Delhi District Court
Kamran Son Of Sh. Zakir Hussain vs Khushnuma Daughter Of Naeem Khan on 11 December, 2018
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
CNR No. DL SH010060992018 date of institution : 15.09.2018
Crl. Appeal No.26/18 decision reserved on: 01.12.2018
I.D. No.140/18 date of decision: : 11.12.2018
In the matter of
Kamran son of Sh. Zakir Hussain
resident of D479, Gali No.2, Chauhan
Banger, Delhi110053 ...Appellant
Versus
Khushnuma daughter of Naeem Khan
resident of D568, Gali No.20, Chauhan
Banger, Delhi110053 ...Respondent
J U D G M E N T [On appeal u/s 341 Cr.P.C. Arising from order dated 30.06.2018 by Ms. Vidhi Gupta Anand, Ld. M.M.03 (Shahdara), Karkardooma Courts, Delhi (in brief, the trial court) on application u/s 340 CrPC CC No.CT 3927 (DV 28/17) Khushuma Vs. Kamran & Ors.].
1.1 (Matrix of the case) - For the purposes of issues in this appeal, the relevant facts are that respondent (Khushnuma) filed an application u/s 12 of the the Protection of Women from Domestic Violence Act, 2005 (in brief, the Act, 2005), it was accompanying certain records, inclusive of settlement dated 05.04.2017 with the appellant (Kamran) and also narrating in paragraph No. 7 of the application that there is noncompliance of terms of compromise dated 05.04.2017, she claimed Crl. Appeal No. 26/18 Kamran Vs. Khushnuma Page 1 of 6 various reliefs. Another application u/s 23 (2) of the Act, 2005 was also filed. The trial court had called Domestic Incident Report (DIR) and by order dated 16.08.2017, the appellant was summoned. 1.2 The appellant appeared before the trial court, he filed his reply with documents besides a separate application u/s 340 Cr.P.C. He pleaded that there was settlement/compromise before Delhi Government Mediation and Conciliation Centre on 05.04.2017. There is already talak and subsequently respondent had remarried, the supporting documents were filed with the reply and application u/s 340 Cr.P.C., particularly Nikahnama/marriage certificate dated 30.06.2017 that respondent married with Bilal in the presence of two witnesses. 1.3 The trial court by order dated 30.06.2018 discarded the submissions of appellant and considered the submission of respondent that there is no remarriage visavis application u/s 340 Cr.P.C. was dismissed and matter was put to arguments on interim application, the relevant operating part of order dated 30.06.2018 reads as under : "....it may be noted that DIR dated 09.08.2017 is already on record, which clearly mentions that R1 Kamran is the husband of the petitioner. There is no occasion to dispute the DIR. As far as the stand of the R1 is concerned, that he is not the husband of the petitioner, the same can be proved by him during trial by leading cogent evidence and cross examining the petitioner.
At this stage, from the perusal of the DIR as well as the application of the petitioner u/s 12 of the Protection of Women against Domestic Violence Act 2005 and the supporting affidavit, no grounds are made out to initiate any proceedings against the petitioner u/s 340 Cr.P.C. and therefore the application of R1 u/s 340 Cr.P.C. stands dismissed."
Crl. Appeal No. 26/18 Kamran Vs. Khushnuma Page 2 of 6The appellant filed a revision petition before Hon'ble High Court of Delhi, however, in view of specific provisions of appeal under the law, the revision petition was withdrawn with liberty to file appropriate appeal. That is why this appeal is filed against order dated 30.06.2018.
2.1 Succinctly, the plea in appeal and oral submissions by Sh. S.P. Nangia, Advocate is that application u/s 340 Cr.P.C. could not have been dismissed outrightly without affording opportunity to the appellant as well as contrary to the provisions of law, particularly, the Nikahnama reflects about the marriage took place between the respondent and Bilal in the presence of witnesses, the Nikahanama is also bearing the signature of respondent, which suffice that the application was filed on substantive material of documentary record, which trial court ignored by brief order dated 30.6.2018. Thus, the order dated 30.06.2018 is liable to be set aside. The domestic incident report has been considered as a gospel truth, whereas there is already talak between the parties on 03.03.2016.
2.2 On the other side, Sh. Abbas Khan, Advocate for respondent had reservations that neither anything was concealed from the court and facts were mentioned in the application, which were supported by the record. In the settlement that there some conditions, which were to be complied by the appellant, It is clearly mentioned in the application that there is non compliance of settlement dated 05.04.2017. The respondent was left with no option but to take the course of law. Section 2 (f) of the Act, 2005, which talks about 'domestic relationship' between Crl. Appeal No. 26/18 Kamran Vs. Khushnuma Page 3 of 6 two persons, who live or have lived together in a shared household, this cover the case of respondent in her application.
The respondent had filed the reply to the application u/s 340 Cr.P.C., she had denied the allegations of remarriage. Therefore, there was no substance in the application u/s 340 Cr.P.C. and appeal is without merit. The appeal is liable to be dismissed. 3.1 (Findings with reasoning) - The submissions of both the sides are considered, keeping in view the pleadings of the parties, the copies of record annexed thereto, and the provisions of law on application u/s 340 Cr.P.C. and provisions of appeal u/s 341 Cr.P.C. There is provision of appeal against dismissal or refusal to proceed in application u/s 340 Cr.P.C.
3.2 By taking stock of all these facts, features and circumstances and keeping in view the position of law, this appeal is allowed by setting the operating part of order dated 30.6.2018 (to the extent of dismissing of application u/s 340 Cr.P.C. as extracted and reproduced in sub paragraph 1.3 above) for the following reasons :
(i) when an application is filed u/s 340 Cr.P.C., there may be an inquiry by the court and it is to be decided by the court that it is expedient in the interest of justice to conduct or not an inquiry,
(ii) in terms of order dated 30.06.2018 (its effective part as already been reproduced in subparagraph no.1.3 above), the trial court perceived that two paradoxical conclusions, firstly there is no occasion to dispute the domestic incident report and secondly, the appellant could prove during trial by leading evidence and by cross examining the respondent, which is reflecting that the trial court was considering that Crl. Appeal No. 26/18 Kamran Vs. Khushnuma Page 4 of 6 there exits scope for investigation but in the form of cross examination of respondent,
(iii) thus, it is not the opinion of trial court to be not a case of inquiry but trial court felt that scope is to be located in the evidence (in the main application u/s 12 of the Act, 2005), whereas it was never the intent of legislature, while framing scheme of section 340 Cr.P.C. that an inquiry is to be conducted by evidence in main case, although it is in the discretion of the court to determine the mode of inquiry, consequently dismissal of application u/s 340 Cr.P.C. as if there is no ground, is contrary to the scheme of section 340 Cr.P.C.
(iv) the trial court perceived to dismiss the application because of expected trial to take place, the trial will determine issue pertaining to main case but application u/s 340 Cr.P.C. is governed by the provisions of offences affecting the administration of justice and offences relating to documents, otherwise when the application u/s 340 Cr.P.C. is dismissed, then on what material court will proceed to conduct inquiry, it has not been reserved by the trial court that in the event the contentions are proved then court will proceed suomoto, and
(v) lastly, the trial court itself kept the issue alive to determine after trial, that being so the application was supposed to be kept alive.
4. Accordingly, this appeal is disposed off as allowed and the order dated 30.6.2018 to the extent of dismissal of application u/s 340 Cr.P.C. is set aside. The application u/s 340 CrPC stand restored. The trial court has to reconsider it by opportunity to the appellant Kamran in terms of scheme of section 340 Cr.P.C.
Crl. Appeal No. 26/18 Kamran Vs. Khushnuma Page 5 of 6However, any expression given in the present appeal will not be treated any expression on the merits of the case. Trial court record be sent back alongwith the copy of this judgment forthwith.
Announced in open court today Tuesday, Agraghayana, 20 Saka 1940.
(Inder Jeet Singh)
Additional Session Judge04
(Shahdara), KKD Courts, Delhi
11.12.2018
Digitally signed by
INDERJEET SINGH
INDERJEET Location: Shahdara
District, Karkardooma
SINGH Courts
Date: 2018.12.11
17:30:23 +0530
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