Karnataka High Court
Mrs Aradhana Sharda vs Mrs Geeta Rastogi on 23 September, 2023
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NC: 2023:KHC:37684
CRL.P No. 7483 of 2020
C/W CRL.P No. 1333 of 2018
CRL.P No. 6223 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL PETITION NO. 7483 OF 2020
C/W
CRIMINAL PETITION NO. 1333 OF 2018
CRIMINAL PETITION NO. 6223 OF 2018
IN CRL.P.NO.7483/2020:
BETWEEN:
MRS. ARADHANA SHARDA
W/O. SRI. SIDHANT RASTOGI,
AGED ABOUT 34 YEARS,
R/AT G-2004,
OBEROI SPLENDOR GRANDE,
JOGESHWARI, VIKHROLI LINK ROAD,
JOGESHWARI (E),
MUMBAI-400060
...PETITIONER
(BY SRI. AMAR CORREA, ADVOCATE)
AND:
Digitally MRS. GEETA RASTOGI
signed by
SUMA W/O. SURESH CHANDRA RASTOGI,
Location: AGED ABOUT 60 YEARS
HIGH R/AT NO.801, 6A, MAIN,
COURT OF
KARNATAKA ISRO LAYOUT,
BENGALURU-560078.
...RESPONDENT
(BY SRI. B.S.VENKATANARAYANA, ADVOCATE)
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE
ORDER/JUDGMENT DATED 20.11.2020 IN CRL.A.NO.596/2019
PASSED BY THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE (CCH-59) BANGALORE THEREBY DISMISSING THE APPEAL
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NC: 2023:KHC:37684
CRL.P No. 7483 of 2020
C/W CRL.P No. 1333 of 2018
CRL.P No. 6223 of 2018
FILED BY THE PETITIONER HEREIN UNDER SECTION 29 OF
DOMESTIC VIOLENCE ACT, 2005 VIDE ANNEXURE-A AND ETC.
IN CRL.P.NO.1333/2018:
BETWEEN:
1. ARADHANA SHARDA
DAUGHTER OF SRI NARENDRA SHARDA AND
WIFE OF SRI SIDHANTRASTOGI,
AGED ABOUT 34 YEARS,
RESIDING AT NO.G/2004,
OBEROI SPLENDOR GRANDE,
JOGESHWARI VIKHROLI LINK ROAD,
JOGESHWARI (E), MUMBAI-400060
2. NARENDRA SHARDA
SON OF LATE SRI PARASRAMJI SHARDA,
AGED ABOUT 68 YEARS,
RESIDING AT NO.G/2004,
OBEROI SPLENDOR GRANDE,
JOGESHWARI VIKHROLI LINK ROAD,
JOGESHWARI (E), MUMBAI-400060
3. USHA KIRAN SHARDA
WIFE OF SRI NARENDRA SHARDA,
AGED ABOUT 62 YEARS,
RESIDING AT NO.G/2004,
OBEROI SPLENDOR GRANDE,
JOGESHWARI VIKHROLI LINK ROAD,
JOGESHWARI (E), MUMBAI-400060
...PETITIONERS
(BY SRI. AMAR CORREA, ADVOCATE)
AND:
GEETARASTOGI
WIFE OF SRI SURESH CHANDRA RASTOGI,
AGED ABOUT 60 YEARS,
RESIDING AT NO.801, 6TH 'A' MAIN,
ISRO LAYOUT, BANGALORE-560018
...RESPONDENT
(BY SRI. B.S.VENKATANARAYANA, ADVOCATE)
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NC: 2023:KHC:37684
CRL.P No. 7483 of 2020
C/W CRL.P No. 1333 of 2018
CRL.P No. 6223 of 2018
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ORDER
DATED 02.12.2017, PASSED IN C.C.NO.30023/2017 BY XLIV ACMM
JUDGE, BANGALORE TAKING COGNIZANCE OF AND REGISTERING
THE ABOVE CASE IN ITS ENTIRETY AGAINST THE PETITIONERS
HEREIN (AS FOUND IN ANNEXURE-A)
IN CRL.P.NO.6223/2018:
BETWEEN:
MRS. ARADHANA SHARDA
W/O SRI SIDHANT RASTOGI,
AGED ABOUT 34 YEARS,
R/AT G/2004,
OBEROI SPLENDOR GRANDE,
JOGESHWARI-VIKHROLI LINK ROAD,
JOGESHWARI (E),
MUMBAI-400 060
...PETITIONER
(BY SRI. AMAR CORREA, ADVOCATE)
AND:
MRS. GEETA RASTOGI
W/O SURESH CHANDRA RASTOGI,
AGED ABOUT 60 YEARS,
R/O NO.801, 6A MAIN, ISRO LAYOUT,
BANGALORE-560078
...RESPONDENT
(BY SRI. B.S.VENKATANARAYANA, ADVOCATE)
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN CRL.MISC.NO.192/2016 PENDING ON THE FILE OF
V M.M.T.C., BANGALORE FILED AGAINST THE PETITIONER UNDER
SECTION 12 OF PROTECTION OF WOMAN FROM DOMESTIC
VIOLENCE ACT
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NC: 2023:KHC:37684
CRL.P No. 7483 of 2020
C/W CRL.P No. 1333 of 2018
CRL.P No. 6223 of 2018
THESE PETITIONS, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Criminal Petition No.6223/2018 is filed to quash the proceedings in Crl.Misc.No.192/2016 pending on the file of V Additional Metropolitan Magistrate, Traffic Court, Bengaluru under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (henceforth referred to as 'PWDV Act').
2. Criminal petition 7483/2020 is filed assailing the correctness of order dated 12.02.2019 passed by the V Additional Metropolitan Magistrate Traffic Court, Bangalore, in Crl. Misc. No.192/2016 as well as Order dated 20.11.2020 passed by the LVIII Additional City Civil and Sessions Judge, (CCH-59), Bangalore city in Criminal appeal No.596/2019.
3. The respondent herein being the mother in law of the petitioner initiated proceedings under Protection of Women from Domestic Violence Act 2005 ( in short 'PWDV Act' 2005) in Crl. Misc. No.192/2016 seeking the following reliefs:
1) Direction to the officer in charge of the Banashankari Mahila Police Station and Kumaraswamy Layout Police -5- NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 station to give protection to the petitioner and to assist her in implementing the order of the Court.
2) To pay maintenance to the petitioner of Rs.20,000/-
per month from the date of this application and continue to pay the same till the disposal of this petition.
3) To bring the respondent to deliver Stredhan of petitioner which has been falsely and illegally taken away and presently in the custody of respondent.
4) Direct the respondent to pay the legal charges and compensate the petitioner for the physical and mental harassment.
4. A perusal of the application filed by the respondent in Crl. Misc. No.192/2016 discloses that the petitioner was her daughter in law. The marriage of the petitioner with the son of the respondent was solemnized and performed on 22.11.2010 at Rajasthan. After the marriage, the petitioner and the son of the respondent were residing at Bangalore, while the parents of the petitioner were residing at Mumbai. The respondent alleged that the petitioner never shared a cordial relationship with her and her husband and used to insult them in abusive language -6- NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 in front of the neighbhours, family and friends. As such, the respondent never used to tell anything and never asked her to do any household work. The respondent alleged that the petitioner last visited the matrimonial house in October 2011, and stayed for four days for Diwali festival and left to Mumbai on 28.10.2011 and since then, she never visited her house. She further alleged that she noticed that there were differences between her son and the petitioner. She claimed that several efforts were made to resolve the issues with the petitioner and her parents. During the course of such meets, the petitioner, her parents and the relatives demanded crores of rupees to settle the matrimonial dispute. As a result, she claimed that she and her husband were exposed to untold mental torture. She alleged that she was humiliated and insulted in public by the relatives and friends of the petitioner. She alleged that when she and her family refused the illegal and unlawful demands of the petitioner, her parents and relatives started threatening her and her family. She alleged that due to the continuous harassment by the petitioner and her family, she suffered mental shock and went to depression and discontinued her job as High School teacher at Aurobindo Memorial School -7- NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 situated at Banashankari, Bangalore and was forced to quit the job on 19.05.2012. She claimed that she and her family members were called to Mumbai on 05.05.2013 to resolve the differences between her son and the petitioner which was mediated by the uncle of the petitioner. At the meeting, the petitioner and her family members threatened the respondent and her family with dire consequences, like filing false and frivolous criminal cases such as dowry harassment, cruelty, domestic violence, etc., and would get them arrested under those cases. She claimed that despite the threats, they refused the illegal demands of the petitioner. She claimed that the petitioner and her parents started threatening through various persons including a person named Mrs.Madhuri Kaushik. She alleged that on 09.01.2014, when her husband and son were traveling in a Maruthi 800 car on 09.01.2014, they were chased and attacked by bike borne goons who stopped the car and threatened them in filthy language and damaged the car. She claimed that despite these, she still tried to amicably resolve the matrimonial dispute between her son and the petitioner and they met again on 26.01.2014. On the said date, she alleged that the petitioner and her family members stepped up their -8- NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 illegal and unlawful demands, which they refused to accept. Following this, the petitioner lodged a complaint before Megharwadi police station, Mumbai and another complaint before the Railway Mobile Court, Andheri, Mumbai on 05.05.2014 under the Protection of Women from Domestic Violence Act, 2005. She claims that in the guise of investigation, the petitioner made the respondent and her family members to travel to Mumbai and face frequent interrogation by the police resulting in mental trauma, deterioration of health, harassment and depression. She claimed that the anticipatory bail sought for was granted by the Sessions Court, though the petitioner and her parents made hectic efforts to get them arrested. She alleged that the petitioner and her family members had hired goons in Bangalore to assault her and her family members on 16.12.2014. She claimed that she received a call from a person in Mumbai, who threatened her and her family members. She claimed that on 09.04.2015, the police from Mumbai swooped down on her house to draw an inventory of certain ornaments and articles in her house and at her bank locker in Canara Bank. She alleged that petitioner had colluded -9- NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 with the police in falsely claiming that the jewellery given at the time of marriage was in the custody of the respondent. She claimed that petitioner falsely and illegally claimed that the ornaments in the house and bank locker belonged to her. She alleged that the petitioner took an order of the Court and stealthily received the interim custody of jewellery and articles by playing fraud on the Court. With these and other allegations, the respondent claimed that she was exposed to domestic violence and therefore sought the indulgence of the Court for suitable orders.
5. This petition was contested by the petitioner, who admitted that she was given in marriage to the son of respondent and that there were matrimonial disputes between them. She alleged that many of her gold ornaments and other jewellery were lying with the respondent and that Court had granted an order to secure all the gold and silver jewellery mentioned in a list filed before it. Pursuant to an order passed by the Court, the police from Meghawadi police station came down to Bangalore, drew up an inventory and after the articles belonging to the petitioner, as per the list mentioned above, were identified, it was given to the interim custody of the
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 petitioner. She contended that there was no domestic violence as alleged by the respondent. The petitioner admitted that she last visited the house of respondent on 28.10.2011 and from then, several meetings were convened to settle the matrimonial matters amicably. She also contended that the instant petition filed by the respondent was a counter blast to the petition filed by her before the Court in Mumbai under the Protection of Women from Domestic Violence Act, 2005.
6. The Trial Court proceeded with the Trial of the application at which stage, the present petition is filed challenging the maintainability of the application under section 12 of Protection of Women from Domestic Violence Act, 2005. It is contended by the learned counsel for the petitioner that a perusal of the entire complaint does not show any domestic violence as defined under Section 3 of the Protection of Women from Domestic Violence Act, 2005. He also contends that the respondent also admitted that the petitioner last visited the shared household only in October 2011, while the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed in the year 2016. He therefore contends that the application is clearly a counter blast to the
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 petition filed by the petitioner in the Court at Mumbai under the Protection of Women from Domestic Violence Act, 2005. He contends that the petitioner had given a list of all the jewellery belonging to her which were in the custody of the respondent and the Court at Mumbai, had passed an order to seize only those articles mentioned in the list. He contends that Mumbai police came down to Bangalore, searched the house of the respondent as well as the bank locker and after identifying the gold ornaments and silver articles belonging to the petitioner mentioned in the list, the same was taken away by the police and produced before the Court at Mumbai. He further submits that the seizure was in the presence of the respondent and the police, after drawing the inventory collected only those items mentioned in the list and not others. He therefore, contends that the instant proceeding initiated by the respondent is clearly an abuse of process of law and therefore, prays that this Court may exercise jurisdiction under Section 482 of Code of Criminal Procedure or Article 226 of the Constitution of India as held by the Hon'ble Apex court in the case of State of Haryana and others Vs. Bhajan Lal and others - [(1992) SCC (Cri.) 426.
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7. Per contra, the learned counsel for the respondent contends that the petition under Section 482 of the Code of Criminal Procedure is not maintainable in respect of an application filed under Section 12 of Protection of Women from Domestic Violence Act, 2005. He contends that a Co-ordinate bench of this Court has held that the Protection of Women from Domestic Violence Act, 2005 is a special legislation and an intermediate legislation between Civil laws, such as, Guardians and Wards Act, Hindu Minority and Guardianship Act and Hindu Marriage Act, etc., and Sections 361, 498(A) and similar such offences under the Indian Penal Code. He contends that the Kerala High Court in the case of Dr.V.K. Vijayalekshmi Amma and another Vs. Bindu V and others, reported in 2009 SCC Online Ker 6448 had held that any order under Sections 18, 21 and 22 of the Protection of Women from Domestic Violence Act, does not result in any criminal liability and that they are civil in nature and therefore, this Court cannot exercise jurisdiction under section 482 of Code of Criminal Procedure. He also relied upon the judgment of the Hon'ble Apex Court in the case of Kamatchi Vs. Lakshmi
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 Narayanan - 2022 SCC Online SC 446 where the Hon'ble Apex Court in the said case held that :
"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take congnizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with the law, if that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the court or Magistrate in issuing process or taking congnizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the court or Magistrate the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a court of law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in Section 468 of the Code with issuing of process or
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 taking of congnizance by the court may make it unsustainable and ultra virus Article 14 of the Constitution.
8. Learned counsel therefore contended that the present petition is not maintainable. He also invited the attention of the Court to the definition of "Domestic Violence"
as set out in Section 3 of the Protection of Women from Domestic Violence Act, 2005 and contends that even if the petitioner was residing in the shared household, but if the respondent was meted out with mental or physical cruelty or harassment, harm, injuries or endangers an aggrieved person with a view to force her or any other person related to her to meet any unlawful demand in dowry or any other property of valuable security, shall be held to be a victim of domestic violence. He contends that in the instant application, the respondent has set out various circumstances which resulted in harassment, injury, mental and physical cruelty and danger to her. He therefore contends that the respondent is entitled to pursue the application filed before the Trial Court.
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9. I have considered the submissions of the learned counsel for the petitioner and the respondent.
10. At the outset, if the entire application filed by respondent No.2 under Section 12 of Protection of Women from Domestic Violence Act, 2005 is perused, it only refers to certain marital disputes between the son of the respondent and the petitioner. It also refers to steps taken by their respective parents to settle the disputes amicably. There are atleast four to five instances referred in the application, where the respondent, her family members as well as the petitioner and her family members and the relatives attempted to resolve the matrimonial dispute. It is claimed that at many of these meetings, the respondent was threatened of harm, if the demands made by the petitioner/her family members were not met. It is not unnatural for the parents/relatives/friends to take sides with their children particularly when they sit for resolution of a matrimonial dispute, where they accuse each other of marring the relationship. There could be emotional outbursts and sparks are bound to fly at such meetings and if not doused in time, may result in a catastrophe. Fortunately, in the instant
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 case, there has been no physical harm to either side. The respondent being a teacher in a school, perhaps was unable to withstand the ill effects of a marred marriage of her son. However, she cannot claim that due to the demands and threats made at such meetings, she suffered depression, trauma etc. and accuse the petitioner of indulging in domestic violence. The allegation that the son and husband of respondent were chased by bike borne goons, is not corroborated by any acceptable material. When Megharwadi police came down to Bangalore to seize certain articles belonging to the petitioner, pursuant to an order of the Court at Mumbai. This cannot be considered as an act of "Domestic Violence" as alleged by the respondent. Except these allegations, there are no other allegations which constitute domestic violence as defined under Section 3 of the Protection of Women from Domestic Violence Act, 2005. An important circumstance that mars the case of the respondent is that she admitted in the application that the petitioner last visited the shared household during October 2011, which makes it clear that between October 2011 till 2016, there is a hiatus between the petitioner/her family members and the respondent/her
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 family members. Thus, the question of endangering the life and limb of the respondent and her family members does not arise. The claim of learned counsel for respondent that unlawful and illegal demand was made by the petitioner and her family members, without giving clear and specific details, do not fit into Section 3(b) of Protection of Women from Domestic Violence Act, 2005, for it to be considered as domestic violence. Section 3(b) of Protection of Women From Domestic Violence Act, 2005 is incorporated in the Act only to meet a situation where unlawful demand for any dowry or property and valuable security is made against the aggrieved person. In the present case, there is no demand for dowry and the alleged demand by the petitioner is towards the alimony for putting an end to the matrimonial dispute between the son of respondent and the petitioner. Therefore, ex-facie there is nothing to say that the petitioner and her family members had caused any act of domestic violence.
11. Now coming to the pivotal question whether this court can exercise jurisdiction under Section 482 of Code of Criminal Procedure, to set at naught the proceedings initiated
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005, it is apposite to refer the judgment of Hon'ble Apex Court in the case of State Of Haryana referred supra, where it was held that the Court exercising jurisdiction is not shorn of the power under Articles 226 and 227 of the Constitution of India and whenever Court is confronted with a situation where the provision of any penal law is abused, it would unhesitatingly exercise jurisdiction to set at naught such proceeding.
12. In the case on hand, though it is contended that the Hon'ble Apex Court in the case of Kamatchi supra held that under Section 482 of Code of Criminal Procedure, the High Court cannot exercise jurisdiction to quash the proceedings under Section 12 of Protection of Women from Domestic Violence Act 2005, in the instant case, the proceedings before the Trial Court has moved on from the stage of issuing notice. The consequence of non-compliance of an order under Sections 21 and 22 is provided in Section 31 of the Act of 2005, which reads as follows :
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 "31. Penalty for breach of protection order by respondent.--
(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions."
13. Therefore, it cannot be held that the provisions under the PWDV Act 2005 are civil in nature. Therefore, when the Court is confronted with a false case or a case which does not constitute domestic violence as defined under the Protection of Women from Domestic Violence act 2005, the
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 same cannot continue, as that would result in nuisance and harassment of the petitioner. Therefore, the proceedings against the petitioner cannot continue.
14. In that view of the matter, Crl.P.No.6223/2018 this petition is allowed. The impugned prosecution of the petitioner in Crl.Misc. No. 192/2016 initiated by the respondent pending trial before the V Additional Metropolitan Magistrate Traffic Court, Bengaluru under Section 12 of Protection of Women from Domestic Violence Act, 2005 is quashed.
In Crl.P.No.1333.2018
15. The petitioners have challenged the prosecution launched against them in C.C.No.30023/2017 for the offences punishable under Sections 120B, 468, 471, 420 of Indian Penal Code (henceforth referred to as 'IPC'), pending trial before the XLIV Additional Chief Metropolitan Magistrate, Bengaluru.
16. The respondent filed a private complaint under Section 200 of Criminal Procedure Code accusing the petitioners of conspiring with the police in Mumbai in seizing
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 certain articles belonging to her, which were given to her by her husband. She also alleged that the petitioners had threatened her, in respect of which, a case was registered against the petitioners with K.S.Layout Police station. She also alleged that the petitioner No.1 had sent innumerable mails to her son's office at Kormangala and defamed him. She also claimed that the petitioners had conspired with the local postmen and forged the signature of her son, to seem as if, her son had received a parcel containing a summons issued by the Mumbai Court, without delivering the parcel. She alleged that this was done to create false evidence against her son to be produced before the Court for cancellation of bail. She alleged that her son applied through the Right to Information Act before the Chief Post Master General of Karnataka about the forgery and that the Chief Post Master General, issued a letter stating that the postman had forged the signature of her son, without delivering the parcel and that disciplinary action was initiated by the department against the postman. She therefore, alleged that the postman colluded with the petitioners in forging the signature of her son, so that the
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 conditional bail granted by the Court in Mumbai was violated and the police could arrest the son of the respondent.
17. The Trial Court referred the private complaint for investigation and report under Section 156(3) of Cr.P.C. The jurisdictional police after investigation filed a 'B' report stating that there were matrimonial disputes between the petitioners and respondent's son and that the private complaint was an attempt to settle personal scores by the respondent against the petitioners. The Trial Court issued notice to the respondent before accepting the 'B' report. The respondent objected to the acceptance of the 'B' report by filing a private complaint/protest petition. The Trial Court recorded the sworn statement of the respondent and in terms of the order dated 02.12.2017, held as follows:
"It is alleged that, the daughter-in-law of the complainant has filed a false dowry harassment case against herself as well as her son before Maghawade Police Station at Mumbai. As such, a criminal case was registered against complainant as well as her son. During the course of investigation many valuable articles were seized from the house of complainant, though those articles were not at all in the list given by her daughter-in-law to the concerned Police
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 Station. It is alleged that, these accused No.1 to 3 are in the habit of blackmailing the complainant and her son. Therefore, she has lodged a complaint against accused No.1 to 3 before K.S.Layout Police Station. In the mean time, Bombay Court has issued the summons against complainant and her son which was not all served on them. On the contrary, at the instigation of accused No.1 to 3 officials of J.P.Nagar post office branch, have forged the signatures of complainant as well as her son on the summons and showed it before the concerned court as summons served in order to issue N.B.W. against this complainant and her son. Therefore, the complainant had to lodge complaint before the Chief Post Master General of Karnataka, wherein accused No.4 and 5 were held guilty on due enquiry. Hence, this complaint for the aforesaid offences.
In support of her complaint, the complainant has filed copy of FIR of Meghawade Police Station, list of articles, a copy of complaint lodged before K.S.Layout Police Station, endorsement issued by the police, registered post acknowledgment, information sought from the postal department to furnish the status of summons issued by the Bombay Court, copy of application seeking information about status of service of summons on complainant and her son from the postal department under RTI along with
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 explanation of postal department by saying that, on careful observation, delivery slip reveals that, the article has been shown as delivered by forging the signature of the addressee without visiting the house and thus the GDSMD appears to have not made any efforts to make delivery of the article to the correct address.
From these documents, it can be noticed that, there is a prima facie documents against accused No.1 to 3 for their instigation to commit the alleged offences and prima facie case against accused No.4 and 5 for having shown wrong delivery status of service of summons in connection with complainant and her son.
Therefore, a full-fledged trial has to be conducted and the same needs to be answered by the accused persons. Therefore, it would be just and proper to take cognizance for the aforesaid offences against accused persons. Hence, I proceed to pass the following:"
18. The Trial Court took cognizance of the offences punishable under Sections 120B, 468, 471, 420 of IPC and registered C.C.No.30023/2017 and issued process to the petitioners. The petitioners appeared before the Trial Court and were granted bail.
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19. The petitioners being aggrieved by the order taking cognizance and order issuing process, have filed this petition, challenging the prosecution initiated against them.
20. The learned counsel for the petitioners though urged several grounds in support of the petition, the only striking ground was that the petitioners were all residents of Mumbai which was outside the jurisdiction of Trial Court and therefore, the Trial Court ought to have without any exception, followed the procedure contemplated under Section 202 of Cr.P.C. He contended that the order taking cognizance was primarily based on the report of the Chief Post Master General of Karnataka, wherein it was held that the two post men/accused Nos.4 and 5 were guilty of forging the signatures of the respondent and her son, acknowledging the receipt of a notice issued by the Mumbai Police asking them to appear before them and cooperate in the investigation. He submitted that the Chief Post Master General of Karnataka was not even cited as a witness in the protest petition filed and therefore the Trial Court before taking cognizance must have taken steps to summon the Chief Post Master General of Karnataka and the report of the said officer must have been marked through him
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 before passing an order taking cognizance of the offence against the petitioners.
21. In the reply to this contention, learned counsel for the respondent submitted that the report of the Chief Post Master General of Karnataka was furnished to the respondent and the same was marked in evidence and that the Trial Court rightly found it sufficient to take cognizance and issued process to the petitioners. He submitted that the respondent and her son were granted bail before the Court at Mumbai subject to the condition that the respondent and her son appeared before the police whenever required for investigation. He contended and that the notice issued by the police to the respondent and her son was not even delivered to them and that the petitioners colluded with the postmen, in forging the signature of respondent and her son. He therefore, submitted that the petitioners had an oblique intent in conspiring with the postmen, so that the bail granted to the respondent and her son could be cancelled by jurisdictional police at Mumbai and the respondent and her son could be arrested. He submitted that the Trial Court did not commit any error in taking cognizance, as it was writ large on record that it was the
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 petitioners in collusion with the postmen who had forged the signature of respondent and her son.
22. I have considered the submissions made by learned counsel for the petitioners as well as learned counsel for respondent.
23. The petitioners are undoubtedly, residents of Mumbai which is outside the jurisdiction of the Trial Court. Section 202 of Cr.P.C. defines the procedure to take cognizance of an offence by a person, who is residing at a place beyond jurisdiction of the Court which reads as follows:
"202. Postponement of issue of process:
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding;
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 PROVIDED that no such direction for investigation shall be made--
1. where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
2. where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath;
PROVIDED that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-Section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
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24. The Trial Court must have therefore, conducted an enquiry to be satisfied that the allegations made against the petitioners were prima facie worthy of trial and for this purpose, the respondent must have cited and examined the Chief Post Master General of Karnataka as one of the witnesses and at whose instance, the enquiry report conducted by him could have been marked.
25. Section 202 Cr.P.C. also warrants that at an enquiry, the Magistrate may, if he thinks fit, take evidence of witnesses on oath. Therefore, it is evident from the order taking cognizance that there was no adequate evidence before the Trial Court for the Magistrate to exercise jurisdiction to take cognizance against the petitioners who were residing outside his jurisdiction.
26. The Hon'ble Apex Court in the case of Vijay Dhanuka and Others Vs. Najima Mamtaj and others - (2014) 14 SCC 638 held at paragraph Nos.11, 12 and 13 as follows:
11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 beyond the area in which he exercises his jurisdiction"
and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" was inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd June, 2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 finding out whether or not there was sufficient ground for proceeding against the accused."
12. The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. In view of the decision of this Court in Udai Shankar Awasthi v. State of Uttar Pradesh. (2013) 2 SCC 435, this point need not detain us any further as in the said case, this Court has clearly held that the provision aforesaid is mandatory. It is apt to reproduce the following passage from the said judgment:
"40. The Magistrate had issued summons without meeting the mandatory requirement
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
(Underlining ours)
27. Similarly, in Birla Corporation Limited Vs. Adventz Investments and Holdings Limited and others [(2019) 16 SCC 610], the Hon'ble Apex Court was considering a case of taking cognizance under Section 202 of Cr.P.C and it held that there is no escape for the Magistrate to comply the provisions under Section 202 of Cr.P.C.
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018
28. The Hon'ble Apex Court in the case of SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020 In Re:
EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881 held at paragaraph Nos.11 and 12 as under:
"11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr. where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation (supra), the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici.
12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process. Section 145 of the Act provides
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section
202. He suggested that Section 202 (2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section
202."
29. Therefore, the exercise of jurisdiction by the Magistrate in taking cognizance against the petitioners deserves to be set aside and the matter deserves to be remitted back to the Trial Court to comply with Section 202 of Cr.P.C.
30. Accordingly, the Crl.P.No.1333/2018 is allowed- in-part and the order dated 02.12.2017 passed by XLIV Additional Chief Metropolitan Magistrate, Bengaluru and registration of C.C.No.30023/2017 is set aside and the matter is remitted back to the Trial Court to comply with Section 202
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 of Cr.P.C. It is open for the respondent to take appropriate steps to secure presence of Chief Post Master General and any other witness and record his/her statement at the enquiry and the Trial Court may thereafter proceed in accordance with law.
31. Crl.P.No.7483/2020 is filed challenging the order dated 20.11.2020 passed by the LVIII Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.596/2019 dismissing the appeal filed by the petitioner herein under Section 29 of the Protection of Women from Domestic Violence Act, 2005.
32. The petitioner filed an application in Crl.Misc. No.192/2016 under Section 91 of Code of Criminal Procedure to direct the respondent to produce her account statement and income tax returns and returns of her son. This application was allowed by the Trial Court and the respondent was directed to produce the account statement bearing No.2643101000163 held at Canara Bank, ISRO layout from 21.11.2009 to 14.11.2018. Being aggrieved by the said order, the petitioner filed Crl.A. No.596/2019 before the Sessions Court, which dismissed it in terms of the order dated 20.11.2020. The
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NC: 2023:KHC:37684 CRL.P No. 7483 of 2020 C/W CRL.P No. 1333 of 2018 CRL.P No. 6223 of 2018 petitioner is therefore before this Court challenging the aforesaid order.
33. Now that this Court had quashed the proceedings in Crl.Misc. No.192/2016, therefore, the question of entertaining this petition would not arise.
In view of the above, Crl.P.No.7483/2020 does not survive for consideration and the same is dismissed.
Sd/-
JUDGE NJ/HJ List No.: 1 Sl No.: 7