Karnataka High Court
Mr. Vijay R Rao vs Smt. Girija Patel on 17 July, 2014
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CRL.RP.65/2014
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL REVISION PETITION No.65/2014
BETWEEN:
MR. VIJAY.R.RAO,
S/O SRI R.RAGHAVENDRA RAO,
AGED 41 YEARS,
R/A NO.69, LA CROSS DRIVE,
MORGAN HILL,
CALIFORNIA-97037.
REPRESENTED BY HIS
P.A.HOLDER,
MR.R.RAGHAVENDRA RAO,
SON OF LATE R.NERMAKAL RAO,
AGED 74 YEARS,
R/A NO.379, 42ND CROSS,
5TH BLOCK, JAYANAGAR,
BANGALORE-560 041.
PRESENTLY R/A C-I 502,
SJR LUXURIA,
KOTHANUR CROSS,
OFF BANNERGHATTA ROAD,
IIMB POST,
BANGALORE- 560 076. ... PETITIONER
(BY SMT ANNAPURNA BEVANJE, ADV.)
AND:
SMT GIRIJA PATEL,
W/O MR.VIJAY.R.RAO,
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CRL.RP.65/2014
AGED 41 YEARS,
R/A NO.57, P & T COLONY,
2ND CROSS, R.T.NAGAR,
2ND BLOCK,
BANGALORE-560 032. ... RESPONDENT
(BY SRI M.V.V.RAMANA, ADV.)
THIS CRL.RP FILED U/S.397 & 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 23.12.2013 PASSED BY
THE XV ADDL. CITY CIVIL AND S.J., BANGALORE CITY
IN CHARGE OF F.T.C.-I, BANGALORE IN
CRL.A.NO.508/2012 VIDE ANNEXURE-A AND ALLOW
CRL.A.NO.508/2012.
THIS CRL.RP COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
O R D E R
The petitioner has approached this Court in revision challenging the order of Metropolitan Magistrate passed in Crl.Misc.No.28/2012 and confirmed in Crl.A.508/2012 by the Fast Track Court, Bangalore City.
2. The facts reveal that the petitioner herein is the husband of the respondent. The marriage is said to have been solemnized on 25.11.1999 in Bangalore. They lived together for -3- CRL.RP.65/2014 some time and through the wedlock, they have a female child. A dispute arose between them and therefore, the respondent approached the trial Court in Crl.Misc.No.28/2012 with a petition under Section 12 of the Protection of Women from Domestic Violence Act (herein after called as 'the Act' for short) seeking relief under Sections 18 and 21 of the said Act. The notice for the petitioner herein was sent by the trial Court. Later the petitioner herein who is the respondent in the trial Court was placed ex-parte. In the circumstances, the respondent was examined as PW.1 and in her evidence, the documents Exs.P1 to P4 were marked. The trial Court allowed the petition filed under Section 12 of the Act restraining the petitioner from causing the domestic violence and a direction to hand over the child-Ananya.P.Rao to the interim custody of the respondent. Aggrieved by the order of the learned Metropolitan Magistrate, the petitioner herein approached the Fast Track Court -4- CRL.RP.65/2014 in Crl.A.508/2012. Vide judgment and order dated 23.12.2013, the appeal came to be dismissed affirming the order of the learned Metropolitan Magistrate. Aggrieved by the orders of the Courts below, the present revision petition is filed.
3. During the pendency of this revision petition, as many as four applications have been filed i.e., I.A.Nos.2 to 5 of 2014 seeking interim stay, direction and also permission to produce the documents.
4. In the aforesaid circumstances, I have heard the learned counsel for both the parties.
5. It is the contention of the learned counsel for the petitioner that the trial Court had committed an error in placing the petitioner ex-parte. She submits that the notice was not served upon the petitioner as contemplated under the provision of the Act and Rules and therefore it is her contention that the petitioner did not have -5- CRL.RP.65/2014 an opportunity to defend his case by putting his appearance before the trial Court. Hence, she submits that the impugned orders are both erroneous and illegal.
6. On the other hand, learned counsel for the respondent submits that the aforesaid Act is a special enactment to enable the persons to claim the relief whenever there is a domestic violence and as the provision of Section 13 of the Act and Rule 12 provide numerous means of service of notice, the notice was served in pursuance of the said provision. He submits that the father who was in charge of the house on the date when notice was attempted to be served, refused the same and therefore, the trial Court was justified in placing him ex-parte. Hence, he submits that there is no error or illegality in placing the respondent/petitioner herein ex-parte and passing the impugned order.
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7. Adverting to the provision of the Section 13 of the Act, the relevant portion is extracted herein under for the sake of convenience:
13. Service of notice: (1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt (Emphasis supplied).
8. Under the aforesaid provision, the Magistrate has to issue a direction to the Protection Officer to serve the notice by such means as which prescribed on the respondent and on any other person as directed by the Magistrate within a maximum period of two days or such other reasonable time as may be allowed by the Magistrate. In this regard, a special provision has been made under Rule 12 (2) (a) and (b) and the -7- CRL.RP.65/2014 said Rule is extracted herein under for the sake of convenience:
"Section: 12 (a) The notices in respect of the proceedings under the Act shall be served by the Protection Officer or any other person directed by him to serve the notice, on behalf of the Protection Officer, at the address where the respondent is stated to be ordinarily residing in India by the complainant or aggrieved person or where the respondent is stated to be gainfully employed by the complainant or aggrieved person, as the case may be.
(b) The notice shall be delivered to any person in charge of such place at the moment and in case of such delivery not being possible it shall be pasted at a conspicuous place on the premises."
9. Section 12 (2) (a) refers to service of notice to the respondent to the address in which he is ordinarily residing and Section 12 (2) (b) relates to his service of notice to any person in charge of such place at the moment and in case, if -8- CRL.RP.65/2014 such delivery is not possible, a provision has been made to affix the copy of the notice to the conspicuous place on the premises. Virtually, Clause (b) is the provision by way of substituted service to the respondent whenever, the service is not possible. Perusal of the aforesaid two provisions would reveal that an attempt has to be made to serve the notice at the address to the respondent to whom the notice is addressed and for any reasons, if it is not possible, then to adopt the procedure of substituted service provided under Section 12(2)(b) of the Rules.
11. In the context of the aforesaid provisions, if the records of the trial Court are perused, on 01.02.2012, the Court ordered to serve the notice to the respondent through the Protection Officer and the matter posted to 04.02.2012 and the notice did not return on the said date and therefore, it came to be adjourned to 14.02.2012. Perusal of the order sheet reveals that the -9- CRL.RP.65/2014 Protection Officer has filed his report and the learned Magistrate has passed an order to the following effect"
"Protection Officer filed report stating that the respondent has refused the notice issued. Service is held sufficient. Respondent called out. The matter was adjourned for appearance of the respondent on 21.02.2012"
12. The aforesaid fact reveals that the Magistrate was under the impression that the respondent has refused the notice. But perusal of the report which has been filed by the Protection Officer would indicate that the notice was not refused by the respondent but it was refused by his father who was in charge of the premises as on the date. The report would reveal that the respondent was not in the house at the time when the officer went for service of notice. The report further reveals that the father was not ready to accept the notice without permission of his son. As he refused -10- CRL.RP.65/2014 to receive it, the report to that effect was submitted by the Messenger to the Protection Officer. The protection Officer inturn submitted the report to the Court.
13. Perusal of the aforesaid report and the order of the learned Magistrate would reveal that the service is not in accordance with law. Clause
(a) of Rule 12(2) require the notice upon the respondent. The respondent had not refused the notice and the contents of the order sheet is contrary to what is found in the report. Learned Magistrate was under the impression that it is the respondent who refused the notice. Therefore, learned Magistrate placed the respondent as ex- parte on the next date. Now Clause (b) of Rule 12 (2) is an ancillary provision for service of notice, in case if it is not possible to serve the notice as per the Clause (a). Under the aforesaid provisions, service can be done to the person in charge of such place at the moment and what further -11- CRL.RP.65/2014 it is provided is that if such delivery is not possible, it shall be pasted at a conspicuous place on the premises. In my opinion, the inference to be drawn from the aforesaid provision would be that in case if for any reason, the service is not possible, the messenger has to affix the copy to the conspicuous place of the premises and the word "being delivery not possible" includes the refusal of notice by the person in charge of the premises. So when the father who was in charge of the premises, refused the notice, it was the duty of the messenger to affix the copy and submit a report to that effect.
14. Anyhow, clause (a) would be applicable only in a case when the Court makes an effort to serve a notice to the respondent and if it is not possible to do so, then it is to have recourse to clause-(b). At this juncture, it is necessary to look into the provision of Section 13 of the Act. It provides that the Magistrate has to give a -12- CRL.RP.65/2014 direction to the Protection Officer to get the notice served by such means prescribed on the respondent to mean to the party who is respondent in the case and it does not apply to the persons who are in the premises. The notice to persons in the premises will only at the time when the notice to the party is not served.
15. The, learned counsel for the respondent has placed reliance to the decision of the Apex Court reported in "1976 AIR 869" and another unreported judgment in "Crl.A.No.767/2007 dated 18.05.2007".
The decision at serial No.1 relates to the notice which was sent to the tenant under the provision of Section 106 of the Transfer of Property Act. Whereas another decision refers the notice under Section 138 of the NI Act sent through registered post. The Apex Court in the aforesaid judgment has held that whenever, a notice is sent through the registered post and parties refuseS the -13- CRL.RP.65/2014 said notice or it is returned as 'not claimed or refused', there is presumption in law that the party has refused to receive the notice and it indicates service of notice as contemplated. Aforesaid decisions do not apply to the facts on hand as there is specific provision relating to service of notice to the parties under Section 13 of the Act and Rule 12 (2) (a) and (b). That apart, the aforesaid principle applies to refusal of notice by the parties to whom it is addressed and not with regard to the refusal of the notice by other members of the family. Hence, I am of the opinion that the service of notice to the respondent was not in accordance with law either under Section 13 or Rule 12(2) of the Rules.
16. When there is no notice to the party and if the Court erroneously placed him ex-parte, ultimately, the order has to be held erroneous and illegality. There is no reason for the trial Court to place him ex-parte and the First Appellate Court -14- CRL.RP.65/2014 without taking into consideration affirmed the order of the trial Court.
17. Furthermore, in this revision petition, an application has been filed in I.A.5/2014 seeking permission to produce certain documents. It is the contention of the petitioner that as on the date the petition came to be filed before the trial Court, he was not in the country and he had been to California and to endorse the said facts, the petitioner has produced passport, visa and also boarding pass. On perusal of these documents it would reveal that the petitioner left India on 12.01.2012 and the petition was filed by the respondent before the trial Court on 01.02.2012 i.e., subsequent to the petitioner leaving the Country. This is also an additional circumstance to show that the petitioner was not in the country when the petition was filed by the respondent before the trial Court and in the above context, if the order of the trial Court is perused placing the -15- CRL.RP.65/2014 petitioner ex-parte it is both erroneous and illegal. In my considered opinion, the First Appellate Court has not applied its mind to these aspects while deciding the matter. An opportunity is necessary for the petitioner to defend his case. Therefore, the impugned order will have to be set aside.
18. Consequently, the revision petition and I.A.No.5/2014 are allowed. The order of the learned Metropolitan Magistrate passed in Cr.Misc.No.28/2012 dated 07.03.2012 and confirmed in Crl.A.No.508/2012 are set aside. The matter is remitted back to the trial Court with a direction to afford an opportunity to the petitioner to file his objections statement and then dispose of the case in accordance with law. To avoid the delay, the parties are directed to appear before the trial Court on 28.07.2014. Soon after the appearance of the parties, the trial Court shall consider the question relating to the custody of the child. -16- CRL.RP.65/2014
I.A.Nos.2 to 4 of 2014 are infructuous and do not survive for consideration. Hence, they are rejected.
Sd/-
JUDGE VM