Karnataka High Court
Sayeeda Fakrunissa Begum And Ors vs Asiya Parveen on 31 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1250, 2020 CRI LJ 38, 2019 (4) AKR 489, (2019) 3 HINDULR 819, (2019) 4 ALLCRILR 795
1 CRL.P.No.200687/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY, 2019
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No.200687/2018
BETWEEN:
1. Sayeeda Fakrunissa Begum
W/o late Abdul Jabbar
Aged about 64 years
Occ: Household
R/o H.No.22-8-588/1
Lakkad Kote Jubilee
Mir Chowk, Hyderabad
2. Mohammad Abdul Rafe
S/o Late Abdul Jabbar
Aged about 26 years
Occ: Private Service
R/o H.No.22-8-588/1
Lakkad Kote Jubilee
Mir Chowk, Hyderabad
3. Sayeeda Azmatunnisa Begum
W/o Ma Masood Khan
Aged about 40 years
Occ: Household
R/o H.No.16-3-834
Chanchalguda, Hyderabad
4. Sayeeda Ismatunnisa Begum
W/o Mohammad Ibrahim
Aged about 26 years
2 CRL.P.No.200687/2018
Occ: Private Service
R/o H.No.17-8-99/A
Guddi Bowli, Yakutpura
Hyderabad
Presently residing at Sharja
Soudi Arebia
... Petitioners
(By Sri Ravi B. Patil, Advocate)
AND:
Asiya Parveen
W/o Abdul Rehmaan
Aged about 32 years
Occ: Household
R/o Kusum Galli
Bidar-585 401
... Respondent
(By Sri Deepak Kumar G., Advocate)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to allow the present petition and quash the
entire proceedings initiated by the respondent in Criminal
Misc.No.152/2015 pending on the file of the Court of II-
Additional Civil Judge and JMFC at Bidar under Section 12
of Protection of Women from Domestic Violence Act 2005 as
highly illegal and contrary to the provisions of law and to set
aside the Order dated 20.06.2016 passed by the Court of II-
Additional Civil Judge and JMFC at Bidar, issuing NBW
against the petitioners for having failed to appear on every
date of hearing in Crl.Misc.No.152/2015 and
3 CRL.P.No.200687/2018
consequentially, to set aside the order dated 04.07.2018
passed in Criminal Appeal No.30/2016 passed by the Court
of Additional District and Sessions Judge at Bidar as illegal
and contrary to law.
This petition is coming on for Admission, this day, the
Court made the following:
ORDER
Petitioners are respondent Nos.2 to 5 in Criminal Miscellaneous No.152/2015 pending on the file of II- Additional Civil Judge and JMFC, Bidar. The respondent filed the said petition against the petitioners and the first respondent-Abdul Raheman seeking monetary relief by way of maintenance of Rs.15,000/- per month to herself and Rs.5,000/- per month to her minor son from respondent No.1 therein, compensation of Rs.10,00,000/- for mental and physical abuse and order of separate residence, custody of minor child, protection order and return of the articles. 4 CRL.P.No.200687/2018
2. For the purpose of convenience, parties will be referred to henceforth by their ranks before the trial Court.
3. Marriage of the first respondent with the petitioner was solemnized on 05.05.2011 at Hyderabad. Out of the said wedlock, couple have son born on 17.11.2013. Respondent No.2 is the mother and respondent Nos.3 to 5 are the siblings of the first respondent.
4. The petitioner alleged that, at the time of marriage, on demand of the respondents several household and valuable articles were given and marriage was performed incurring Rs.17,00,000/-. She alleged that the respondents subjected her to physical and mental abuse and thus sought aforesaid reliefs.
5. Respondent Nos.2 to 5 alone appeared before the Magistrate. The Magistrate had passed interim 5 CRL.P.No.200687/2018 order dated 09.02.2015 against respondent No.1 for payment of interim maintenance of Rs.5,000/- per month to the petitioner and Rs.3,000/- per month to the minor son.
6. On 04.01.2016 respondent No.2 appeared before the Magistrate and consented to take the petitioner to the shared household. Thereafter, on 20.01.2016, she did not appear before the Court. Therefore, the Magistrate issued non-bailable warrant against respondent Nos.2 to 5.
7. On 20.06.2016, respondent Nos.2 to 5 filed application before the Magistrate under Section 70(2) Cr.P.C., to recall the non-bailable warrant issued against them. On 22.06.2016, the trial Court rejected the said application.
8. Challenging the said order, respondent Nos.2 to 5 filed Criminal Appeal No.30/2016 before the 6 CRL.P.No.200687/2018 Additional District and Sessions Judge, Bidar. The Sessions Judge on hearing the parties, dismissed the said appeal on 04.07.2018.
9. Respondent Nos.2 to 5 seek quashing of the proceedings in Criminal Miscellaneous No.152/2015 and order of the Magistrate dated 20.06.2016 and the judgment of the Sessions Court dated 04.07.2018.
10. Sri Ravi B. Patil, learned counsel for respondent Nos.2 to 5 the in-laws seeks to challenge the proceedings of the Courts below on the following grounds:
i. Proceedings under the Domestic Violence Act (for short 'DV Act') are not the criminal cases therefore, presence of the respondents on each hearing date is not required.
ii. By issuing non-bailable warrant, the trial Court is coercing respondent No.2 to pay maintenance ordered against respondent No.1 which is impermissible.7 CRL.P.No.200687/2018
iii. Procedure followed by the Magistrate is contrary to Section 12 of the DV Act and rules 6, 9 and 12 of the rules framed thereunder.
iv. The application of respondent Nos.2 to 5 to recall NBW is rejected on the sole ground that they were not present which is contrary to the spirit of Section 70(2) Cr.P.C.
11. In support of his contention, he relies upon the following judgments:
i. Rajesh Sharma and others vs. State of U.P. and another AIR 2017 SC 3869;
ii. Social Action Forum for Manav Adhikar and another vs. Union of India, Ministry of Law and Justice and others (2018) 10 SCC 443;
iii. Mr. Haridas Salian vs. Smt. Rama R. Shetty 2018(2) Kar. L.R. 332 8 CRL.P.No.200687/2018
12. Per contra, Sri Deepak Kumar G., learned counsel for the petitioner/wife seeks to sustain the impugned proceedings and the order of the courts below on the following grounds:
i. Respondent Nos.2 to 5 had sought the quashing of the proceedings of the trial Court before this Court by filing Criminal Petition No.201111/2015 which came to be dismissed. Therefore, it is not open to them again to seek for quashing of the proceedings.
ii. Similarly, respondent Nos.1 to 5 therein sought for quashing of the criminal complaint filed by the petitioner in Crime No.11/2018 for the offence punishable under Section 498(A) IPC by filing Criminal Petition No.200641/2018 which came to be dismissed by this Court on 11.03.2019.
iii. The judgment in Rajesh Sharma's case is not applicable as that arose out of the proceedings under Section 498(A) IPC.9 CRL.P.No.200687/2018
iv. The trial Court is within its competence in passing the impugned order of maintenance that does not amount to violation of Section 12 of the DV Act and Rules 6, 9 and 12 of the Rules framed thereunder.
v. Respondents are unduly protracting the proceedings by filing multiple petitions and there are no grounds for the respondents to claim that they do not appear before the Court.
13. The Hon'ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor 2013(3) SCC 330 has laid down guidelines regarding quashing of the proceedings invoking Section 482 Cr.P.C. It was held that power to quash the proceedings invoking power under Section 482 Cr.P.C., shall be used sparingly. Further, in paragraphs-30 and 30.1 to 30.5 following guidelines were laid down to exercise jurisdiction. The said paragraphs reads as follows:
10 CRL.P.No.200687/2018
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C:
30.1 Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2 Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e., the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3 Step three: whether the material relied upon by the accused has 11 CRL.P.No.200687/2018 not been refuted by the prosecution/complainant: and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four: whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C.
Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
(Emphasis supplied) 12 CRL.P.No.200687/2018
14. Under the light of the above said judgment, now the Court has to see whether the matter is covered under the aforesaid judgment.
15. Regarding quashing of the proceedings in Criminal Miscellaneous No.152/2015, relying upon Section 12 of the DV Act and Rules, 6, 9 and 12 of the Rules framed thereunder, it was contended that the proceedings are abuse of process of Court and aforesaid Section and rules are not followed.
16. In fact, procedure of seeking domestic incidents report referred to in proviso to Section 12 of the DV Act relates to a final order to be passed under the said Section. Per contra, Section 23 of the DV Act empowers the Court to pass such interim orders as the Magistrate deems just and proper. Section 23 of the DV Act is not subject to Section 12 of the DV Act. Therefore, there is no merit in the contention that the proceedings amount to abuse of process of Court for 13 CRL.P.No.200687/2018 non-compliance of Section 12 of the DV Act or Rules 6, 9 and 12 of the rules framed thereunder.
17. Further, respondents challenged proceedings in Criminal Miscellaneous No.152/2015 and sought for quashing of the same by filing Criminal Petition No.201111/2015. Annexure-C goes to show that on hearing, the said petition was dismissed. Now this Court does not find any changed circumstance to consider quashing of the proceedings again in this petition.
18. Regarding personal appearance of the parties, relying upon the judgment of the Hon'ble Supreme Court in Rajesh Sharma's case referred to supra, it was contended that the proceedings are civil in nature, therefore, the Court cannot insist for personal appearance of the respondents. The said Rajesh Sharma's case arose out of criminal proceedings under Section 498(A) IPC therefore, the said judgment is not 14 CRL.P.No.200687/2018 applicable. Further, the judgment in Rajesh Sharma's case was later reviewed by the Larger Bench of the Hon'ble Supreme Court in Social Action Forum for Manav Adhikar's case referred to supra.
19. Perusal of the proceedings of the DV Act and the scheme of the Act makes it clear that the Act does not bar the Court from seeking personal appearance of the parties. Therefore, there is no merit in the contention that the Court cannot insist for personal appearance of the parties.
20. So far as the age of respondent No.2 for appearance, this Court in Criminal Petition No.201111/2015 granted liberty to her to file exemption application before the trial Court, but she did not appear and file application and only filed the application to recall the order issuing NBW. The records of this case show that respondent No.2 executed vakalat in this case in Gulbarga but, she contends that she cannot 15 CRL.P.No.200687/2018 appear before the trial Court due to her old age. That shows the reluctance of the respondents to appear before the trial Court which cannot be appreciated.
21. So far as the legal position of rejection of the application for recalling NBW, the learned counsel for the respondents submits that the respondents filed said application without appearing before the trial Court and the trial Court was forced to issue such order as the respondents were prolonging the proceedings.
22. In Mr. Haridas Salian's case relied upon by Sri Ravi B. Patil, learned counsel, though it was held that Section 70(2) Cr.P.C., does not contemplate personal appearance of the parties to seek recalling the NBW, ultimately in final order the accused was directed to appear before the trial Court and the non-bailable warrant was recalled.
16 CRL.P.No.200687/2018
23. Having regard to the said judgment and the aforesaid facts and circumstances, the petition is partly allowed.
24. Relief regarding quashing of the proceedings is hereby rejected. The order of the trial Court dated 22.06.2016 dismissing the application of the present first petitioner is hereby set aside. Non-bailable warrant issued by the trial Court against her is hereby recalled subject to the condition that petitioner No.1 shall appear before the trial Court on 13.08.2019. The trial Court is at liberty to proceed against petitioner Nos.2 to 4 herein to secure their presence in accordance with law.
Sd/-
JUDGE NB*