of the appeal.
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Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.11
15:50:21
+0530
5. I have considered the submissions from both the sides alongwith record.
Relevant portion of impugned order is being reproduced below for ready reference:-
" The present forum is inclined to follow the ratio as laid down in judgment of Kunappareddy (supra) as well as Hon'ble Bombay High Court judgment which has elaborated the ratio of judgment of Kunappareddy (supra) stating that even though the proceeding and relief in DV act are civil in nature but the procedure is to be adopted are of Cr.P.C.
It is kept in mind that this court is a criminal court and cannot review its own order. The order of summoning could have been challenged before the appellate court within the prescribed time, however, the same has not been done.
The only way which has been provided in the Act whereby this court can revoke or modify its own order is that if there is a 'change of circumstance' as has been provided in section 25 of the Act. Nothing of such sort has been submitted before the court that since the time when the summoning order was passed and this application was moved, there has been a change of circumstances which has necessitated a revocation of the order passed. Since there is not change of circumstances which has been prayed on behalf of the application/respondents, this court cannot revoke or modify its own order.
All the contentions and issued raised by way of the applications moved by the respondent anyhow pertain to the merits of the case which can only be adjudicated at the juncture of trial when the evidence is led and cannot be heard at this stage as aggrieved has raised various allegations of domestic violence which can only be determined at the stage of trial.
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2023.05.11 15:50:28 +0530 In view of the reasons discussed above, both the applications for dismissal moved on behalf of respondent no.1 are disposed of as dismissed."
6. Before considering the arguments of Ld. Counsel for the appellant on merits, it will be appropriate first to decide as to whether the applications moved on behalf of appellant for dismissal of application U/s 12 of the Act filed by the respondent were maintainable or not. As per Ld. Counsel for appellant, those applications were maintainable in view of judgment of Hon'ble Calcutta High Court in Chaitanya Singhania & Anr. Vs. Khusboo Singhania CRR 2911/2019 and that dismissal of his applications after relying upon the judgments in Kunappareddy @ Nookala Shanka Balaji Vs. Kuappareddy Swarna Kumari & Anr. (2016) 11 SCC 774 and Nandkishor Pralhad Vyawahare Vs. Mangala 2018 SCC Online Bom 923 was not proper.
7. In Chaitanya Singhania & Anr. (Supra), the question before Hon'ble High Court was as to whether an order passed by Ld. Magistrate in a proceeding U/s 12 r/w Section 23 of the Act on the point of maintainability can be quashed U/s 482 Cr.P.C. After discussion, Hon'ble High Court (Single Bench) answered the said question in affirmative and held as under:-
"(i) Respondent(s) can challenge maintainability of an application under Section 12 of the said Act filed by the aggrieved person before the Court of the learned Magistrate immediately after appearance in the proceeding by filing appropriate petition.
(ii) The Learned Magistrate shall dispose of such application challenging maintainability pf the proceeding under Section of the said Act after giving the opportunity of being heard to the CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 5 / 13 Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.05.11 15:50:40 +0530 aggrieved person. An aggrieved party may file an appeal under Section 23 of the said Act against the order passed by the learned Magistrate under the provision of Section 29 of the said Act before the learned sessions judge."
8. Ld. Trial Court in the impugned order held that said judgment was having only persuasive value upon the Court and same was not a binding precedent. In the subsequent portion of the order, Ld. Magistrate did not follow the ratio as laid down in said judgment. It was argued by Ld. Counsel for the appellant that Hon'ble Delhi High Court is not having any judgment holding a contrary view on this point, so Ld. Trial Court was bound to follow the judgment of Hon'ble Calcutta High Court in Chaitanya Singhania & Anr. (Supra). Ld. Counsel has failed to cite any provision in law or judgment or any other reasoning in support of said legal proposition that in case, parent High Court of a District Court is not having any judgment on a particular law point holding a contrary view than the view taken by another Hon'ble High Court, then the District Court was bound by said judgment of another High Court. The correct legal position in this regard seems to have been enunciated by Hon'ble Bombay High Court in Commissioner of Income Tax Vs. Thana Electricity Supply Ltd. 1994 206 ITR 727 Bom. In that case, during hearing of a reference U/s 256 (1) of the Income Tax Act, 1961 from Income Tax Appellate Tribunal, an argument was made before Hon'ble High Court to the effect that similar controversy had been resolved by Hon'ble Calcutta High Court in CIT Vs. Tinnevelly Tuticorin Tea Investment Co. Ltd. (1989) 179 ITR 550 and there being no decision of any other High Court to the contrary, so same was binding on that Court. While dealing with said arguments, Hon'ble High Court held as under:- Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.05.11 15:50:51 +0530 CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 6 / 13 "21. From the foregoing discussion, the following propositions emerge :
(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein.
(b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.
(c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows :
(i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision.
Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India v. Yadav Engineer and Contractor, ).
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2023.05.11 15:51:08 +0530
(ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench.
(iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred it reached after full consideration of the earlier decisions.
(d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect.
By no amount of stretching of the doctrine of stare decisis, can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Tribunal within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be the conclusion, the decisions cannot have the force of binding precedent on other High Courts or on any subordinate courts or Tribunals within CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 8 / 13 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2023.05.11 15:51:17 +0530 their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all courts in the country by virtue of article 141 of the Constitution."
(Emphasis supplied)
9. Considering the above judgment of Hon'ble Bombay High Court, this Court is of the view that Ld. Trial Court was correct in holding that the judgment of Hon'ble Calcutta High Court in Chaitanya Singhania & Anr. (Supra) was not a binding precedent on it.
10. Another argument of Ld. Counsel for appellant is that no reason has been given by Ld. Trial Court for not following the judgment of Hon'ble Calcutta High Court in Chaitanya Singhania & Anr. (Supra) and that the judgments in Kunappareddy @ Nookala Shanka Balaji (Supra) and Nandkishor Pralhad Vyawahare (Supra) were not properly appreciated in the present factual context.
11. In Kunappareddy @ Nookala Shanka Balaji (Supra), the question before Hon'ble Apex Court was as to whether a Court dealing with the petition/complaint filed under the Act has power to allow amendment to the petition/complaint originally filed. After discussion, Hon'ble Apex Court answered the question in affirmative and held as under:-
"17. What we are emphasising is that even in criminal cased governed by the Code, the court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 9 / 13 Digitally signed SUNIL by SUNIL GUPTA GUPTA 2023.05.11 Date:
15:51:25 +0530 therefore, that there is no power of amendment has to be negated.
18. In this context, provisions of sub-section (2) of Section 28 of the DV Act gain significance.
Whereas proceedings under certain sections of the DV Act as specified in sub-section (1) of Section 28 are to be governed by the Code, the legislature at the same time incorporated the provisions like sub-section (2) as well which empowers the court to lay down its own procedure for disposal of the application under Section 12 or Section 23 (2) of the DV Act. This provision has been incorporated by the legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and ex parte orders and sub-section (2) of Section 23 is a special provision carved out in this behalf which is as follows:
"23.(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing,or has committed an act or domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent."
19. The reliefs that can be granted by the final order or by an interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 10 / 13 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.05.11 15:51:33 +0530 amend the complaint/application, etc. is not read into the aforesaid provision, the very purpose which the Act attempts to subserve itself may be defeated in many cases."
12. Perusal of aforementioned judgment of Hon'ble Apex Court clearly shows that Hon'ble Apex Court was of the view that the proceedings under the Act shall be governed by the provisions of Cr.P.C. Said judgment was referred to by Hon'ble Bombay High Court in Nandkishor Pralhad Vyawahare (Supra). In that case, Full Bench of Hon'ble Bombay High Court was dealing with a reference made by Hon'ble Single Bench containing following questions:-
"a. Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings?
b. Whether or not the High Court can exercise its powers under section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005?"
12.1 After discussing the relevant provisions and several judgments, Hon'ble High Court answered both the questions in affirmative. In the course of judgment, it was held as under:-
" 59. Now, one incidental question would arise as to from what stage the provisions of the Criminal Procedure Code would become applicable and in our view, the answer could be found out from the provisions of sections 12 and 13 of the D.V. Act. A combined reading of these provisions shows that the commencement of the proceedings would taken place the moment, the Magistrate applies his mind to the contents of the application and passes any judicial order including that of issuance of notice. Once, the proceeding commences, the procedure under section 28 of the CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 11 / 13 SUNIL Digitally signed by SUNIL GUPTA Date: 2023.05.11 GUPTA 15:51:40 +0530 D.V. Act, subject to the exceptions provided in the Act and the rules framed therefore, would apply. In the other words, save as otherwise provided in the D.V. Act and the rules framed thereunder and subject to the provisions of sub-section (2) of section 28, the provisions of the Criminal Procedure Code shall govern the proceedings under sections 12 to 23 and also those relating to an offence under section 31 of the D.V. Act on their commencement."
13. So it can be safely said that although the reliefs available to an aggrieved under the Act are civil in nature however, that does not mean that all the provisions of CPC shall be applicable thereupon, instead the proceedings are to be governed by the provisions as contained in Cr.P.C and admittedly, there is no provision in it for moving an application for dismissal of a complaint after passing of summoning order.
14. As far as the argument of Ld. Counsel for appellant to the effect that the application Under Order XI Rule 12 and 14 moved by the respondent was dealt with on merits by Ld. Trial Court meaning thereby that CPC was applicable in the proceedings under the Act is concerned, it is to be seen that moving such an application is permissible in view of judgment Hon'ble Apex Court in Rajnesh Vs. Neha Crl. Appeal No. 730/2020 in which one of the guidelines framed in exercise of powers under Article 136 Read with Article 142 of The Constitution of India was to the following effect:-
"(f) If there is any dispute with respect to the declaration in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC;CA No. 06/2023 Anil Chanana Vs. Urshila Chanana Page 12 / 13 Digitally signed
SUNIL by SUNIL GUPTA GUPTA Date:
2023.05.11 15:51:48 +0530 On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so;
The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned."
15. Considering the above discussion, this Court is of the view that the applications filed on behalf of appellant for dismissal of application U/s 12 of the Act moved by the respondent were not maintainable in law and same were rightly so dismissed by Ld. Trial Court. In view of said conclusion arrived at by this Court, there is no requirement of dealing with the grounds as mentioned in those applications on merits.
Appeal stands dismissed in above terms.
Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
2023.05.11
15:52:01 +0530
Announced in the open (Sunil Gupta)
Court on 11th May, 2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
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