Madhya Pradesh High Court
Ashish Gupta vs Smt. Nidhi Gupta on 6 March, 2017
Author: J.K. Maheshwari
Bench: J.K. Maheshwari
HIGH COURT OF MADHYA PRADESH : JABALPUR.
SINGLE BENCH
(BEFORE JUSTICE J.K. MAHESHWARI)
M.Cr.C. No. 3738/2015
Ashish Gupta and others
Vs.
Smt. Nidhi Gupta
For petitioners: Shri Vijay Nayak, Advocate
For Respondent: Shri Manish Datt, Sr. Advocate with
Shri Pawan Gujar, Advocate.
ORDER
(06/03/2017) This petition under Section 482 of the Code of Criminal Procedure (hereinafter after referred to as 'Cr.P.C.') has been filed seeking quashment of the application filed by the respondent as Annexure A/1 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Domestic Violence Act).
2. On perusal of the facts, the respondent/complainant filed the application under Section 12 of the Domestic Violence Act seeking prayer to pass an order under Sections 18, 19, 20 and 21. On filing the said complaint, the court has taken cognizance and summoned the petitioners. Though the order of summoning has not been filed, but across the Bar the said fact has not been disputed by the learned counsel appearing on behalf of the parties.
3. Learned counsel for the petitioner contends that on filing of the complaint, and taking the cognizance by the court on the application filed by the aggrieved person, the domestic incident report of the Protection Officer or Service Provider is essentially required to call for and consider. It is urged that as per Rule 2(b) of the Protection of 2 Women from Domestic Violence Rules, 2006 (hereinafter referred to as 'Rules of 2006') the word 'complaint' has been defined, which is to be made to the Protection Officer by the aggrieved person, however, in absence of report cognizance cannot be taken by the Magistrate on the application filed by the aggrieved person. Counsel contends that the petition under Section 482 of Cr.P.C. is maintainable as held by this Court in the case of Smt. Meenakshi Jatav & others v. Dr. (Smt.) Seema Sehar & Another reported in 2013(2) MPHT 116. It is the further contention that the legislative intent to bring the Domestic Violence Act for filing the application to the Magistrate and of taking cognizance is required to be seen in entirety. Looking to the definition of the complaint in Section 2(b) of the Rules of 2006 without moving an application to the Protection Officer making allegations either oral or in writing and without having any report of the domestic incident by the Protection Officer or by the Service Provider the application, is not tenable. In fact the marriage took place on 28.11.2013 and the respondent after residing for eight days, on 7.12.2013 visited to Chaina alongwith her husband. She came back on 20.2.2014 and filed the complaint on 8.1.2015 without submitting the complaint in this regard either to the Protection Officer or to the police authorities making allegations of demand of dowry, cruelty and harassment. In absence thereto, all the allegations, as alleged are based on after thought. It is further urged that without having any specific pleading that complainant resided in a shared household, as per definition of 'respondent' in Section 2(q) joining of all the petitioners is unjustified. It is further urged that respondents No. 5 to 8 are residing in village Modha district Hamirpur, Kalyanpur district Kanpur Shivrajpur, district Kanpur (UP), however, they cannot be treated to be the residents of the shared household wherein the wife resided after marriage. In such circumstances, the complaint filed against respondents No. 3 5 to 8 who are residing separately is liable to be quashed. It is also contended that after having the dispute between husband and wife, a Samjhota Patra was executed by both the parties and thereafter filing of this complaint is amounting to abuse of process of the court, therefore, it is liable to be quashed.
4. On the other hand, learned counsel representing the respondent/wife referring various paragraphs of the complaint has specifically stated that looking to all the allegations it is apparent that specific allegations of domestic violence as specified in Section 2(g) and 3 of the Act of 2005 are available in the complaint including demand of dowry and cruelty immediately after the marriage during the period 28.11.2013 to 7.12.2013 or after coming back from Chaina while residing for about two months with in-laws as reveal from the allegation made in paragraph 11 onwards of the complaint. During stay at Chaina, the specific act of the husband has also been specified, however, looking to those allegations, if the Magistrate has taken the cognizance on an application under Section 12 of the Domestic Violence Act in the facts of the case, the jurisdiction under Section 482 of the Cr.P.C. may not be exercised by this Court. It is submitted, the scope of Section 12 of the Act of 2005 has been considered by this Court in the case of Ravi Kumar Bajpai & another vs. Smt. Renu Awasthy - M.Cr.C. No. 14047/2013 decided on 16.9.2015 in that case after considering judgments of the various High Court it is concluded that receiving of the report from the Protection Officer prior to taking the cognizance is not necessary. The court may take cognizance of the facts as averred in the application and in case the report has been received, it may be taken into consideration. However, in such circumstances, the arguments as advanced by learned counsel for the petitioners is devoid of any merit, therefore, the petition may be dismissed.
5. After hearing learned counsel for the parties, first of all it is 4 to be noted here that as per Section 12 of the Act of 2005 an application may be submitted by an aggrieved person or Protection Officer or any other person on behalf of the aggrieved person to seek one or more relief under the provisions of the Domestic Violence Act. As per Proviso, the Magistrate before passing the order on such application shall take into consideration any domestic incident report received by him either from the Protection Officer or from the service provider. Meaning thereby, if any report is received by the Magistrate, consideration thereof is mandatory. But it is not necessary to call for the report if it has not been received from the Protection Officer or from the service provider regarding domestic violence and without having the report cognizance can be taken by him. It is to be held here that once the option is available to file an application before the Magistrate by the aggrieved person, it would not lead to a consequence that cognizance by the Magistrate can only be taken after the report of the Protection Officer. The arguments advanced referring Section 2(b) of the Rules of 2006 which defines the 'complaint' is of no relevance, because in Section 12 of the Domestic Violence Act the complaint is not required to be filed, and in fact an application is supposed to be submitted to the Magistrate. While as per Rule 2(b) if any allegation is alleged against any person either oral or in writing of a domestic violence, it may be reported to the Protection Officer, which may be a complaint. In case such oral or written allegations are not made by the aggrieved person to the Protection Officer, even the Magistrate may take cognizance and his jurisdiction to entertain it is not ousted. Therefore, the argument as advanced by the learned counsel appearing on behalf of the petitioner is merit-less and is hereby repelled. The aforesaid view fortifies from the judgment of this Court in the case of Ravi Kumar (supra).
6. Now it is to be examined that when an application can be 5 submitted by an aggrieved person to the Magistrate. As per the provision of law any application may be filed regarding domestic incident by the aggrieved person to the Magistrate. The domestic incident has been defined in Section 2(e) of the Act of 2005 whereby a report made in a prescribed form on receipt of a complaint of domestic violence from an aggrieved person by Protection Officer. The reference of domestic incident is made in Proviso to Section 12 because it is to be submitted by the Protection Officer to the Court. Therefore, in Rule 2(b) the word 'complaint' has been referred which is not defined in the definition clause of the Act of 2005. The domestic violence has been defined in Section 2(g) which emphasizes in reference to the Section 3 of the Act. As per Section 3 it is clear that any omission or commission or conduct of the respondent shall constitute domestic violence. It includes harms, injures, endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. It also includes harassment, harms, injures or endangers the aggrieved person with a view to coerce her by any other person related to her to meet any unlawful demand for any dowry or other property or valuable security. It also includes even threatening with respect to the things as specified hereinabove or otherwise any injury or it may cause hard whether physical or mental to the aggrieved person would also include. By the explanation, what would include within physical abuse, Sexual abuse, Verbal and emotional abuse and economic abuse have also been specified. Meaning thereby it is having the exhaustive implication to the allegations which may give rise to take cognizance to a court on an application filed by aggrieved person.
7. Section 2(s) defines 'shared household' whereby it is apparent that a household where the person aggrieved lives or at 6 any stage has lived in a domestic relationship either singly or along with 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 of them in respect of 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. Looking to the said definition, it requires to understand that who would be in the domestic relation. Which 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. However, in the context of the spirit of the Act and looking to the discussion made herein above, with regard to the domestic incident report, domestic relationship, domestic violence, shared household, complaint and who may file an application under Section 12 of the Act of 2005, the facts of the present case as alleged in the private complaint is required to be taken note of.
8. On perusal of the private complaint, it is apparent that marriage was solemnized on 28.11.2013 and after the marriage complainant resided in a house alongwith all the respondents for about seven days and immediately after the marriage the demand of dowry, cruelty was made which is apparent from paragraphs 1 to 5 of the complaint. Thereafter on 7.12.2013 on the guise of assurance by the parents of the respondent to fulfill the demand she was allowed to visit at Chaina alongwith husband where she stayed for about two and a half month. During that period the allegations of cruelty, mental and physical harassment are levelled 7 in paragraphs 8,9 and 10. It has also been alleged that under what circumstance the complainant could come back from the Chaina. After coming back, she resided in the house of the parents-in-law where all the respondents were there and she was dealt with by mental, physical cruelty with demand which is explained in paras 11, 12 and 13. It is also the fact, that FIR was lodged by her for an offence under Section 498A of the IPC wherein the charge sheet has been submitted. The said FIR was challenged on filing M.Cr.C. No. 1697/2015 by the petitioners, which was also dismissed on 1.5.2015. However, looking to all these facts, in my considered opinion, the court has rightly taken the cognizance and the documents filed in defence of lodging the FIR against the respondent or of compromise or of other affidavit which is part of this complaint cannot be a ground to quash the private complaint filed under Section 12 of the Act of 2005.
9. At this stage it is required to explain that in case this Court is of the opinion looking to the averments made in the private complaint, prima facie commission of the offence establishes the invocation of powers under Section 482 of Cr.P.C. is not warranted. The power under Section 482 of Cr.P.C. can be exercised by the court where the High Court is satisfied that for giving effect to any order under the provisions of this Code or to prevent abuse of process of any court or otherwise to secure the ends of justice interference may be made. After going through the allegations of the complaint and the fact that for demand of dowry, cruelty and harassment regestering an offence under Section 498A of IPC, quashment was sought before this Court. Which was also declined by this Court. The case of maintenance is also pending, however in my considered opinion, it is not a fit case wherein the power under Section 482 of Cr.P.C. ought to be exercised.
10. At this stage, the argument advance by the learned counsel 8 for the petitioner to quash the complaint with respect to petitioners No. 5 to 8 is also required to be dealt with. On perusal of the allegations as alleged in paragraphs 3,4,5,11,12 and 13 of the complaint their act of cruelty, harassment and demand has been alleged whereupon the court has taken cognizance. In my considered opinion the order passed by the court summoning the respondents is not contrary to any of the provisions of law as described hereinabove. Therefore the complaint against respondents No. 5 to 8 also cannot be quashed.
11. Accordingly, this petition is devoid of any merit, hence, dismissed. The trial court is directed to decide the complaint as early as possible not later than six months from the date of production of certified copy of this order. It is made clear here the observations if any made above is only with respect to quashing of the private complaint exercising the powers under Section 482 of Cr.P.C.. However, the trial court shall not be influenced by these observations while deciding the case on merit.
(J.K. Maheshwari) Judge shukla