Gujarat High Court
Fulchand Motiram Yadav & vs State Of Gujarat & on 7 August, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/11471/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11471 of 2014
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FULCHAND MOTIRAM YADAV & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HEMANT K MAKWANA, ADVOCATE for the Petitioner(s) No. 1 - 2
MS. MEGHA CHITALIYA, AGP for the Respondent(s) No. 1
MS SUNEETA R SHUKLA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 07/08/2015
ORAL ORDER
Heard learned advocate Mr. Hemant Makwana for the petitioners, learned advocate Ms. Suneet Shukla for the respondent No. 2 and learned Assistant Government Pleader Ms. Megha Chitaliya for respondent No.1.
2. By filling present petition under Article 226 of the Constitution, the petitioners sought for a writ of certiorari, and has prayed to set aside the order dated 17.7.2014 below Exh. 89 passed by learned Chief Judicial Magistrate, Dahod, in Criminal Misc. Application No. 255 of 2010. The said are the proceedings instituted by respondent No.2- wife under the provisions of Protection of Women from Domestic Violence Act, 2005. The impugned order arises out of application filed under section 12 of the Domestic Violence Act.
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3. Section 29 of the Domestic Violence Act provides for an Appeal. It says that there shall lie an appeal to the Court of Session from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be. The jurisdiction of the Magistrate before whom various reliefs can be claimed, is contemplated under section 27 of the Act. The Magistrate is defined under section 2 (i) and means Judicial Magistrate of First Class, or as the case may be, the Metropolitan Magistrate exercising jurisdiction under the Code of Criminal Procedure, 1973. As per section 28 of the Domestic Violence Act, all proceedings under sections 12, 18, 19, 20, 21, 22, and 23 and offences under section 31 are governed under the provisions of Criminal Procedure Code, 1973.
3.1 In judgment dated 27th July, 2015 in Rameshbhai Ramajibhai Desai vs. State of Gujarat & 1 others being Special Civil Application No. 15687 of 2014, this court has taken a view that the Magistrate or the Metropolitan Magistrate, as the case may be, deriving jurisdiction to entertain application under section 12 of Domestic Violence Act as well as the Court of Session before whom an appeal is provided under section 29, are the criminal courts mentioned under section 6 of Cr. P.C., 1973. It is held that the order of the Court of Session passed in Appeal under section 29 is revisable under section 397(1) read with section 401 of the Criminal Procedure Code. In other words, the Court of Magistrate and the Court of Session under the Domestic Violence Act exercising their respective powers and jurisdiction under the Act, are the criminal courts in their hierarchy under the Code of Criminal Procedure.
3.2 The analogy of principle that the order in appeal by Court of Session is revisable under the provisions of the Cr. P. C. applies to the orders passed by the Magistrate. Therefore, alternative remedy is available for filing an appeal under section 29 of the Act against the impugned order below Exh. 89 passed by the learned Judicial Magistrate. Learned advocate for the petitioner wanted to contend that the order does not fall within the scope of section 29. The contention cannot be countenanced. There is nothing to suggest against the amenability of the impugned order to the Court of Session.
4. Learned advocate for the petitioner relied on the decision of the Chattisgarh High Court in Vishal Jindal and others v. Puja Jindal and another reported in 2014 CRI.L.J. 4697 to submit that order impugned herein is one of interlocutory in nature not deciding rights of any of the parties. Therefore, the same same could not be subjected to appeal under section 29. The language of section 29 does not suggest that the order referred to thereunder is confined to final order only and that interim order cannot be subjected to appeal.
5. Therefore, this court is not inclined to exercise jurisdiction under Article 226 of the Constitution. A remedy of appeal under Page 2 of 3 HC-NIC Page 2 of 3 Created On Mon Sep 07 06:09:29 IST 2015 C/SCA/11471/2014 ORDER section 29 is available. On the said ground alone, this petition is not entertained and dismissed. Notice is discharged, Interim relief, if any, stands discharged.
6. At this stage learned advocate stated that in view of what is held hereinabove, the petitioner would avail the remedy of Appeal. He, however, requested that since the petitioner wishes to avail the alternative remedy, the interim relief which is operating, may be allowed to continue for a period of two weeks from today.
7. The interim relief which was earlier granted in respect of the petitioners, shall continue to operate for a period of two weeks from today.
(N.V.ANJARIA, J.) cmjoshi Note :
As per the order dated 4.9.2015 passed by the court upon a 'Note for Speaking to Minutes', this order was recalled today for the limited purpose, and the date of the order was substituted and corrected from 6.8.2015 to 7.8.2015 Page 3 of 3 HC-NIC Page 3 of 3 Created On Mon Sep 07 06:09:29 IST 2015