Delhi District Court
Yogita vs Gurender Rana (Brother) on 13 October, 2020
IN THE COURT OF SURESH KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
Criminal Appeal No.168/18
Yogita
D/o Sh. Mange Ram Rana
R/o Flat No. A1, Plot No. 133/6, BlockA
Near Sharma General Store,
Rama Vihar, Delhi110081 ........ Appellant
Versus
1. Gurender Rana (Brother)
S/o Sh. Mange Ram Rana
2. Smt Sharda (Sister in law)
W/o Sh. Gurender Rana
Both R/o M91, Dharma Pura,
Near Tuda Mandi, Najafgarh,
Delhi
3. Hitender (Brother)
S/o Sh. Mange Ram Rana
4. Smt Vandita (Sister in law)
W/o Sh. Hitender
Both R/o C3, Old Govind Pura,
Delhi110081 .........Respondents
Instituted on : 27.10.2018
Argued on : 05.10.2020
Decided on : 13.10.2020
Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 1/10
JUDGMENT
1. The appellant has impugned the order dated 17.08.2018 vide which her application u/s 31 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act) has been dismissed.
2. The appeal is filed on the grounds that ld. Trial court has observed that incident dated 05.05.2015 is prior to the passing of order dated 30.06.2015 so Section 31 of the Act is not applicable to this incident. FIR No. 585/15 was of separate incident which was lodged prior to 30.06.2015. The incident dated 02.11.2015 is after the passing of the protection order. The respondents have been violent towards her and even continued their violence against her after passing of order dated 30.06.2015. CCTV footage dated 02.11.2015 was not considered. The respondents no.1 and 3 have no fear of law that is why they had come to her house to cause harm to her even after passing of the protection order. Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 2/10 The allegations clearly fall within the ambit of Section 31 of the Act. Hence this appeal.
3. The appellant has also filed an application to condone the delay in filing the appeal on the grounds that she has received the certified copy of the order on 27.09.2018. There is delay of 10 days in filing the appeal due to the fact that there was court vacations on 17.10.2018, 19.10.2018 and 24.10.2018. Hence, this application.
4. The respondents have filed their reply to the effect that the appellant is an advocate who is misusing the due process of law in order to harass and humiliate them. They have great regard for the appellant. The appellant has implicated them in order to grab the property. The allegations regarding violation of the protection order are false and frivolous. There is delay in filing the application u/s 31 of the Act.
Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 3/10
5. The facts are like this. The appellant has filed an application u/s 12 of Act against the respondents. The application is contested by the respondents.
6. On 30.06.2015 an order was passed to the effect that respondents are restrained from physically contacting the appellant and her son. The respondents were also restrained from making telephonic call to the appellant and her son. The notice to the appellant can be served through her counsel. The respondents were also restrained from causing any damage to the movable and immovable property of the appellant especially house and car during the pendency of the application.
7. The appellant has filed an application u/s 31 of the Act to the effect that respondents have willfully and deliberately violated the order dated 30.06.2015. On 05.05.2015 she had come to Rohini Court to attend the court case where Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 4/10 respondents no. 1 and 3 have misbehaved with her and matter was reported to Police Chowki, Rohini Courts and FIR no. 585/15 PS, Prashant Vihar was registered. On 02.11.2015 respondents no.1 and 3 came to her residence in her absence. The neighbours narrated the incident to her that respondents no. 1 and 3 have used filthy language for her who had intention to harm her. She saw the CCTV footage dated 02.11.2015 and came to know that at 4.00 pm and again at 4.19 pm one unknown person in police dress was accompanying the respondent and clicked several photographs of her residence with some oblique motive. Hence, this application.
8. The reply to the application was filed by the respondents wherein they have averred that appellant is filing the false and frivolous application in order to harass and humiliate them. On 05.05.2015 the court was on leave. The appellant threatened respondent no.1 and 3 to implicate them in a false Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 5/10 case and lodged the false case u/s 354 IPC against them. The present application has been filed after a lapse of two years in order to blackmail them. They are not in domestic relationship with the appellant. The allegations are false and frivolous.
9. Ld. Trial court after hearing the ld. Counsel for the parties and perusing the record has dismissed the application.
10. Ld. Counsel for the appellant submitted that the respondents have deliberately and intentionally flouted the order dated 30.06.2015. She further submitted that respondents have visited her house in her absence and abused her which was brought to her notice by the neighbours. She further submitted that CCTV footage dated 02.11.2015 shows the presence of respondents in her house which corroborates the facts narrated to her by her Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 6/10 neighbours.
11. The respondent no.1 has himself addressed the submission on behalf of all the respondents and submitted that all the allegations are false and frivolous and present application has been filed in order to harass them. He further submitted that there is delay in filing the application for which no explanation has come on record.
12 Heard and perused the record.
13. The appellant has filed an application u/s 5 of Limitation Act. The reasons for delay in filing the appeal are convincing as they do not smack of any malafide on the part of the appellant. There is sufficient cause to condone the delay in filing the appeal. The application u/s 5 of Limitation Act is allowed.
Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 7/10
14. The application u/s 12 of the Act is filed by the aggrieved person for granting one or more reliefs u/s 18 to 22 of the Act.
15. The penal provision is only u/s 31 of the Act, wherein there is provision for the imprisonment. Section 28 of the Act says that provisions of Cr.PC shall be followed for proceedings u/s 12, 18 to 23 and 31 of the Act.
16. Section 468 Cr.PC prescribes the limitation period for taking the cognizance if offence is punishable with imprisonment or with fine. Section 31 of the Act prescribe the punishment for a term which may extend to one year or with fine which may extent to Rs.20,000/ or both for the breach of protection order or of an interim protection order. The limitation is applicable only after the breach of the order passed in application u/s 12 of the Act.
Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 8/10
17. It is clear that if there is a breach of an order in an application u/s 12 or any of the relief u/s 18 to 22 of the Act, then and then only an application u/s 31 of the Act is to be filed within one year from the date of such breach and not thereafter. The limitation period to file the application u/s 31 of the Act for the violation of the protection order is one year from the date of breach of the said order.
18. In the instant case, the protection order is dated 30.06.2015. The alleged breach of the said order has taken place on 02.11.2015 as the incident dated 05.05.2015 is prior to the date of protection order dated 30.06.2015.
19. The application u/s 31 of the Act has been filed on 03.08.2017 which is clear from the ordersheet of even date. The application has been filed after more than one year from the date of alleged breach of protection order. The application u/s 31 of the Act is barred by limitation. The application u/s Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 9/10 31 of the Act has also been dismissed by taking a ground that application also suffers from gross laches.
20. I do not find any infirmity in the order dated 17.08.2018 passed the Ld. Trial Court. The appeal is dismissed.
21. TCR alongwith copy of the judgment be sent to the Ld. Trial Court.
22. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
Digitally signed by
IN PHYSICAL HEARING SURESH SURESH KUMAR
KUMAR GUPTA
ON 13th OCTOBER 2020 GUPTA
Date: 2020.10.13
16:23:08 +0530
(SURESH KUMAR GUPTA)
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
Yogita vs Gurender Rana and Ors - CA No. 168 of 2018 10/10