Karnataka High Court
Sri. Vivek Manoj Gangishetty vs Smt. Saigeetha on 25 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:41092
CRL.P No. 11918 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 11918 OF 2023
BETWEEN:
SRI. VIVEK MANOJ GANGISHETTY
S/O GOVINDARAJULU GANGISHETTY,
AGED ABOUT 41 YEARS,
RESIDING AT NO. 10, APOORVA LAYOUT,
AKASHAVANI LAYOUT, 1ST CROSS,
HEGDENAGAR, THANISANDRA,
RACHANAHALLI,
BANGALORE-560 077.
...PETITIONER
(BY SRI. SHIVARUDRA, ADVOCATE)
AND:
SMT. SAIGEETHA
W/O VIVEK MANOJ GANGISHETTY,
Digitally signed D/O RAMESH KORALLA,
by NAGAVENI
AGED ABOUT 35 YEARS,
Location: HIGH
COURT OF R/AT NO. 6F, ASPEN BLOCK,
KARNATAKA REGENCY PINNACLE HEIGHTS,
RACHANAHALLI,
BANGALORE-560 077.
...RESPONDENT
(BY SRI. JAYSHYAM J RAO, ADVOCATE FOR
SMT. BHAVANA M., ADVOCATE)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO A.
SET ASIDE THE ORDER PASSED BY THE VI MMTC COURT
BENGALURU IN CRL.MISC.NO.21/2021 DATED 30.06.2023
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NC: 2024:KHC:41092
CRL.P No. 11918 of 2023
GRANTING THE INTERIM MAINTENANCE OF RS.35000/- PER
MONTH AND THE ARREARS THEREOF.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court seeking the following:
"(i) Call for records pending on the files of 6th MMTC, Bangalore in Crl.Misc.No.21/2021;
(ii) Set aside the order passed by the by the VI MMTC Court, Bangalore in Criminal Miscellaneous Petition No.21/2021 dated 30.06.2023 granting the interim maintenance of Rs.35,000/- per month and the arrears thereof;
(iii) Direct the respondent to produce the income tax details from2018 till 2023 vide PAN: BIHPS7448Q and also the salary certificate of the respondent, she is working in City Bank Gurgaon, Branch in the interest of justice and equity"
2. Heard Sri Shivarudra, learned counsel for petitioner and Sri Jayshyam J. Rao, learned counsel for respondent.
3. The issue in the lis need not detain this Court for long or delve deep into the matter, as this Court has dealt with an identical issue of maintainability of such petition, which calls in -3- NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 question the order on an application filed under Section 29 of the Act, as the petitioner has an alternative, efficacious and statutory remedy available before the Sessions Court under Section 29 of the Act, as is held in Crl.P.No.3578/2022 in the case of A.RAMESH BABU vs. DHARANI S., disposed on 28.06.2024. It is held as follows:
"10. A Full Bench of the High Court of Bombay, in the case of NANDKISHOR PRALHAD VYAWAHARE v. MANGALA1 in which the issue was whether the High Court can exercise the power under Section 482 of the Cr.P.C. in respect of proceedings under the Act, answers it after considering the entire spectrum of the Act and the precedents then obtaining as follows:
".... .... ....
42. We have seen that the nature of proceeding initiated under the D.V. Act is predominantly of civil nature. But, can we say, only because the proceedings have a dominant civil flavour, the applicability of the provisions of Criminal Procedure Code to the proceedings under the D.V. Act, is excluded or to be precise inherent power of the High Court under section 482 of Criminal Procedure Code is not available to deal appropriately with these proceedings, in spite of express application of the provisions of Criminal Procedure Code by the Parliament as provided under section 28 of the D.V. Act? In other words - Would the nature of the proceedings decide the fate of section 28 or the intention of the Parliament as expressed in section 28 of the D.V. Act would? To find out an answer, as a first step, we must look into the express language of the provision of section 28 of the D.V. Act and then if required, we may look for external aids, if any, as 1 2018 SCC OnLine Bom.923 -4- NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 dictated to us by the settled principles of statutory interpretation.
... ... ...
50. Coming to the second part of section 28 of the D.V. Act, which is in sub-section (2), our view is no different than what we hold for the other exceptions we have expressed our mind on. This provision also stands as an exception to the generality of the applicability of the provisions of Criminal Procedure Code. It only enables the Court to lay down its own procedure, notwithstanding the general applicability of the provisions of Criminal Procedure Code to all the proceedings under the D.V. Act, as laid down in section 28(1). As it is only an enabling provision of law, it may or may not be put to use by the Court in a given case and everything will depend upon fact situation of each case. An enabling section, empowering the Court to make an exception to the generality of the previous section, does not by itself divest the previous section of its general character and affects the generality of the previous section only when it is actually put to use in a particular case. Whenever, such power conferred by the enabling section is used, it comes to an end the moment the proceeding is concluded. This power under section 28(2) exists for speedy and effective disposal of an application under section 12 or under sub- section (2) of section 23 and as soon as the purpose is achieved, the power extinguishes itself. In other words, the power under sub-section (2) of section 28 begins, if at all it begins, upon the decision taken by the Court on the commencement of or during the course of the proceeding under section 12 or section 23(2) and comes to an end the moment the proceeding is disposed of in accordance with law. Therefore, such power of the Court cannot be construed in a way as to confer more power than intended by the Parliament so as to exclude the applicability of the provisions of Criminal Procedure Code, forever and for all times to come after the Court has disposed of such a proceeding. If this enabling section is to be understood, even when it is not put to use, as excluding criminal remedies and measures made -5- NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 available under the D.V. Act to a party aggrieved by the decision of the Court, as for example, remedy of criminal revision under section 397 or invocation of High Court's inherent power under section 482 of Criminal Procedure Code, we would be doing violence to the language of entire provision of section 28 of the D.V. Act and putting into the mouth of the Parliament something not intended by it, which is not permissible under the settled rules of construction.
51. The purpose of the power given to the Court under section 28(2) of the D.V. Act is only to provide a powerful tool in the hands of the Court to provide effective and speedy remedy to the aggrieved person. Such power given to the Court is likely to come in handy for the Court dealing with section 12 D.V. Act application in a given case and especially the Courts contemplated under section 26 of the D.V. Act before whom similar applications are filed. Section 36 of the D.V. Act also lays down that the provisions of the Act are in addition to and not in derogation to the provisions of any other law, for the time being in force. The combined reading of all these provisions of law would only strengthen the conclusion so reached by us.
52. If the concept of limited applicability of the provisions of the Criminal Procedure Code, as propounded by Shri C.A. Joshi, learned Counsel for the respondent is accepted; in our considered view, it would defeat the very object of the Act which is to provide effective protection to women against the incidence of domestic violence. If the Parliament, intended to provide for a remedy under the civil law, it also intended to make the remedy effective and meaningful by laying down for general applicability of the criminal procedure, subject to the exceptions created in the Act. It has envisaged that the job of providing effective remedy to the aggrieved person is best performed by the Courts only when the procedure adopted to do it is informed by the best of both the worlds. That is the reason why the Parliament has provided for general applicability of the criminal -6- NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 procedure and has also simultaneously given freedom to the Court to devise its own procedure in a particular case so as to suit the exigencies of that case. We may add here that language used in section 28(2) is significant and needs to be taken into account. The freedom to lay down "own procedure" is confined to only a particular proceeding either under section 12 or section 23(2) of the D.V. Act pending before the Court, which is clearly seen from the use of the words "for disposal of an application under section 12, sub-section (2) of section 23" after the words "nothing in sub-section (1) shall prevent the Court from laying down its own procedure".
53. This would mean that generally the provisions of Criminal Procedure Code would be applicable, to all proceedings taken under sections 12 to 23 and also in respect of the offence under section 31 of the D.V. Act, subject to the exceptions provided for in the Act including the one under sub-section (2) of section 28. It would then follow that it is not the nature of the proceeding that would be determinative of the general applicability of Criminal Procedure Code to the proceedings referred to in section 28(1) of the D.V. Act, but the intention of the Parliament as expressed by plain and clear language of the section, which would have its last word. We have already held that section 28 of the D.V. Act announces clearly and without any ambiguity the intention of the Parliament to apply the criminal procedure generally subject to the exceptions given under the Act. So, the inherent power of the High Court under section 482 of Criminal Procedure Code, subject to the self-imposed restrictions including the factor of availability of equally efficacious alternate remedy under section 29 of the D.V. Act, would be available for redressal of the grievances of the party arising from the orders passed in proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and also in respect of the offence under section 31 of the D.V. Act.
54. We are also fortified in our view by the opinion expressed by the Division Bench of the -7- NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 Gujarat High Court in the case of Ushaben (supra), wherein it is observed that a proposition that because the proceedings are of civil nature, the Criminal Procedure Code may not apply, is too general a proposition to be supported in a case where the Parliament, by express provision, has applied the provisions of Criminal Procedure Code to the proceedings under the Act (Paragraph 16). It also held that the remedy under section 482 of Criminal Procedure Code would be available to an aggrieved person, of course, subject to self- imposed restrictions on the power of the High Court in this regard. Relevant observations of the Division Bench appearing in paragraph 19 of the judgment are reproduced as under:
"19. In view of the discussion and the observations made by us herein above, once the provision of the Code has been made applicable, it cannot be said that remedy under section 482 of the Code would be unavailable to the aggrieved person. But the said aspect is again subject to self-imposed restriction of power of the High Court that when there is express remedy of appeal available under section 29 before the Court of Session or revision under section 397, the Court may decline entertainment of the petition under section 482 of the Code. But such in any case would not limit or affect the inherent power of the High Court under section 482 of the Code."
55. At this juncture, we would like to go back to the observations of the Hon'ble Apex Court made in paragraph 11 of its judgment in Kunapareddy (supra) wherein the Hon'ble Supreme Court finding that the petition in that case was essentially under sections 18 and 20 of the D.V. Act held that though it could not be disputed that these proceedings are predominantly of civil nature, the proceedings were to be governed by Criminal Procedure Code as provided under section 28 of the D.V. Act. These observations would also make it clear to us that at least a proceeding initiated for obtaining protection order under section 18 and monetary relief under section 20 would be governed by the provisions of Criminal Procedure Code in terms of -8- NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 section 28 of the D.V. Act, in spite of the fact that such proceeding is almost like a civil proceeding. If these observations apply to a proceeding taken for obtaining reliefs under sections 18 and 20 of the D.V. Act, there is no warrant for us to say that the observations would not be applicable to other proceedings, like those under sections 19, 21 and 22 of the D.V. Act. In our humble opinion, these observations would also have their applicability to the other proceedings discussed just now.
56. In the case of Sukumar Gandhi (supra), the Division Bench of this Court, however, held that because the proceedings under section 12(1) initiated to obtain various reliefs under the Act, mainly being of civil nature, no resort to section 482 of Criminal Procedure Code could be taken for the purpose of seeking their quashment. It was of the view that if such an inference is made, it would defeat the very object of the D.V. Act of providing for a speedy and effective remedy for enforcing an amalgamation of civil rights. Accordingly, it held that barring the prosecutions initiated for trying of the offences prescribed under the Act, inherent power of the High Court under section 482 of Criminal Procedure Code could not be invoked for quashing of the proceedings. In view of the discussion made and the conclusions drawn in the earlier paragraphs, it is not possible for us to agree with the view so taken by the Division Bench of this Court and we declare it to be an incorrect view. If we accept the opinion of the Division Bench, the result, in our view, would be quite opposite to what has been thought of by it. That apart, making section 482 of Criminal Procedure Code as not applicable may also amount to doing harm to plain and clear language of section 28 of the D.V. Act, which expresses unequivocally and clearly the intention of the Parliament, thereby excluding the possibility of resorting to external aids and other rules of construction.
57. While there is no difference of opinion about what the intention of the Parliament is, our disagreement is with the view that this very -9- NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 intention gets defeated by applying the provision of section 482 to the proceedings under section 12(1) of the D.V. Act and it is achieved by removing its applicability. The issue can be examined from a different angle as well.
58. A plain reading of section 482 of Criminal Procedure Code, which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice. This would mean that not only the respondent-man but also the aggrieved person- woman may feel like approaching the High Court to give effect to any order or to prevent abuse of the process of Court or to secure ends of justice. This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under section 12 of the D.V. Act. If this power is removed from section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated.
59. Now, one incidental question would arise as to from what stage the provisions of the Criminal Procedure Code would become applicable and in our view, the answer could be found out from the provisions of sections 12 and 13 of the D.V. Act. A combined reading of these provisions shows that the commencement of the proceedings would take place the moment, the Magistrate applies his mind to the contents of the application and passes any judicial order including that of
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NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 issuance of notice. Once, the proceeding commences, the procedure under section 28 of the D.V. Act, subject to the exceptions provided in the Act and the rules framed thereunder, would apply. In other words, save as otherwise provided in the D.V. Act and the rules framed thereunder and subject to the provisions of sub-section (2) of section 28, the provisions of the Criminal Procedure Code shall govern the proceedings under sections 12 to 23 and also those relating to an offence under section 31 of the D.V. Act on their commencement."
(Emphasis supplied) The Full Bench considers at what point in time or at what stage the Cr.P.C. would become applicable and holds that it is only where an order is passed.
Xxxxx xxxxx xxxxx SUMMARY OF THE FINDINGS: (i) A petition under Section 482 of the Cr.P.C. calling
in question the entire proceedings before the concerned Court initiated under the Protection of Women from Domestic Violence Act, 2005 would be maintainable, only if the proceedings are challenged on the ground of abuse of the process of the law, as the Court of Session is not empowered to obliterate the proceedings holding it to be an abuse of the process of the law.
(ii) Any specific order passed by the concerned Court answering applications filed under Sections 18, 19, 20 or 22 of the Act or any
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NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 other interlocutory order would not be entertainable before this Court in its jurisdiction under Section 482 of the Cr.P.C. The aggrieved, by any order, has to prefer an appeal under Section 29 of the Act, as it is an alternative and statutory remedy available.
(iii) Finding the entire process initiated by the respondent against the present petitioners, the father-in-law and mother-in-law, to be an abuse of the process of the law, those proceedings are to be obliterated."
(Emphasis supplied) In the light of the facts obtaining in the case at hand and the afore-quoted judgment of this Court, which covers the issue on all its fours, this Court would not entertain this petition.
In that light, learned counsel appearing for the petitioner submits that he would approach the concerned Court under Section 29 of the Act. He would further submit that the protective orders that are granted today, be continued till he knocks at the doors of the Appellate Court. Therefore, the petitioner is permitted to knock at the doors of the appropriate
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NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 Court in the light of the aforesaid judgment within four weeks from today.
In the event, if he would not approach the concerned Court, the interim protection would automatically vanish.
Therefore, keeping open all contentions of both the parties, to be urged before the Court of Sessions, the criminal petition stands disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE BVK List No.: 1 Sl No.: 121
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NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU [SRI. VIVEK MANOJ GANGISHETTY VS. SMT. SAIGEETHA] 25.10.2024 (VIDEO CONFERENCING / PHYSICAL HEARING) CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER ON 'BEING SPOKEN TO' This Court, disposed the petition in terms of its order dated 25.09.2024.
The learned counsel for the respondent has moved the matter for 'being spoken to' on the score that there is no direction printed as was dictated for release of the amount of Rs.3.00 lakhs that is in deposit before this Court to the wife.
Learned counsel for the petitioner would not dispute the said position, as is projected by the learned counsel appearing for the respondent.
Therefore, the deposit which is before this Court shall be transmitted to the account of the wife after due verification on a claim being made by the wife without brooking any delay.
This Court while disposing the petition has granted four weeks time from 25.09.2024 to approach the concerned Court.
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NC: 2024:KHC:41092 CRL.P No. 11918 of 2023 Since the certified copy was available at a later point in time, I deem it appropriate to extend the same by an outer limit of six weeks from today.
All other conditions stipulated therein will stand intact.
This order shall be treated as part and parcel of the order dated 25.09.2024.
Sd/-
(M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 1