Madhya Pradesh High Court
Hemraj vs Smt.Chanchal on 30 September, 2015
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IN THE HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(SB: Hon'ble Mr. Justice Alok Verma)
CRR No.5/2014
Hemraj S/o Munnala Roshan
Vs.
Smt. Chanchal W/o Hemraj Roshan
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Shri Pankaj R. Soni, learned counsel for the applicant.
None for the respondent.
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ORDER
th (Passed on this 30 day of September, 2015) This criminal revision under section 397 read with section 401 of Cr.P.C. is directed against the order passed by learned Sessions Judge, Indore in Criminal Appeal No.563/2013 dated 11.12.2013 whereby, learned Sessions Judge confirmed the order passed by learned JMFC, Indore in MJC No.11/2012 dated 22.07.2013.
The facts giving rise to this application are that complaint under section 12 of Protection of Women from Domestic Violence Act, 2005, was filed before the Judicial Magistrate by the respondent. In this case, present applicant filed an 2 application under section 468 of Cr.P.C. read with section 31 of Protection of Woman from Domestic Violence Act (hereinafter referred to as "the Act"). As per the averments made in the application, it was stated that present applicant committed physical and mental cruelty on the respondent and also did not return her streedhan which was given to her as gift during her marriage. The Magistrate opined in the impugned order that provision of section 468 of Cr.P.C. which provides period of limitation for taking cognizance in criminal case, do not apply on compliant filed under section 12 of the Act, as it was a continuing offence and, therefore, no limitation can bar filing of the application. The same view was taken by the Sessions Judge and learned Sessions Judge observed that respondent did not pray under section 31 of the Act to take cognizance of any offence under that section and, therefore, provision of section 468 of Cr.P.C. do not apply in this case.
Counsel for the applicant placed reliance on the judgment of Hon'ble the Supreme Court in the case of Inderjit Singh Grewal Vs. State of Punjab and another reported in 2012 Cri.L.J. 309. In para 24 of the judgment, Hon'ble the Supreme Court observed that:-
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24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v.
Chandra Sekhar Mohanty, AIR 2007 SC 2762;
and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.
Placing reliance on this order, the Coordinate Bench of this Court in the case of Dr. Manish Patidar and others Vs. Smt. Madhuri @ Pinki Patidar passed in MCRC No.430/2015 also observed that provision of section 468 of Cr.P.C. applied on the application filed under the provision of Domestic Violence Act.
So far as the present case is concerned, facts of the present case is different than the facts of the case before Hon'ble the Supreme Court in the case of Inderjit Singh Grewal (supra) and also in the case of Dr. Manish Patidar (supra). In both the cases, parties obtained divorce from the competent court and decree of divorce was not nullified by 4 another order of the competent court. In the case of Inderjit Singh Grewal (supra), it was further brought on record that decree of divorce was obtained only to get citizenship in foreign country. Subsequently, parties continued to live as husband and wife and then, it was alleged by wife that she was driven out by her husband. Hon'ble the Supreme Court observed that she was also party to the fraud committed by her husband and, therefore, she cannot take advantage of this fact now. Under this background, the application was dismissed.
However, looking to the provisions under section 31 of the Act, offence is breach of protection order or any interim order. For completion of crime there should be a protection order and then there should be an allegation of breach of that protection or any interim protection order. Plainly filing an application under section 12 of the Act do not constitute any offence as such. Only requirement is that some domestic violence as defined by the Act, should have been taken place.
In the present case, divorce was not granted to the parties though, both the parties applied under section 13(A) of Hindu Marriage Act.However, after prescribed period of six months, respondent did not appear before the Court, therefore, case was 5 dismissed and, therefore, their relationship as husband and wife continued and when such relationship continued, allegation of domestic violence also continued by analogy as a continuing offence. The principles laid down in the case of Inderjit Singh Grewal (supra) and Dr. Manish Patidar (supra) does not apply in the present case.
Accordingly, this criminal revision is devoid of merit, liable to be dismissed and is hereby, dismissed.
C.c as per rules.
(Alok Verma) Judge Kratika/-