Madhya Pradesh High Court
Smt. V. Krishnamma vs Garima Bais on 10 December, 2024
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2024:MPHC-IND:35312
1 MCRC-39973-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 10th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 39973 of 2024
SMT. V. KRISHNAMMA AND OTHERS
Versus
GARIMA BAIS
Appearance:
Shri Vinay Pratap Singh - Advocate for petitioners.
Shri Sudhir Dandwate- Advocate for respondent.
ORDER
The present petition under Section 528 of BNSS (Section 482 of CrPC) has been preferred by the petitioners / accused for quashment of proceedings of 28th of May, 2024 filed by respondent /complainant before the Judicial Magistrate First Class, Indore under the provisions of 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as 'the DV Act of 2005') pending before the Court of JMFC, Indore in MJCR No. 18434 of 2024 (new No.1860/2024).
Main allegation of petitioners is that the petitioners being the in-laws of the respondents, have been living separately and they have never resided in a ''shared household'' with the respondent. After marriage, the respondent has been living in a rented premises in Bangalore which was rented in her own name. Thereafter, the respondent also established her business the same address which clearly indicates her independent residence with her husband.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-12-2024 17:57:53NEUTRAL CITATION NO. 2024:MPHC-IND:35312 2 MCRC-39973-2024 No case is made out for commission of domestic violence is made out against the petitioners.
A preliminary objection has been raised by the learned counsel for the complainant to the effect that this petition under Section 482 of the Cr.P.C for challenging proceedings under the DV Act of 2005 pending before the trial Court is not maintainable since as of now only application under Section 12 of the DV Act of 2005 has been filed by the complainant and no order has been passed under any Section of the Act. As long as the proceedings are continuing, they are of civil nature and partake the character of criminal proceedings only upon passing of an order under the Act, 2005 which is then breached. Therefore, the instant petition be dismissed as not maintainable.
On the other hand, learned counsel for the petitioners has submitted that the proceedings under the DV Act of 2005 are governed by Cr.P.C and for quashment of criminal proceedings, a petition under Section 482 of the Cr.P.C would certainly be maintainable. The inherent power of the High Court under Section 482 of the Cr.P.C can be invoked for redressal of grievance of any party at any time and it is not mandatory to wait for an order to be passed under the DV Act of 2005 before invoking the jurisdiction of this Court. Thus, the present petition is maintainable in the eyes of law.
Heard learned Counsel for the parties. Perused the record as well as relevant provisions of DV Act of 2005.
"12. Application to Magistrate. --(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-12-2024 17:57:53 NEUTRAL CITATION NO. 2024:MPHC-IND:35312 3 MCRC-39973-2024 Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
18. Protection orders. --The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-12-2024 17:57:53 NEUTRAL CITATION NO. 2024:MPHC-IND:35312 4 MCRC-39973-2024 the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection order.
19. Residence orders. --(1) While disposing of an application under sub- section (1) of section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order. (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (7) The Magistrate may direct the officer in-charge of the police Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-12-2024 17:57:53 NEUTRAL CITATION NO. 2024:MPHC-IND:35312 5 MCRC-39973-2024 station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
20. Monetary reliefs .--(1) While disposing of an application under sub- section (1) of section 12,the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides. (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
21. Custody orders.--Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-12-2024 17:57:53 NEUTRAL CITATION NO. 2024:MPHC-IND:35312 6 MCRC-39973-2024 arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
22. Compensation orders. --In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.
28. Procedure.--(1) Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
In the case of Khalid Amin Kohli vs. Union Territory of Jammu and Kashmir and Others, CRM(M) No. 317 of 2020 decided on 21-07-2023 the High Court of Jammu and Kashmir has categorically held that a petition under Section 482 of the Cr.P.C cannot be filed for the purpose of challenging the proceedings initiated under Section 12 of the Act, 2005. The relevant paragraph of the said judgment reads as under :-
"19. In view of the above, this Court is of the considered view that a petition under section 482 Cr.P.C. cannot be filed for the purpose of challenging the proceedings initiated under section 12 of the Act of 2010 or the orders passed thereunder. If the respondent or the aggrieved person is aggrieved of any order passed by the appellate court in terms of section 29 of the Act of 2010, the respondent or aggrieved person can approach the High Court under Article 227 of the Constitution of India. This court is of the considered view that the present petition under section 482 Cr.P.C is not maintainable.''
20. As this Court has held that petition under section 482 of the Code for quashing the proceedings in terms of the Act of 2010 is not maintainable in respect of the proceedings arising out of Domestic Violence Act or the orders passed thereunder, now this court would examine whether the interference of this Court is warranted in the present case under article 227 of the Constitution of India."
In view of the provisions of DV Act of 2005 as well as in the light of Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-12-2024 17:57:53 NEUTRAL CITATION NO. 2024:MPHC-IND:35312 7 MCRC-39973-2024 judgment cited above, it appears that inherent power of the High Court under Section 482 of CrPC can be invoked only for redressal of grievance arising from the order passed in the proceedings under the DV Act of 2005. As long as the proceedings are continuing before the Magistrate and no final order has been passed therein under the DV Act, the inherent power under Section 482 of CrPC cannot be invoked meaning thereby that the proceedings under the DV Act of 2005 cannot be challenged by way of petition under Section 482 of CrPC and it is only an order passed therein which can be so challenged.
In the case at hand, the petitioners prayed for quashment of criminal proceedings filed by the complainant in the shape of complaint pending before the Magistrate concerned, therefore, in absence of any final order having been passed under the provisions of DV Act of 2005, this petition deserves to be dismissed as the same is not maintainable in the eyes of law.
(HIRDESH) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 13-12-2024 17:57:53