Delhi District Court
Ankush Bhalla vs Aastha Khurana on 21 July, 2023
IN THE COURT OF SH. SANJAY KHANAGWAL
ADDITIONAL SESSIONS JUDGE-02,
PATIALA HOUSE COURTS, NDD, NEW DELHI
In Crl. Appeal . No.147/2023
CNR No.DLND01-006013-2023
Ankush Bhalla
son of Sh. Ashok Kumar Bhalla
R/o H. No.V39/2 DLF PH-III,
Gurugram, Haryana-122002
..........Appellant
Versus
Aastha Khurana,
W/o Ankush Bhalla
R/o H. No. 195, Golf Links,
New Delhi-110003.
.........Respondent
Petition received on assignment : 08.07..2023
Arguments on petition concluded : 13.07.2023
Date of pronouncement of order : 21.07.2023
ORDER
1). The present criminal revision petition has been filed u/s 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act) against the impugned order dated 25.05.2023 passed Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 1 of 12 by the Ld. MM, Mahila Court-01 Patiala House Courts, New Delhi in CC No.74/2021 (hereinafter referred to as the impugned order) . Pertinently, by virtue of the impugned order the Ld. MM while granting opportunity to the appellant to address arguments on Respondent's application seeking interim maintenance, adjourned the matter to 11.08.2023. Relevantly, the instant appeal is preferred primarily against the observation of the Ld. MM in the impugned order to the effect, "It is also made clear by this order that the pending application under section 340 CrPC will not be a bar to hear the arguments on the application for deciding the interim maintenance under section 23 of DV Act".
2). Briefly stating, the case of the appellant is that in the respondent's aforementioned complaint proceedings u/s 12 of the DV Act, the appellant moved two applications u/s 340 CrPC highlighting certain alleged material discrepancies in the income affidavit filed on oath by the respondent as well as on the basis of alleged discrepancies between the list of stridhan articles submitted by the respondent before CAW and that filed before the Ld. MM. The appellant, thereafter, also moved an application seeking disposal/early hearing of the said applications u/s 340 CrPC, prior to hearing of the Respondent's application seeking interim maintenance. However, despite appellant's insistence the said applications under 340 CrPC were kept pending adjudication by the Ld. MM. Significantly, on 13.01.2023, the Ld. Trial court fixed the matter for notice on appellant's applications u/s 340 readwith section 195 CrPC as well as for arguments on Respondent's application seeking interim maintenance. Against the said Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 2 of 12 order, the appellant filed a criminal appeal No.31/23 which was, however, dismissed by appellate court vide its order dated 31.03.2023. Thereafter, despite the matter being taken up for consideration by the Ld. MM, the appellant's applications u/s 340 CrPC were not decided. Rather vide impugned order, the matter was again adjourned to 13.08.2023 only for arguments on respondent's application seeking interim maintenance. Accordingly, under such factual background, the appellant has approached this court by means of the present proceeding.
3.). Notably, the matter was first taken up for consideration before this court on 08.07.2023 wherein Ld. counsel for the appellant sought time to address arguments on the maintainability of the present petition. Subsequently, on 13.07.2023, arguments were addressed by the Ld. counsel for the appellant as well as the TCR was requisitioned. Consequently, the matter was reserved for orders.
4.) Ld. counsel for the appellant submitted that while passing the impugned order the Ld. Trial court failed to appreciate that grave injustice would result to the appellant in case interim maintenance is decided/granted in favour of the respondent on the basis of false income affidavit filed by the respondent. Ld. counsel further submitted that it was imperative that the appellant's applications u/s 340 CrPC were decided by the Ld. Trial court prior to proceeding further in the instant case as the respondent was seeking maintenance from the Ld. MM on the basis of false income affidavit and by misrepresenting the Ld. Trial court. It was Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 3 of 12 further submitted that while passing the impugned order, the Ld. trial court failed to appreciate that no relief interim or otherwise could have been granted in favour of the respondent unless the appellant's applications u/s 340 CrPC were decided prior to determination on the respondent's application for interim maintenance. Even otherwise it was submitted that the court is duty bound to dispose of an application u/s 340 CrPC prior to proceeding further in case. In support of the said contentions, the Ld. counsel placed reliance on the decisions in: Rajnesh v. Neha (2021) 2 SCC 324; Dalip Singh v. State of U.P. (2010) 2 SCC 114; Harish V. Milani v. Haresh V. Milani WP No.14039 of 2017 Bombay High Court dated 26.04.2018 and Syed Nazim Husain v. The Addl. Principal Judge, Family Court & Another 2003 ALL HC 271. Ld. counsel for the appellant further relied upon decision of Hon'ble Delhi High Court in Sirisha Dinavahi Bansal v. Rajiv Bansal Crl. M.C. 1554/2020 dated 20.07.2020 to butress his contention that an appeal u/s 29 of the D.V. Act is maintainable against all order of Ld. MM court, including the order as impugned in the present appeal.
5). I have heard the Ld. counsel for the parties, perused the case record as well as the records of the Ld. trial court.
6). At the outset, it is noted that the present appeal is a second round of litigation initiated at the behest of the appellant before this court. From a perusal of the present appeal as well as the documents annexed herewith, it is observed that it is an admitted case of the appellant that in an earlier Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 4 of 12 appeal bearing Crl. Appeal No.31/23, filed by the appellant against the order dated 13.01.2023 of the Ld. MM, appellate court was pleased to dismiss the same vide its order dated 31.03.2023 under the following observations:--
"6. It is important to point out that the present appeal is filed u/s 29 of Domestic Violence Act, 2005. The Section 29 of Domestic Violence Act contains provision where the appeal can be made to the Appellate Court with regard to the orders passed by the Ld. Trial Court in respect of any relief being granted or declined under the Domestic Violence Act, 2005.
7. Here, in the order of the Ld. Magistrate the aspect which has come up in appeal before the present court is not with respect to any relief being granted or declined by the Ld. Trial Court under the Domestic Violence Act, 2005 but appeal is against that part of the order where Ld. Magistrate has kept the application u/s 340 r/w 195 CrPC penting for perusal and consideration till the next date The order dated 13.01.2023 further mentions that the notice of the application u/s 340 r/w 195 CrPC has also been issued by the Ld. Magistrate.
8.) It is implied that the matter with respect to applications filed under section 340 r/w section 195 CrPC is still in active procedural domain of the Ld. Magistrate.
Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 5 of 12 Even perusal of the last order sheet dated 07.03.2023 shows that the applications are pending for disposal and the next date fixed is 22.04.2023.
9. Thus, it is clear that the order of Ld. MM dated 13.01.2023 is not an order passed u/s 18 to 22 of the Domestic Violence Act, 2005. Therefore, the benefit of Section 29 of the Act of 2005, is not available to the appellant."
7.) Relevantly, no appeal was preferred by the appellant against the said order. In fact, subsequent to the matter being taken up for consideration before the Ld. MM's court in respondent's proceedings u/s 12 of the D.V. Act on 24.04.2023 and 25.05.2023, the appellant has opted to approach this court re-agitating similar issue which had already been decided by this court vide its earlier order dated 31.03.2023. Pertinent to mention there has not been any significant change in the stage of proceedings before the Ld. MM since the passing of the earlier order dated 31.03.2023 by the appellate court in criminal appeal No.31/23 and the instant proceedings before this court against the order dated 25.05.2023 of the Ld. MM. Infact, even at that point of time the appellant had approached this court against only one aspect of the order dated 13.01.2023 of the Ld. MM being, " It is submitted by the Ld. counsel for respondent that her two applications u/s 340 readwith 195 CrPC are pending. Ld. counsel prayed that notice be issued to the opposite party and same cannot be kept pending as a matter of practice". As afore mentioned, vide its order dated 31.03.2023, the Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 6 of 12 appellate court had specifically noted that the order dated 13.01.2023 of the appellate court was not an order passed u/s 18 to 22 of the DV Act and therefore, held that remedy under section 29 of the said Act would not be available to the appellant. Even now a perusal of the impugned order demonstrates that no rights of the appellant have been adjudicated upon by the Ld. MM under the impugned order and infact only an opportunity was granted to the appellant to advance his arguments on the respondent's application seeking interim maintenance. Significantly, in the said order the Ld. MM had specifically observed, "The undersigned will go through the authorities filed by both the parties u/s 340 CrPC and proceed with the arguments". Infact, even as on date the appellant's applications u/s 340 CrPC are still pending adjudication before the Ld. MM and no reason appears to be forthcoming from the pleadings or arguments on behalf of the appellant, convincing this court to entertain and allow the present appeal. Needless to mention the impugned order is not only interlocutory rather, purely procedural in nature against which no appeal u/s 29 of DV Act would be maintainable. In this regard it is further noted that even the decision of the Hon'ble High Court of Delhi in Sirisha Dinavahi Bansal (Supra) would not be of much assistance to the appellant for the reason that in the said case, the Hon'ble High Court was not confronted with the facts, akin to the case before this court. At the same time, this court is of the considered opinion that the decision of the Hon'ble High Court in Sirisha Dinavahi Bansal (Supra) cannot be read to extend the remedy u/s 29 of the DV Act even against interlocutory procedural orders of the court. Clearly, in case the said decision is read in the manner as sought for by the Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 7 of 12 Ld. counsel for the appellant, the same would open flood gates of litigations, subjecting each and every order of the Ld. MM (including every procedural order) subject to appeal u/s 29 of the DV Act. Quite understandably, the same does neither appear to be the ratio nor the reasoning behind the verdict of the Hon'ble High Court in Sirisha Dinavahi Bansal's case (Supra).
8). Infact, in this regard reference is made to the decision of the Hon'ble Chattisgarh High Court in Vishal Jindal v. Smt. Pooja Jindal, Criminal Revision 799/2012 dated 23.07.2014 wherein the Hon'ble Court outrightly observed that purely interlocutory orders, which do not substantially affect the rights of parties are not appealable u/s 29 of the DV Act. Relevant extract of Vishal Jindal's case (Supra) is as under:-
"Thus, keeping in view the principles of law laid down by their Lordships of the Supreme Court in above- noted cases, it appears that purely interlocutory orders which deals with procedure and which do not affect or determine the rights and liabilities of the parties, will not come within the sweep of the expression "the order" as used in Section 29 of the Act of 2005. The order impugned has to affect or have a material bearing on the rights of the parties in order to make such order appealable. It has correctly been pointed out that Section 29 of the Act of 2005 does not exclude interlocutory orders from the sweep of expression "the order". But, even without such a specific exclusion, as found in sub-section (2) Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 8 of 12 of Section 397 of the Cr.P.C. and sub-section (1) of We' sec Section 19 of the Family Courts Act, the purely High Court Chamisam interlocutory orders, which do not substantially affect or determine the rights and liabilities of the parties, shall not be appealable within the meaning of Section 29 of the Act of 2005. However, even in the absence of such specific exclusion, purely procedural orders, which are only steps in aid for final disposal of an application under Section 12 of the Act of 2005. claiming reliefs under Sections 18 to 22 of the Act of 2005, can be excluded from the purview of the expression "the order" in Section 29 of the Act of 2005."
09). Without prejudice to aforesaid, this court is further not convinced with the appellant's contention that grave prejudice would be caused to the appellant incase his applications u/s 340 CrPC are not decided prior in time to the adjudication on respondent's application seeking interim maintenance. Clearly, the respondent's application has to be determined on its own merit and the grounds of falsity in the said application, if any, can be well raised and proved by the appellant at the time of such adjudication. Further the decisions sought to be relied upon by the appellant in this regard would not be of much assistance for the reason that the same are distinguished from the facts of the instant case. On the contrary, in this regard reference is made to the decision of the Hon'ble High Court of Delhi in Punjab Tractors Ltd. v. International Tractors Ltd. 167 (2010) DLT 490 wherein the Hon'ble Court had specifically observed that Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 9 of 12 application u/s 340 CrPC ought to be normally considered at the time of final decision of the case only and not at the interim stage. Relevant extract thereof is reproduced as under:-
"18. In my opinion, an application under Section 340 of the Cr.PC ought to be normally considered at the time of final decision of the case only and not at the interim stage as the defendants/applicant have pressed in the present case. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact the very genesis of this provision is to prevent complaints being filed of offences having being committed in relation to the court proceedings; it was felt that if such complaints are permitted to be filed, the same may be used to force the other party into giving up its claim/defence or to dissuade witnesses from appearing before the courts under threat of criminal prosecution. It was held as far back as in Rewashankar Moolchand Vs. Emperor AIR 1940 Nagpur 72 that proceedings under Section 340 Cr.PC should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil court before which the matter would probably go on for longer. This court also in M/s Jindal Polyster Ltd. Vs. Rahul Jaura 124 (2005) DLT 613 and in Kuldeep Kapoor Vs. Susanta Sengupta 126 (2006) DLT 149 has held that applications under Section 340 of the Cr.PC should be dealt with at the final stage only and not at the interim stage. I also Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 10 of 12 find a consistency of view in this regard in the other High Courts. The law is that a prosecution for perjury should not be ordered by the court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a court to take action under the said provision against a witness or a party for giving false evidence when trial is underway."
10). Pertinently, from perusal of the case records of the Ld. Trial court, it is observed that the respondent's application for interim maintenance was first listed for arguments on 07.03.2022. Thereafter, till date the appellant has not addressed his arguments on the said application and has continuously insisted upon addressing arguments on his applications u/s 340 CrPC, prior to adjudication on the respondent's said application. Further, as afore mentioned the appellant had earlier also approached this court by means of criminal appeal No.31/23 against the order dated 13.01.2023 of the Ld. Trial court, which was dismissed by the appellate court vide its order dated 31.03.2023. However, undeterred, the appellant has re-agitated similar issue before this court by means of the present appeal which in the opinion of this court is nothing but an abuse of the process of law, deserving dismissal at the outset. Undoubtedly, this court is cognizant of the apprehension of the appellant regarding a possibility of grant of relief to the respondent on respondents false pleadings, if any. However, as aforementioned such arguments can be well raised by the appellant before the trial court at the stage of addressing his arguments in respondent's said application. Clearly, such contention and/or apprehension Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 11 of 12 cannot be allowed to stall the proceedings before the trial court seeking disposal of applications u/s 340 CrPC prior in time to the respondent's applications. This is especially more so for the reason that the issue of perjury is between court and an accused. Needless to reiterate that no appeal/ challenge was preferred against the order dated 31.03.2022 of this court in Criminal Appeal No.31/23 rather the appellant opted to file the present appeal before this court on 09.06.2023 despite there being any substantial change of any circumstance in the proceedings before the trial court since 13.01.2023. Pertinently, the applications u/s 340 CrPC are still pending adjudication before the Ld. Trial court. Accordingly, considering the aforesaid facts and circumstances, the present appeal deserves to be dismissed at the outset as amounting to abuse of process of law.
11.) In view of the above discussion, I do not find any infirmity in the impugned order of the Ld. MM, Mahila Court-I dated 25.05.2023. Accordingly the appeal is dismissed with a cost of Rs.20,000/- to be deposited with DLSA, New Delhi within 15 days from the date of this order under the intimation of Ld. Trial court.
12). Copy of the instant order alongwith trial court record be sent to the Ld. Trial Court concerned.
13). File of criminal appeal be consigned to record room.
Digitally signed by SANJAY SANJAY KHANAGWAL
Announced in Open Court KHANAGWAL Date: 2023.07.24
16:10:46 +0530
On 21st July, 2023. (Sanjay Khanagwal)
ASJ-02 PHC / NDD
New Delhi.
Case. No. 147/2023 Ankush Bhalla v. Aastha Khurana. page 12 of 12