Allahabad High Court
Nitin Kumar Sharma vs State Of U.P. And Another on 23 July, 2019
Author: Rajiv Joshi
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 72 Case :- CRIMINAL REVISION No. - 2737 of 2019 Revisionist :- Nitin Kumar Sharma Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Abhishek Tripathi Counsel for Opposite Party :- G.A.,Manish Joshi,Mukesh Joshi Hon'ble Rajiv Joshi,J.
Vakalatnama filed today by Sri Manish Joshi on behalf of opposite party no. 2 is taken on record.
Heard Sri Abhishek Tripathi, learned counsel for the revisionist and Sri Manish Joshi appearing for opposite party no. 2.
The instant revision under section 397/401,Cr.P.C. has been preferred challenging the judgment and order dated 07.06.2019 passed by the Session Judge, Ghaziabad, by which Criminal Misc. Appeal No. 173 of 2019, filed by the revisionist herein under Section 29 of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as "the Act") was dismissed as not maintainable, thereby affirming the order dated 28.05.2019 passed by the Additional Chief Judicial Magistrate, Court No. 6, Ghaziabad, in complaint Case No. 1313 of 2019 whereby the revisionist's application dated 28.05.2019 for stay of the proceedings in question was rejected.
The record reflects that the revisionist and opposite party no. 2 are husband and wife and their marriage was solemnized on 28.02.2017. Subsequently, on account of differences between them, an application under Section 156(3) Cr.P.C. was filed by the revisionist husband for lodging a first information report with regard to the incident dated 21.09.2017 which is said to have taken place at the office of the revisionist at Delhi. The said application under Section 156(3) Cr.P.C. was treated to be a complaint case and after recording the statement of complainant and the witnesses under Section 200 and 202 Cr.P.C., the opposite party no. 2 and her father were summoned and in that case both of them are on bail. The said complaint case is stated to be still pending before the Court of Metropolitan Magistrate, Saket Court, New Delhi.
Subsequently, an application under Section 12 of the Act was filed by the opposite party no. 2 alleging domestic violence on grounds of physical abuse, sexual abuse, verbal emotional abuse and economic abuse and claimed relief in terms of section 18,19 & 20 of the Act. The alleged incident dated 21.09.2017 which is said to have taken place at the applicant's office at Delhi was also mentioned by the wife in her application under section 12 of the Act. Initially, the said application was allowed ex-parte vide order dated 30.04.2017 by the Magistrate. Against the said ex-parte order, a recall application was moved by the revisionist which was subsequently allowed. It is also on the record that the opposite party no. 2 also lodged a first information report under Section 498A, 323, 354, 352, 406 IPC and D.P. Act, P.S. Mahila Thana, District Ghaziabad in which the revisionist and his father were summoned. Subsequently, an application under Section 482 Cr.P.C. was filed by the revisionist and his parents in which the further proceeding pursuant to the aforesaid case in respect of the father and mother of the revisionist was stayed and the revisionist was directed to appear before the Court and seek bail. It is stated that bail was granted by the Magistrate to the revisionist and the said application under Section 482 Cr.P.C. is still pending. It further appears that in the meantime, the opposite party no. 2 also filed an application under Section 482, Cr.P.C. being No. 10943 of 2019 seeking a direction from the Court for expeditious disposal of Case No. 254 of 2018, under Section 12 of the Act within some stipulated period and the High Court vide its order dated 29.03.2019 directed the court concerned to decide the aforesaid case expeditiously by fixing short dates in the matter if there is no other legal impediment.
Thereafter, an application was filed from the side of the revisionist on 28.05.2019 for staying the proceedings of the case under Section 12 of the Act on the ground that between the same parties a complaint case is pending before the Metropolitan Magistrate, Saket Court, New Delhi, and unless and until the said case is decided, the proceedings should be stayed. According to the revisionist, pendency of the complaint case No. 10341 of 2017 is the legal impediment in disposal of the case instituted by the wife under section 12 of the Act. The said application was rejected by the Magistrate vide impugned order dated 28.05.2019. Against that order, an appeal under Section 29 of the Act was filed by the revisionist, and the same was also dismissed by the learned Sessions Judge vide order dated 07.06.2019 as not maintainable. It is against these two orders dated 28.5.2019 and 7.6.2019 that the present revision has been filed.
The contention of the learned counsel for the revisionist is that the proceedings under Section 12 of the Act are quasi civil in nature and therefore in view of Section 10 Code of Civil Procedure, the subsequent proceeding under Section 12 have to be stayed as earlier proceedings between the parties instituted by the revisionist with regard to the incident which took place at Delhi, is still pending. In support of his contention, learned counsel for the revisionist as placed reliance upon the judgement of the Supreme Court in Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari & Anr., reported in 2016 (11) SCC 774.
On the other hand, learned counsel for the opposite party no. 2 submits that the above application of the revisionist for stay of the proceedings, had been moved only with a view to delay the disposal of the case instituted by the wife under section 12 of the Act. The revisionist is adopting delaying tactics in the matter. It is further contended on behalf of the opposite party no. 2 that the matter has already been expedited by this Court and both the proceedings are different and cause of action is also different and as such the provision of Section 10 C.P.C., do not apply in the matter as contended on behalf of the revisionist.
I have considered the rival submissions so raised by the learned counsel for the parties and perused the record.
The whole argument of the learned counsel for revisionist is solely based upon section 10 of the C.P.C. The object of section 10 C.P.C., is to avoid two parallel trials on the same issue by two courts of concurrent jurisdiction and conflicting findings on the issues which are directly and substantially in issue in the previously instituted suit. Therefore, it has to be examined first for applicability of section 10, C.P.C. as to whether the whole of the subject matter in both the proceedings is identical or not. The record reflects that the proceedings which are pending before the Metropolitan Magistrate II, Saket Court, New Delhi, regarding the incident dated 21.9.2017 happened at office of the revisionist in New Delhi at the instance of the revisionist, are under Sections 380, 323, 331, 506/34 IPC i.e. for theft in dwelling house, causing hurt, voluntarily causing grievous hurt to extort confession or to compel restoration of property and criminal intimidation and the accused therein are opposite party no. 2 , her father, her brother, driver and 3 & 4 unknown persons.
Whereas the case instituted by the wife, opposite party no. 2 herein, under section 12 of the Act, is regarding domestic violence on grounds of physical abuse, sexual abuse, verbal emotional abuse and economic abuse and the relief claimed therein is in terms of section 18,19 & 20 of the Act. These proceedings are between the husband and wife alone, arising out of the incidents dated 14.01.2017, 14.04.2017, 22.06.2017, and 21.09.2017 as detailed in the application under section 12. In view of the above facts, it cannot be said that matter in issue in both the proceedings at Delhi and at Ghaziabad, the whole of the subject matter is same or identical. In fact, the cause of action, parties and issues to be settled as well as the relief in both the proceedings, are altogether different. Hence, the question of applicability of section 10,C.P.C. does not arise at all in the facts and circumstances of the case. Besides it, section 28 of the Act, clearly postulates that 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.
In so far as the decision cited by the learned counsel for revisionist in Kunapareddy @ Nookala Shanka Balaji case (supra) is concerned, the issue for consideration before the Apex Court in that case was whether a court dealing with the petition/complaint filed under the Domestic Violence Act, 2005, has power to allow amendment to the petition/complaint originally filed ? The Apex Court after dealing with various provisions of law came to the conclusion even in criminal cases governed by the Cr.P.C. is not powerless and may allow amendment in appropriate cases. Such position is not here in the present case, and hence the decision cited is of no help to the revisionist in the facts and circumstances of the present case.
In view of what has been discussed above, in my considered opinion, the application moved by the revisionist for staying the proceedings, has rightly been rejected by the Magistrate and affirmed by the appellate court. There appears to be no illegality and infirmity in the orders impugned passed by the courts below.
The revision lacks merits and, is accordingly, dismissed.
Order Date :- 23.7.2019 Shivangi