Himachal Pradesh High Court
Smt. Babita vs Arsh Vardhan Singh And Others on 14 September, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 14th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 266 of
2021
Between:
1. SMT. BABITA, W/O SH.
ARSH VARDHAN SINGH, R/O
123/1, KUNDAN KA BAG,
NAHAN, DISTRICT SIRMAUR,
HP, PRESENTLY RESIDENT OF
FLAT NO.12, 2ND FLOOR, NEW
GANESH VIHAR, DHAKOLI,
TEHSIL DERA BASSI,
DISTRICT MOHALI,
PUNJAB.
2. BABY MRIGANKA (MINOR),
D/O ARSH VARDHAN
SINGH, THROUGH HER
LEGAL GUARDIAN/MOTHER
BABITA, R/O 123/1,
KUNDAN KA BAG, NAHAN,
DISTRICT SIRMAUR, HP,
PRESENTLY RESIDENT OF
FLAT NO.12, 2ND FLOOR, NEW
GANESH VIHAR, DHAKOLI,
TEHSIL DERA BASSI,
DISTRICT MOHALI,
PUNJAB.
....PETITIONERS.
(BY MR. BALDEV SINGH NEGI, ADVOCATE)
AND
1. SH. ARSH VARDHAN SINGH,
S/O SH. VIRENDER SINGH
CHAUHAN, R/O 123/1,
KUNDAN KA BAG, NAHAN,
DISTRICT SIRMAUR, HP.
2. SH. VIRENDER SINGH
CHAUHAN, S/O SH. SUKH
DARSHAN SINGH, R/O
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2
123/1, KUNDAN KA BAG,
NAHAN, DISTRICT SIRMAUR,
HP. (FATHERINLAW OF
BABITA)
.
3. SMT. RAJESH CHAUHAN, W/O
SH. VIRENDER SINGH
CHAUHAN, S/O SH. SUKH
DARSHAN SINGH, R/O 123/1,
KUNDAN KA BAG, NAHAN,
DISTRICT SIRMAUR, HP.
(MOTHERINLAW OF
PETITIONER BABITA)
....RESPONDENTS.
(BY MR. RUPINDER SINGH, ADVOCATE, FOR RESPONDENT NO.1
MR. ASHOK KUMAR TYAGI, ADVOCATE, FOR RESPONDENTS NO.2 &
3)
Whether approved for reporting?1 Yes
This petition coming on for orders this day, the Court passed the
following:
JUDGMENT
By way of this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners herein have prayed for the quashing of order dated 31.3.2021, passed by the Court of learned Judicial Magistrate, Ist Class, Nahan, District Sirmaur, H.P., in Criminal Case No. 59 of 2020 titled as Smt. Babita and another vs. Arsh Vardhan Singh and others.
Brief facts necessary for the adjudication of the present petition are as under: A complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 2005 Act) was filed by the petitioners in the Court of learned Judicial Magistrate Ist Class, Nahan, District Sirmaur, H.P. The same was accompanied by an application under 1 ::: Downloaded on - 31/01/2022 23:04:18 :::CIS 3 Section 23 of the Protection of Women from Domestic Violence Act 2005. A preliminary objection was taken by the respondents with regard to the maintainability of the said petition, interalia, on the ground that the .
complainants had already instituted a complaint under Section 12 of the Protection of Women from Domestic Violence Act, which was pending adjudication before the Court of learned Judicial Magistrate, Ist Class, Derra Bassi, District Mohali, Punjab. Vide impugned order, the subsequent complaint so filed at Sirmaur was dismissed by the learned Judicial Magistrate, Ist Class, Class, Nahan, District Sirmaur, H.P., on the ground that two cases of similar nature cannot run together in two different Courts.
2. Feeling aggrieved, the petitioners have approached this Court by way of this petition under Section 482 of the Code of Criminal Procedure.
3. Learned Counsel for the respondents has taken a preliminary objection with regard to the maintainability of this petition on the ground that as the order assailed by way of the present petition is that of a Magistrate passed under the provisions of the Protection of Women From Domestic Violence Act, 2005, the same is appealable under Section 29 of the said Act and therefore, this petition under Section 482 of the Code of Criminal Procedure is not maintainable.
4. Learned Senior Counsel appearing for the petitioners has submitted that an appeal as is envisaged under Section 29 of the 2005 Act, can be filed by an aggrieved person in case there is an adjudication on merit by the learned Magistrate on a complaint but in such like situation, where a petition has been dismissed on the ground that there was another case pending on the same cause at Derra Bassi, the only course available with the ::: Downloaded on - 31/01/2022 23:04:18 :::CIS 4 petitioners was to have had approached this Court under Section 482 of the Code of Criminal Procedure against the impugned order. He has further argued that as the order passed by the learned Judicial Magistrate, Ist Class, .
Nahan District Sirmaur, H.P, is inherently not sustainable in law as while passing the said order, learned Judicial Magistrate, Ist Class, Nahan, District Sirmaur, H.P, has ignored the basic provisions of Section 204 of the Code of Criminal Procedure, therefore, the petitioners have a right to invoke the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure.
5. I have heard learned Counsel for the parties and also gone through the impugned order.
6. Before proceeding further, it is pertinent to mention that in the interregnum, certain developments took place which are necessary to be brought on record. The proceedings which the petitioners had initiated under the provisions of 2005 Act at Derra Bassi, stood withdrawn by them as is evident from the order appended with these proceedings dated 10.7.2021.
7. Be that as it may, this Court will address the preliminary objection which has been taken by respondents with regard to the maintainability of the present petition. The Protection of Women from Domestic Violence Act, 2005, is a Special Act which has been enacted to provide for more effective protection of the rights of Women granted under the Constitution who are victim of violence of any kind occurring within the family and for matter connected therewith or incident therewith. This stature happens to be a substantial as well as a procedural law.
::: Downloaded on - 31/01/2022 23:04:18 :::CIS 58. Chapter 4 of the Act deals with the procedure for obtaining orders or relief. Section 12 of the same contemplates, an aggrieved person or a Protection Officer or any other person on behalf of aggrieved person to file .
an application to the Magistrate seeking one or more relief which can be granted under the Act. The person "aggrieved person" has been defined in Section 2(a) of the Act and the same reads as under: 2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
9. Section 23 of the Act further provides that in any proceedings before the Magistrate initiated under the Act, he may pass such interim order as he deems just and proper.
10. Now, coming to the facts of the present case as already mentioned hereinabove, the petitioners herein filed a complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 at Nahan in which, the following reliefs were prayed for: "It is therefore, most respectfully prayed that this application of applicants/petitioners may kindly be allowed and the respondents may kindly be directed to hand over Jewelry articles i.e. Necklace, Mang Tikka, Ear Rings, one Gold Bangel, to aggrieved person, gift items and cash in total amounting to Rs. 10,00,000/ withheld by the respondents No.2 & 3 may kindly be ordered to given in the shape of Joint Bank FD. In the name of aggrieved person and respondent No.1, and the respondent No.1 may kindly be directed to pay monthly maintenance of rs. 40,000/ per month including flat rent charges to petitioner No.1 and petitioner No.2 minor daughter and all the respondents may ::: Downloaded on - 31/01/2022 23:04:18 :::CIS 6 kindly be directed to provide complete floor/set of residence in House Building No.123/1, Kundan Ka Bag, Nahan, District Sirmaur, HP and justice be done. An affidavit is attached herewith."
.
11. Alongwith this petition an application for interim maintenance as is envisaged under Section 23 of the Act was also filed, vide which the following relief was sought: "It is therefore, most respectfully prayed that this application of applicants/petitioners may kindly be allowed and the respondent may kindly be directed to pay interim monthly maintenance of Rs. 30,000/ per month including flat rent charges to petitioner No.1 and petitioner No.2 minor daughter and justice be done. An affidavit is attached herewith."
12. By way of the reply which was filed to the said complaint by the respondents therein, the following preliminary objection was taken amongst others: "That the complainant outright dismissal is view of the admitted fact that similar complaint has already been filed by the complainant at Derabasi which is still pending and has not yet been withdraw despite repeated assurances given by the learned counsel of the complainant at bar in this LD Court."
13. By way of the impugned order this petition filed by the petitioners stood dismissed by the learned Magistrate by observations that admittedly the petitioners had already filed a complaint under Section 12 of the Act, alongwith an application under Section 23 of the same before the Court of learned Judicial Magistrate, Ist Class, Derra Bassi, Punjab which was pending adjudication and the counsel for the petitioner had stated at bar that ::: Downloaded on - 31/01/2022 23:04:18 :::CIS 7 he were not ready and willing to withdraw the same as the case stood filed claiming different relief and they intended to pursue both the cases at different places. Learned Court thereafter held that it was of the considered .
view that petitions of similar nature whereby relief claimed was also same should not be filed in two different Courts. It further held that though the petitioner had not suppressed the factum of filing of the complaint before learned Judicial Magistrate, Ist Class, Derra Bassi but merely non suppressing of fact cannot be a ground to permit the petitioners to pursue Domestic Violence cases against the respondents at two places.
14. On these findings, learned Magistrate dismissed the complaint by holding that two cases of similar nature cannot run together in two different Courts.
15. Section 29 of the 2005 Act, provides as under:
29. Appeal. There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
16. The word 'Order' has not been defined under the 2005 Act. In Black's Law Dictionary the word order has defined as under: "A mandate; precept; command or direction authoritatively given; rule or regulation. Brady v. Interstate Commerce Commission, D.C.W.Va., 43 F.2d 847, 850. Direction of a court or judge made or entered in writing, and not included in a judgment, which determines some point or directs some steps in the proceedings. an application for an order is a motion."
17. This Court is of the considered view that the decision vide which a complaint filed under Section 12 of the Protection of Women from Domestic ::: Downloaded on - 31/01/2022 23:04:18 :::CIS 8 Violence Act, 2005 is dismissed by the Magistrate may by holding that the same is not maintainable, is also an 'order' which is appealable under Section 29 of the Act. Whether or not the reasons assigned therein are sustainable in .
law is a separate issue, which obviously can be gone into even by the Court of Sessions in an appeal, which may be preferred by an aggrieved person under Section 29 of the Act. This Court does not concurs with the submissions made by learned Senior Counsel for the petitioners that because there was no adjudication on merit by learned Magistrate and as purportedly the Magistrate had no jurisdiction to dismiss the complaint on the basis of the pendency of another petition before Judicial Magistrate, Ist Class, Derra Bassi, District Mohali, Punjab, therefore, the appeal was not maintainable. According to this Court, any order passed by the Magistrate is assailable at the first instance only by way of appeal under Section 29 of the Act. Therefore, as there is a statutory remedy available with the present petitioners, these proceedings which have been initiated under Section 482 of the Code of Criminal Procedure are not maintainable because law is amply clear that where a statutory remedy is available then the powers so vested under the High Court under 482 of the Code of Criminal Procedure stood not be invoked. In this view of the matter, these proceedings are held to be not maintainable in view of the statutory remedy available to the petitioners.
22. However, in the peculiar facts of the case, it is observed that in case the petitioners herein do approach the learned Appellate Court against the order passed by the learned Magistrate on or before 15 th October, 2021, then the said appeal shall be deemed to be within limitation and learned Appellate Court shall make an endeavour to decide the same finally within a ::: Downloaded on - 31/01/2022 23:04:18 :::CIS 9 period of 2 months as from the date of the receipt of the appeal on merit.
Alternatively, petitioners shall be at liberty to institute a fresh petition under the Domestic Violence Act, if so advised. The petition is accordingly disposed .
of in above terms, so also pending miscellaneous application, if any.
(Ajay Mohan Goel)
Judge
September 14, 2021
(vinod)
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