Karnataka High Court
S Vijikumar vs Mouwnehwarachari C on 6 April, 2023
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
-1-
CRL.RP No. 674 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P.NO. 674 OF 2022
BETWEEN:
S VIJIKUMAR
W/O MOWNESHWARACHARI
AGED ABOUT 33 YEARS
R/AT NO.452/2C, 6TH CROSS
SRIRAMA TEMPLE ROAD
ANNASANDRAPALYA HAL
BANGALORE - 560 017.
...PETITIONER
Digitally signed
by B A KRISHNA
(BY SRI SRUTI C. CHAGANTI, ADV.)
KUMAR
Location: High AND:
Court of
Karnataka MOUWNEHWARACHARI C
S./O CHANDRACHARI
AGED ABOUT 35 YEARS
TECHNICAL ASSISTANT
PB NO.53823, NAL
OLD AIRPORT ROAD
BANGALORE - 560 017.
...RESPONDENT
(BY SRI ANANDEESWARA D.R, ADV.)
THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 27.05.2021 PASSED BY THE LEARNED
LXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BANGALORE
(CCH-62) ALLOWING CRL. A. NO. 757/2020 FILE BY THE
RESPONDENT, PRODUCED HEREWITH AS ANNEXURE A AND ETC.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition under Section 397 R/w Section 401 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed by the accused challenging the -2- CRL.RP No. 674 of 2022 judgment and order dated 27.05.2021 passed by the Court of LXI Addl. City Civil & Sessions Judge, Bengaluru City in Crl.A.No.757/2020.
2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for respondent - State.
3. Facts leading to filing of this revision petition narrated briefly are, the petitioner - wife had filed a petition in Crl.Misc.No.6/2014 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act of 2005' for short). The said petition was allowed on 23.02.2015 and the learned Magistrate had awarded a maintenance of Rs.12,000/- per month in the said proceedings in favour of the petitioner and also an amount of Rs.1 lakh was awarded as compensation. The appeal filed by the respondent against the said order dated 23.02.2015 was dismissed for non-prosecution. Thereafter, the respondent had filed a petition under Section 25 of the Act of 2005 with a prayer to set-aside the order dated 23.02.2015 passed in Crl.Misc.No.6/2014 which was filed by the petitioner under Section 12 of the Act of 2005, on the ground that petitioner had suppressed material facts The -3- CRL.RP No. 674 of 2022 said petition filed by the respondent under Section 25 of the Act of 2005 was dismissed by the learned Magistrate by order dated 04.03.2020 and the said order was challenged by the respondent in Crl.A.No.757/2020 filed under Section 29 of the Act of 2005. The appellate Court by order dated 27.05.2021 allowed the said appeal and had remanded the matter to the learned Magistrate with a direction to consider the application filed by the respondent under Section 25 of the Act of 2005 by giving opportunity to both the parties to adduce their evidence and dispose of the same in accordance with law. Being aggrieved by the same, the petitioner is before this Court.
4. Learned counsel for the petitioner submits that the respondent has made sweeping prayer in the petition under Section 25 of the Act of 2005 which includes recovery of amount paid to the petitioner under order dated 23.02.2015 passed in Crl.Misc.No.6/2014. She submits that such an order cannot be passed by the learned Magistrate in exercise of his power under Section 25 of the Act of 2005. She also submits that the observation made by the Appellate Court during the course of its order would prejudice the case of the petitioner -4- CRL.RP No. 674 of 2022 before the learned Magistrate. She accordingly, prays to allow the petition.
5. Learned counsel for the respondent has argued in support of the impugned judgment and order passed by the Appellate Court in Crl.A.No.757/2020 and prays to dismiss the revision petition.
6. I have carefully considered the arguments addressed on both sides and also perused the material available on record.
7. Section 25 of the Act of 2005 reads as under:
"25. Duration and alteration of orders.- (1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."-5- CRL.RP No. 674 of 2022
8. A reading of Sub Section (2) of Section 25 of the Act of 2005 makes it very clear that on receipt of an application from the aggrieved person or the respondent, if the magistrate is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
9. In the present case, after receipt of an application filed under Section 25 of the Act of 2005, the learned Magistrate has dismissed the same on the ground that the order passed under Section 12 of the Act of 2005 in Crl.Misc.No.6/2014 was a final order and therefore he has become functus officio and he cannot entertain a petition under Section 25 of the Act of 2005. The said reasoning of the learned Magistrate for dismissing the application filed by the respondent under Section 25 of the Act of 2005 is illegal and the same cannot be sustained in law.
10. The Appellate Court was fully justified in setting aside the said order and remanding the matter to the learned Magistrate to consider the application filed by the respondent under Section 25 of the Act of 2005 in accordance with law -6- CRL.RP No. 674 of 2022 after affording an opportunity to both parties to lead evidence and make their submission on the application filed by the respondent under Section 25 of the Act of 2005. The respondent has alleged that the petitioner had suppressed the material facts before the learned Magistrate in the proceedings bearing Crl.Misc.No.6/2014 which he came to know later on. Having regard to the same, the petition filed by the respondent under Section 25 of the Act of 2005 was maintainable before the learned Magistrate and the learned Magistrate was not justified in dismissing the said petition on the ground that he had finally disposed of the petition under Section 12 of the Act of 2005 and therefore he had become functus officeo. In my considered view the appellate Court was completely justified in setting aside the order passed by the learned Magistrate on the application filed by the respondent under Section 25 of the Act of 2005 and remanding the matter to the learned Magistrate for fresh consideration of the application in accordance with law after giving an opportunity to both parties. I find no illegality or irregularity in the said order passed by the Appellate Court in Crl.A.No.757/2020. Accordingly, I find no merit in this revision petition. The same is therefore dismissed. -7- CRL.RP No. 674 of 2022
11. It is made clear that the learned Magistrate shall consider the application filed by the respondent under Section 25 of the Act of 2005 without being influenced by any observation made by the Appellate Court while disposing of Crl.A.No.757/2020.
The registry is directed to send back the Trial Court records forthwith.
Sd/-
JUDGE NMS