Madhya Pradesh High Court
Praveen Upadhyay vs Smt. Rajni Upadhyay on 12 September, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 2704/2019
Praveen Upadhyay and others
Vs
Smt. Rajni Upadhyay
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Shri Vijay Kumar Shukla, learned counsel for the petitioner.
Shri Amit Kumar Choubey, learned counsel for the respondent.
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ORDER
(12.09.2019) Petitioners/non-applicants filed this Criminal Revision under Section 397/401 of the Cr.P.C. against the order dated 13.05.2019, passed by the learned Judicial Magistrate first Class, Bareli, District Raisen, in MJC No. 04/2019, whereby learned Judicial Magistrate First Class dismissed the objection presented by the petitioners/non-applicants before the trial Court.
2. Case of respondent in short is that in the trial Court, marriage of respondent was solemnized with petitioner No.1/non-applicant on 01.07.2009. Petitioner/non-applicant No.2 is brother-in-law, petitioner/non-applicant No.3 is father- in-law, petitioner/non-applicant No.4 is sister-in-law and petitioner/non-applicant No. 5 is mother-in-law of respondent. After marriage, respondent was living with petitioners/non- 2 Cr.R. No. 2704/2019 applicants. After some time of marriage, petitioners/non- applicants humiliated and tortured her and they demanded dowry to her. Therefore, brother of respondent had given Rs. 5 lakhs to the petitioners/non-applicants. Thereafter, petitioners/non-applicants again started demand of Rs. 5 lakhs to the respondent. Due to non fulfillment of demand of dowry, petitioners/non-applicants had thrown her out from their house. Since then respondent is living at her paternal house. So, this is a case of domestic violence. Therefore, respondent filed an application under Section 12 of Domestic Violence Act. Apart from that she filed an application under Section 23 of Domestic Violence Act. Petitioners/non-applicants appeared before the Trial Court and raised objection for maintainability of the petition on the ground of jurisdiction. They submitted before the Trial Court that respondent can not get any relief from women members of his family. Therefore, this case is not maintainable against the petitioners/non-applicants No. 4 and
5. Incident was occurred at Hoshangaad said to alleged before one year and 8 months. So, this petition is barred by limitation. Respondent/complainant did not comply the provision of Section 468 of Cr.P.C. Respondent can only demand of maintenance from her husband. She can not get maintenance other petitioners/non-applicants. She can also not demand to right of living in the disputed house of petitioners/non- applicants No. 2 to 5. They prayed to Court to dismissed the 3 Cr.R. No. 2704/2019 petition but learned Trial Court dismissed the objection raised by the petitioners/non-applicants.
3. Learned counsel for the petitioners/non-applicants submits that impugned order dated 13.05.2019 is illegal, arbitrary and contrary to law, therefore, liable to be set aside. Incident occurred at Hoshangabad and case was registered under Section 498-A/34 of IPC also there. Therefore, petition is not maintainable at the Court of Bareli, District Raisen. Case under Section 498-A/34 of IPC was registered at Hoshangabad. Respondent/complainant may seek relief only against male members of the family. Complainant cannot seek relief for separate residential accommodation because the family of the petitioners is joint family. Complainant can also not seek any relief for compensation against the petitioners/non-applicants No. 2 to 5. Therefore, he prays for setting aside the order dated 13.05.2019 in Complaint case MJC No. 04/2019.
4. Learned counsel for the respondent/complainant submits that case is maintainable under the Protection of Women from Domestic Violence Act, 2005.The petitioners have continuously tortured and humiliated her thus they all are responsible and liable to be prosecuted under Domestic Violence Act. So far as territorial jurisdiction case is concerned, the petitioners have demanded dowry in her parental house on 05.03.2017. Thus, the case is maintainable is the territorial jurisdiction of District Raisen. Therefore, the 4 Cr.R. No. 2704/2019 order of trial Court is proper. There is no interference warranted in the impugned order.
5. Before proceeding further, it is appropriate to first read Section 27 of Protection of Women From Domestic Violence Act, 2005 which is quoted as under:-
"Protection of Women From Domestic Violence Act, 2005--
Section 27 Jurisdiction-(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which--
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India."
6. It is evident from the aforesaid Section respondent/wife can file a petition, where, she temporarily resides. After the incident, respondent/wife is residing her parental home. Therefore, the Court of Judicial Magistrate First Class, Barely has jurisdiction to proceed the case.
7. Another ground which has been taken by the petitioner's counsel is that complainant has filed an application under section 12 of Protection of Women from Domestic Violence Act, 2005 is barred by limitation in view of the provision of Section 468 Cr.P.C. He stated that according to complainant, on 09.06.2016, when she came to her matrimonial house, she was driven out of the house making allegation of theft and since then she is residing in her parental house. 5 Cr.R. No. 2704/2019 An application was filed on 31.01.2018 after passing period of more than one year, thus, same is barred by limitation.
8. On perusal of provision of Section 12 of D.V. Act, it appears that no limitation period is prescribed for filing an application under the Act. At this juncture, it is necessary to mention that under Schedule of limitation Act, article 137 provides that any other application for which no period of limitation is provided elsewhere in the Division, the limitation period will be three years when the right to apply accrues. In the petition, no fact mentioned that as to how petitioner is saying limitation period is one year for filing this application. Since, the petitioner is argued on the point of the provision of Section 468 of Cr.P.C., therefore, this Court deals with all the legal aspects in this regard. On perusal of order passed by learned trial Court it appears that the petitioner has also raised the same issue before the trial Court and relied the judgment of Hon'ble Apex Court in the case of Inderjit Singh Grewal Vs. State of Punjab and another reported in (2011)2 SCC 588. It is necessary to quote relevant para of the judgment of Hon'ble Supreme Court passed in Inderjit Singh Grewal's case. Same is quoted as under:-
"32. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, and Noida Entrepreneurs Association v. Noida ."6 Cr.R. No. 2704/2019
9. On careful reading of above cited judgment it appears that same has been passed by the Hon'ble Apex Court in reference to provision of Sections 12, 28 and 32 read with rule 15(6) of D.V. Act. These provisions and rules are also quoted as under:-
"Section 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 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 of 1908), 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.
"Section 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 23.7 Cr.R. No. 2704/2019
Section 32. Cognizance and proof.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-
section (1) of section 31 has been committed by the accused."
10. Further, rules 15(6) of the Protection of Women from Domestic Violence Rules, 2006 is also reproduced as under:-
"(6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 ."
11. To settle the legal position, it is also necessary to consider Section 18 of D.V. Act which is also reproduced as under:-
"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 8 Cr.R. No. 2704/2019 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."
12. On careful reading of these provisions, it appears that Section 12 provides a remedy to aggrieved person or protection officer to file an application to the magistrate seeking one or more relief under D.V. Act. Thereafter, the Magistrate may pass a protection order under Section 18 of D.V. Act if on being heard the aggrieved person and the respondent, he finds that any domestic violence has taken place or his likely to take place. In the reference of Sections 18, Section 31 provide the penalty for breach of protection order by the respondent and if it is found that the respondent breaches of protection order or of an interim protection order, he commits offence under the D.V. Act and same 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. Provision of section 28 speaks about the applicability of Cr.P.C in D.V Act with regard to all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 of D.V. Act. Section 32 makes the offence under section 31 cognizable and non bailable. Rule 15(6) provides about the about the discretion of magistrate to separate proceeding in respect to charges framed under Section 31 of DV Act or Section 49(A) or any other offences is not summarily triable and provides the power to proceed to summarily try 9 Cr.R. No. 2704/2019 the offence of the breach of protection order under Section 31, in accordance with the provision of chapter XXI of the Cr.P.C.
13. Now, from above discussion, it is gathered that the section 31 of D.V act is offence to breach protection order passed by learned Magistrate whereas section Sections 12,18,19,20,21 and 23 are procedural provision under D.V. Act. Now the question remains with regard to applicability of Section 468 Cr.P.C in D.V. Act. to the context of issue involved in the present case. Let read the section 468 Cr.P.C.
"468. Bar to taking cognizance after lapse of the period of limitation -(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. (2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."
14. It appears that Section 468 Cr.P.C. deals with bar to take cognizance after lapse of the period of limitation and according to it Court can not take cognizance in respect to offence punishable with fine, upto one year and one year to three years if the period of 6 months, 1 year and 3 years, respectively have been expired. Therefore, it is not in dispute section 468 Cr.P.C deals with bar for taking cognizence with respect to offence not to application. Further, Section 472 provides the provision of continuing offence and in the 10 Cr.R. No. 2704/2019 case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Now the question arises is there any limitation period to file an application under Section 12 of D.V.Act before the Court and the proceeding of Section 12 of D.V. Act is a continuous cause of action or not?
15. The High Court of Delhi dealt with the issue in the case of Anthony Jose Vs. State of NCT of Delhi and others reported in (2018) SCC Online DEL 12956 and held that non providing of maintenance is a continuous cause of action and wife would not debar for seeking maintenance under Section 12 of D.V. Act and the complaint thereon cannot be dismissed being barred by limitation.
16. In the present case, it appears that in her application filed by the respondent, she has claimed the maintenance from the petitioner. Therefore, now settled legal position is that no limitation period has been prescribed for an application under Section 12 of D.V Act and non providing of maintenance is continuous cause and wife cannot be debarred to seek the maintenance under Section 12 of D.V. Act and her complaint cannot be dismissed being barred by limitation. The applicability of limitation period under Section 468 of Cr.P.C. comes into the picture only when there is violation of protection order passed under Section 18 of D.V Act and consequently offence is committed under Section 31 of D.V. Act. In the present case respondent has not filed any proceeding with regard to breach of protection order by the petitioner/non applicant. Apart from that in the complainant, filed by the complainant under Section 11 Cr.R. No. 2704/2019 12 of D.V. Act, it is apparent that though she was driven out of the house on 09.06.2016 but she further specifically alleged that on 05.03.2017, petitioners/non-applicants came to her parental house and demanded dowry. As the application filed on 31.01.2018, even within a period of one year, is not barred by limitation. The principle laid down in the Inderjit Singh's Case is not adverted to this case. Hence, the ground took by the petitioner's counsel with regard to limitation is hereby discarded.
17. Learned counsel for the petitioners/accused submits that under Sections 12 and 22 of Domestic Violence Act, the complainant may seek relief only from the male members not female members of the family of petitioner No.1. Therefore, petition is not maintainable against female members of family of petitioner No.1. In this regard the petitioners have placed reliance in the case of Tahmeena Qureshi Vs. Sajiya reported in 2010(1) MPHT page 133 and Ajaykant Sharma Vs. Smt. Alka Sharma, Crimes 2008(2) page No. 235 but the Hon'ble Apex Court in the case of Hiral P. Harsora and others Vs. Kusum Narottamdas Harsora And Ors reported in (2016)10 SCC 165. The Hon'ble Apex Court held that the remedies under the Act of 2005 are available even against female family members and others including non adult. So in view of this, petition is maintainable against the family members of petitioner No.1 under Protection of Women of Domestic Violence Act, 2005.
18. Learned counsel for the petitioners/accused submits that petitioner/accused No.2 is brother-in-law, petitioner/accused No.3 is father-in-law and petitioner/accused No.4 is sister-in-law of 12 Cr.R. No. 2704/2019 respondent/complainant. Respondent/complainant lodged the FIR on 05.08.2017, thereafter FIR was registered under Section 498-A of IPC against the petitioner/non-applicant No.1 and petitioner/non-applicant No. 5. The statements of under Section 161 of Cr.P.C. has also been recorded of the respondent/complainant. These documents are un- controverted documents. Therefore, these documents can be seen in this petition.
19. It is true that respondent/complaint lodged a complaint against petitioners/accused No.1 and 5 on 05.08.2017. FIR was registered under Section 498-A of IPC against the petitioners No. 1 and 5. It is evident from these documents, no allegation made by the respondent/complainant against the petitioners/non-applicant Nos. 2, 3 and 4. It is admitted fact that after 05.08.2017, respondent/complainant did not live with petitioners/non-applicants. So it is evident that respondent/complainant did not alleged any fact of humiliating and torturing against the petitioners/non-applicants No. 2, 3 and 4. She admitted this fact in her complaint that she lived happily about 8 months in matrimonial house. Thereafter, petitioner/non-applicant No. 1 had come Hoshangabad, So she lived with him at Hoshangabad. Her mother-in-law used to come at Hoshangabad and tortured and humiliated her. So it is evident that respondent/complainant did not allege any fact against the petitioner/non-applicants No. 2, 3 and 4. She has filed a petition under Section 12 of Domestic Violence Act. On 13.01.2018 alleging against petitioners/non-applicant No. 2, 3 and 4. She alleged that these petitioners/non-applicant demanded dowry and due to non 13 Cr.R. No. 2704/2019 fulfillment of the same they tortured and humiliated her. Therefore, it is evident that allegation of petitioners/non-applicants No. 2, 3 and 4 are afterthought. Petitioners/non-applicant No. 2, 3 and 4 have been implicated in this case only to relation with petitioner/non-applicant No.1. Thus, prima facie no case is made out against them. Therefore, the proceedings continuous against petitioners/non-applicants No.2, 3 and 4 be considered is purely misused of process of law.
20. In the case of State of Harayana Vs. Bhajan Lal and others reported in 1992 SCC (Cri) 426 the Hon'ble Apex court has held as under:-
"(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the un-controverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
14Cr.R. No. 2704/2019 (7) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
21. The Hon'ble Apex court has laid down seven guide lines for exercising the inherent power of High Court under Section 482 of Cr.P.C. for quashing the FIR.
22. Having read the above said principles, it is manifest that High Court should use its inherent power under Section 482 of Cr.P.C. to secure the ends of justice or to prevent an abuse of the process of any Court, but while exercising its power the high Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
23. No case is made out against the petitioners/non-applicant No. 2, 3 and 4. So inherent power can be invoked to set aside order dated 13.05.2019, passed by the learned Judicial Magistrate first Class, Bareli, District Raisen, in MJC No. 04/2019, in regard of petitioners No. 2, 3 and 4.
24. As far as petitioners/non-applicant No. 1 and 5 are concerned, there is prima facie allegation about torturing and harassing the respondent/complainant is available on the record, allegation will be investigate at the trial. So at this stage case of petitioner No. 1 and 5 is not appropriate to invoke inherent jurisdiction of the Court to set aside the proceeding.
25. Accordingly, this revision is partly allowed. Impugned order dated 13.05.2018 in MJC No. 4/2019 pending before JMFC, Bareli District Raisen is hereby set aside in relation to petitioners No. 15 Cr.R. No. 2704/2019 2 to 4. Proceeding of MJC No. 4/2019 shall be continued with regard to petitioners No. 1 and 5 and any findings passed by this Court shall not affect the case of petitioner No. 1 and 5 in any manner. Needless to say the learned trial Court shall proceed with the trial on his own discretion with being influenced from order of this Court.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.16 10:31:17 +05'30'