Delhi District Court
Sh. D.D. Sharma vs Ms. Rohini on 2 September, 2015
Criminal Appeal No.22/15
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 22/2015
Under Section : 12 of Protection of Women From
Domestic Violence Act, 2005.
Police Station : Bhajanpura
Case No. : V-429/13
Unique I.D. No. : 02402R0266482015
In the matter of :-
1. Sh. D.D. SHARMA
S/o. Late N.R. Sharma,
R/o. H.No.C-12/412,
Yamuna Vihar, Delhi-53.
2. Mrs. SHAKUNTALA SHARMA
W/o. Sh. D.D. Sharma,
R/o. H.No.C-12/412,
Yamuna Vihar, Delhi-53. ..............Appellants
VERSUS
Ms. ROHINI
W/o. Sh. S.K. Sharma,
R/o. C-6/198, Yamuna Vihar,
Delhi-53. ..............Respondent
Date of Institution : 31.07.2015
Date of receiving the case in this court : 01.08.2015
Date of reserving order : 26.08.2015
Date of pronouncement : 02.09.2015
Decision : Appeal is dismissed.
JUDGMENT
1. This is an appeal preferred against the order dated 03.06.2015, passed by trial court in a case titled as Rohini v. Sandeep Kumar Sharma & Ors., bearing case no.V-429/13, under Section 12 of The Protection of Women from Domestic Violence Act, 2005.
2. Briefly stated, the relevant facts giving rise to this appeal are that Page 1 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.22/15 respondent herein had filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against her husband, appellants herein and her brother-in-law. The appellants are parents-in-law of the respondent. Respondent made several allegations against her husband and in-laws regarding demand of dowry, coupled with threats, harassment and abusing at her matrimonial house. She also alleged about cruel behaviour of her husband, while she was residing with him at West Bengal during May 2004. She gave birth to a child and thereafter, she came back to Delhi in the month of October 2006 and thereafter, she was allegedly thrown out of her house and was compelled to reside at her parental house. Respondent prayed for several reliefs including return of her Stridhan, which are alleged to be in the possession of her in-laws. She also prayed for compensation as well as monthly maintenance. She also prayed for alternate accommodation as well as protection orders.
3. The trial court called for DIR and issued notice of this application to the alleged persons. Appellants herein appeared before the trial court and filed their written statement on 23.06.2012. An interim order was passed by trial court against husband of respondent/ complainant to pay interim maintenance vide order dated 29.08.2013. Thereafter, appellants herein moved an application seeking dropping of the proceedings against them. Trial court vide impugned order dismissed this application on the grounds that the appellants did not challenge the summoning order and there were a number of allegations leveled by the complainant against them. Trial court also observed that the case was pending at the stage of Page 2 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.22/15 evidence and the contentions raised by the appellants could be decided only after leading the evidence.
4. Being aggrieved of the impugned order, appellants have preferred this appeal on the following grounds :-
● That the trial court did not appreciate whether the petition of the respondent was time barred against the petitioners and the impugned order is based on surmises and conjectures. ● That the trial court had totally ignored the law in question raised by the petitioners under Section 468 Cr.P.C. and the trial court did not appreciate the facts after considering the documents, judgments and written arguments available on record and was pleased to dismiss the application of the petitioners.
● That trial court did not appreciate the fact that respondent had admitted in her application that since May 2007, she was residing separately from her husband and the appellants and thereafter, she had filed this application in the year 2012 i.e. after 5 years from the date of her separation and her application was time barred.
5. On behalf of appellants, reliance was placed upon several judgments, which are as follows :-
● In Jaswinder Kaur & Ors. v. State of Punjab, II (2014) DMC 238 (P & H), a complaint under Section 12 of the Act was quashed by High Court of Punjab and Haryana on the grounds that there were no sufficient grounds for proceeding against the petitioners, who were family members of husband of the complainant. ● In Sejal Dharmesh Ved v. State of Maharashtra Ors. 2014 ALLMR 363, High Court of Bombay upheld a decision given by the Court of Sessions to dismiss the application under Section 12 of the Act on the ground of maintainability and absence of Page 3 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.22/15 domestic relationship between the parties.
● In Japani Sahoo v. Chandra Sekhar Mohanty,(2007) 7 SCC 394, Supreme Court held that limitation under Section 468 Cr.P.C is applied from the date of filing of complaint or initiating criminal proceeding. In this case, Supreme Court was dealing with the question of relevant date to be considered for the purpose of computing the period of limitation under Section 468 Cr.P.C in respect of offences under Section 294 and 323 IPC. ● In Inderjit Singh Grewal v. State of Punjab and Anr. (2011) 12 SCC 588, Supreme Court observed that complaint under the provisions of the Act could be filed only within a period of one year from the date of the incident by virtue of provision under Section 468 Cr.P.C. The Court made this observation taking view of Sections 28 and 32 of the Act read with Rule 15 (6) of The Protection of Women from Domestic Violence Rules 2006.
6. On the other hand, respondent contested this appeal and filed her reply thereby supporting the order passed by the trial court. She reiterated the facts relating to allegations made by her against the appellants as well as her husband. She took plea that the appellant have committed economic abuse by not returning her Stridhan and by compelling her to stay away from her matrimonial home.
7. Counsel for respondent also placed reliance on several case laws, which are as follows :-
● In Ritesh Rati Lal Jain v. Sandhya, 2014 (1) RCR (Criminal) 813, Bombay High Court refused to quash the proceedings initiated under the Act.
● In Lilaram Mulchand Khemnani & Ors. v. State of Gujarat, Criminal Miscellaneous Application No.12274 of 2013, decided Page 4 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.22/15 by High Court of Gujarat on 01.08.2013, the Court dealt with the question of limitation for filing an application under Section 12 of the Act. The Court also referred to the decision given by Apex Court in the case of Inderjit Singh Grewal (supra) and observed that in view of factual allegations made by the complainant the matter required evidence so as to give a decision in respect of limitation. The Court while upholding the decision of ld. Magistrate to continue with the proceedings made following observations :-
"The Court is of the considered view that the aspect of limitation if one reads closely, the concerned section i.e. Section 468 is presupposing the factum of cognizance of offence and in the instant case, if one takes a close look at the provision of Protection of Women from Domestic Violence Act, 2005, then one would safely conclude that the act provides for remedial measures to be enforced by the Magistrate for redressal of grievances of the woman, who has been afflicted on account of domestic violence made to her and in case of any offence or disobedience, which could be classified an offence under the Act, then in my view the factum of cognizance and/or action would ripe. Therefore, this issue also needs to be born in mind while considering the arguments and submissions qua the proceedings being time barred."
● In Maroti v. Gangu Bai, Criminal Writ Petition No.542/2010, decided on 09.08.2011, Bombay High Court dealt with the question of delay in filing the application under Section 12 of the Act as it was alleged that the complainant was residing separately for more than 12 years from the petitioner and hence, she was not entitled to bring this application. The court held that if the deprivation continued after the Act came into the force, then the aggrieved person/complainant was entitled to approach the Page 5 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.22/15 Magistrate with application under Section 12 of the Act. ● In Sabana v. Mohd. Talib Ali, Criminal Revision Petition No. 362/2011 decided on 30.10.2013, Jodhpur High Court dealt with the question that whether the provisions of the Act could be applied retrospectively, if aggrieved party was divorced by the respondent prior to the Act coming into the force and the court gave its answer in affirmative.
8. Ld. counsels for appellant emphasised on the observations made by Supreme Court in the case of Inderjit Singh Grewal (Supra) to submit that provisions of Cr.P.C are applicable to proceedings under the Act and therefore, Section 468 Cr.P.C. also applies so as to provide for a limitation to file an application under Section 12 of the Act. However, from the careful reading of the relevant part of the observations made by Supreme Court in the aforesaid case, one can find that such observations were made taking view of Sections 28 and 32 of the Act read with Rule 15 (6) of The Protection of Women from Domestic Violence Rules, 2006. Sections 28 of the Act provides that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offence under Section 31 shall be governed by the provision of Cr.P.C. Section 32 of the Act says that offence defined in Section 31 shall be cognizable and non bailable. Rule 15 (6) of the Rules provides that when charges are framed under Section 31 or in respect of offences under Section 498-A IPC or any other offence not summarily triable, the court may separate the proceedings for such offence to be tried in the manner prescribed under Cr.P.C.
9. Section 468 Cr.P.C provides for limitation to initiate prosecution for an offence. However, the Act in question is a composite Act, which Page 6 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.22/15 apart from defining an offence under Section 31, also provides for several remedies, which are civil in nature. An application under Section 12 of the Act is filed for seeking one or more reliefs under the Act, which may include relief for an order for payment of compensation/damages or protection order under Section 18, residence order under Section 19, maintenance order under Section 20 and custody orders under Section 21 of the Act. For these kind of reliefs, no particular time period has been defined in the Act. Code of Criminal Procedure cannot be applied in respect of these reliefs, which are civil in nature. Section 468 Cr.P.C would apply only in respect of an offence defined under Section 31 of the Act. The observations made by Supreme Court has to be read accordingly. Such observations cannot be interpreted in the manner so as to change the nature of civil reliefs as provided under this Act into prosecution for criminal offence and to provide a limitation under Section 468 Cr.P.C for these civil remedies. Therefore, I do not find any merit in the contentions raised on behalf of appellants regarding bar of limitation to file application under Section 12 of the Act by the respondent. The quoted observations made by Gujarat High Court in the case of Lilaram (supra) are very relevant in this respect.
10. Furthermore, from the submissions made before me, it appeared that the appellants have treated the first order in the manner as if a summoning order under Section 204 Cr.P.C. has been passed against them. However, the order dated 20.01.2012 vide which notice of petition filed by the respondent was issued to the appellants cannot be treated like a summoning order against an accused. A notice was issued by the ld. MM to the appellants as Page 7 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.22/15 per Section 13 of the Act and the proceedings before ld. MM was to be conducted further in order to appreciate the merits of the complaint made by the respondent. The order referred in Section 29 of the Act cannot be interpreted to be any interlocutory order. It has to be an order thereby deciding any right or liabilities of the parties. Section 29 of Act talks about appeal against an order made by the MM, which is served upon the aggrieved person or the respondent. Section 2 of the Act mentions two kind of orders i.e. protection order and residence order (Ref: Section 2 (o) and (p)). The MM may also pass such orders as provided under Section 18, 19, 20, 21, 22 and 23 of the Act. An order is required to be served upon any of the parties, only if it decides any right or liability of any of the parties.
11. The impugned order did not decide any of the rights or liabilities of the appellants under aforesaid provisions. The trial court rightly observed that the allegations made by the respondent herein was to be decided only after leading the evidence and therefore, I do not find any illegality in the decision taken by Metropolitan Magistrate. Rather, I find that this appeal was not maintainable because of absence of any decision on the right or liability of the appellants. Hence, appeal is dismissed.
12. Copy of this judgment be sent to the trial court, to be placed in the file of case no.V-429/13.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 02.09.2015 Additional Sessions Judge (Shahdara) (This order contains 8 pages) Karkardooma Courts, Delhi Page 8 of 8 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi