Delhi District Court
Rakesh Bhardwaj vs State And Ors on 22 February, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. Revision No. 372 of 2023
CNR No. : DLST01-009379-2023
RAKESH BHARDWAJ
S/O LT. SH. CHANDER SINGH RAHI
R/O FLAT NO. 1254 5th AVENUE
G-BLOCK, GAUR CITY
NOIDA EXTENSION, NOIDA-UP .....REVISIONIST
VERSUS
(1) STATE
THROUGH ADDITIONAL PUBLIC PROSECUTOR
SAKET COURTS, CENTRAL
DELHI.
(2) SMT. SAMIDHA SHARMA
W/O RAKESH BHARDWAJ
(3) BHUVI BHARDWAJ
D/O SAMIDHA & RAKESH BHARDWAJ
(4) YUVI BHARDWAJ
D/O SAMIDHA & RAKESH BHARDWAJ
ALL RESIDING AT
34/1, WARD NO. 1 FIRST FLOOR,
NEW QUTUB APARTMENT,
DESU ROAD, NEAR RAWAT BAKERY,
MEHRAULI, NEW DELHI-110030 ....... RESPONDENTS
DATE OF INSTITUTION : 23.09.2023
ARGUMENTS HEARD ON : 13.12.2023
DATE OF JUDGMENT : 22.02.2024
JUDGMENT
1. This is a revision petition filed on behalf of the revisionist Rakesh Bhardwaj under Section 397 Cr.P.C Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.02.22 16:31:34 +0530 CA No. 372/2023 Rakesh Bhardwaj vs State & Ors. Page 1 of 8 against the impugned orders dated 08.06.2023 and 08.08.2023 passed by the Ld. Trial Court.
2. The facts in brief of the revision are that a petition u/s 12 of the Protection of Women from Domestic Violence was filed by the respondent no. 2 under the title Shamidha Sharma and Ors. Vs. Rakesh Bharadwaj and by order dated 03.02.2020, Ld. M.M. (Mahila Court-03) South, directed the husband to pay Rs 30,000/- p.m. as interim maintenance to his minor daughters from the date of filing of the petition till pendency of trial. Thereafter, on 23.11.2020, the respondent no. 2 (now decree holder (i.e. DH) filed an execution petition (Ex.148/20) before the executing court of Ld M.M. (Mahila Court-03) Saket against appellant (now judgment debtor i.e. JD) for a sum of Rs. 9 lacs approximately for the period June 2018 to November 2022.
3. The accused being aggrieved by the order dated 08.06.2023, vide which warrants of arrest and warrants of attachment were issued and against order dated 08.08.2023, vide which warrant of arrest was issued, has filed this revision petition for setting aside the impugned orders on following grounds:-
i. That the order passed by Ld. Trial court is against the nature of justice, arbitrary, illegal and not passed on the basis of correct materials and facts ii. Ld. Trial Court failed to consider that the reasons stated by the counsel for revisionist for his non-
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PURSHOTTAM
PURSHOTTAM PATHAK
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appearance were based on true grounds supported with medical documents which clearly depicts the true mental condition and health of the revisionist.
iii. Ld. Trial Court failed to consider that the exemption sought on behalf of the revisionist was not for permanent exemption and only for one day.
iv. That the revisionist on the said dates i.e. 08.06.2023 and 08.08.2023 could not appear before the Ld. Trial Court due to unavoidable circumstances and for the reasons stated but he was represented through his counsel.
4. Ld. Counsel for revisionist argued that the Trial Court did not consider the exemption application, supported with medical documents and passed the order arbitrarily without application of judicial mind. Ld. Counsel further argued that order dated 08.06.2023 and 08.08.2023 are illegal as no such order can be passed under DV Act. Hence, same are liable to be set-aside.
5. In order to appreciate the facts and circumstances on record as well as the issues emerging from the revision, it is necessary to reproduce the relevant provisions of the Protection of Women from Domestic Violence Act, 2005 (briefly Act 2005), the Women from Domestic Violence Rules of 2006 (in brief Rules 2006) under the Act and the Code of Criminal Procedure, 1973 (briefly Code 1983):Digitally signed
Section 31 (1) of the Act, 2005 : by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.02.22 16:31:46 +0530 CA No. 372/2023 Rakesh Bhardwaj vs State & Ors. Page 3 of 8
A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and 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.
Rule 6 (5) of Rules 2006 :
The applications u/s 12 shall be dealt with and the orders enforced in the same manner laid down u/s 125 of the Code of Criminal Procedure, 1973 (2 of 1974).
Section 125 (3) :
If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fine, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be], remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
6. How the warrant of attachment are to be executed, its scheme is embodied in section 421 Cr.P.C. Section 421 Cr.P.C provides as under:-
421. Warrant for levy of fine.
(1)When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may -(a)issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;(b)issue a warrant to CA No. 372/2023 Rakesh Bhardwaj vs State & Ors. Page 4 of 8Digitally PURSHOTTAM signed by PURSHOTTAM PATHAK PATHAK Date: 2024.02.22 16:31:52 +0530 the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter :Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
7. The movables or immovable of the JD may be attached by invoking the provisions of section 421 Cr.P.C. and when the properties are or could not be attached, then warrant of arrest may be followed against the JD. Therefore, the warrant of arrest could be after invoking the provisions of section 421 Cr.P.C.
8. Thus, it is only after the Magistrate has exhausted the aforementioned two modes of recovery, the Magistrate can sentence the JD to imprisonment when the said two modes fail, otherwise not.
9. However, when it appears to the Magistrate that issuing of distress warrant would be futile exercise, the Magistrate can then straightway issue warrant of arrest after issuing show cause notice.
10. The scheme of legislature spread in the Act 2005, the Rules 2006 and also the enforcement of maintenance order u/s 125 Cr.P.C. are to be read together. The enforcement of maintenance order is embodied in section 125 (3) Cr.P.C. It provides that for every breach of order, warrants for levying the amount due may be issued and there may be sentenced to such person for the whole or Digitally signed by CA No. 372/2023 Rakesh Bhardwaj vs State & Ors. PagePURSHOTTAM PURSHOTTAM 5 of 8 PATHAK PATHAK Date: 2024.02.22 16:31:56 +0530 any part of each months allowance remaining unpaid, after the execution of such warrant and it also provides that there may be imprisonment for a term which may extend to one month or until payment if sooner is made. So it is apparent that there should be first warrant of attachment, then if the amount is unpaid, there may be imprisonment for a term prescribed.
11. Adverting to the facts of present case, the Executing Court issued notice to JD on 17.03.2021 and JD appeared on 08.11.2021. On 09.03.2022 JD conceded that he has not paid any amount in terms of interim order dated 03.02.2020, hence, warrant of attachment of movable property of JD was issued. Warrant of attachment issued against property of JD remained unserved and NBWs were issued against JD on 28.07.2022 and on several occasions thereafter. On 10.10.2020 JD appeared and submitted that he has no money or property to pay towards maintenance thus warrant of attachment were again directed for 04.01.2023. On 08.06.2023 Trial court passed the followring order:-
"An Exemption application moved on behal fof JD stating that he has to attend funeral of his uncle and hence, he cannot appear before the court. Considering the submissions, exemption is allowed for today only.
However, it is submitted by Ld. Counsel for DH that no payment has been made by JD since November 2022. An arrear amounting to Rs. 15 lakh approximately is still due upon JD. On every date, JD seeks time on the ground that he will arrange some funds and make payment accordingly, however, no payment is being made. It appears that JD is misleading this court.
Considering the conduct as well as repeated non payment of maintenance, fresh warrants of arrest as well as warrants of attachment of movable property of JD be issued to be executed Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK CA No. 372/2023 Rakesh Bhardwaj vs State & Ors. Page 6 of 8 PATHAK Date:
2024.02.22 16:32:03 +0530 through DCP concerned on filing of PF along with list of articles returnable on the next date of hearing. Steps be taken within a week"
12. JD who was not present was exempted from appearance but fresh warrant of arrest as well as warrant of attachment were issued. JD again remained absent, then warrants of arrest were directed on 08.08.2023 which were executed with followring observations:-
"An exemption application has been moved on behalf of JD. No ground for exemption is disclosed in the application. Exemption application is hereby disallowed.
On the last date of hearing, warrants of attachment as well as warrants of arrest were issued against JD, however, no report has been received. It is to be noted that several times warrants of attachment have been issued against movable/immovable property of JD, however, every time they remained unexecuted. Even today, Ld. Counsel for JD submits that JD would have appeared before the court, if warrants of arrest were not issued against him. It is quiet apparent from the submission made by Ld. Counsel for JD that JD is very well aware that he has to remain present before the court but he is deliberately evading.
It is also pertinent that JD has been repeatedly absent and warrants of arrest were issued on previous occasion as well. One such order of this court was set aside by Ld. Sessions Court vide order dated 27.03.2023 with a direction to JD to appear before Trial Court as and when required. Despite having such orders of Ld. Sessions court on record, JD is deliberately not appearing before the court. It is quiet evident that JD has made complete mockery of the leniency showed to him by Ld. Sessions Court. Needless to say, he is in continuous defiance of order of this court and Ld. Sessions Court.
As far as payments are concerned, as per Ld. Counsel for DH JD had made a payment of Rs. 1 lakh, that too in November 2022. Since then, time is being sought on behalf of ID on one pretext or other. When asked about payments from Ld. Counsel for JD, he is misleading the court and not giving a clear answer. Considering the conduct and repeated non payment of interim maintenance as well as non appearance of JD, let fresh warrants of arrest be issued against JD to be executed through DCP concerned on filing of PF returnable on the next date of hearing. Steps be taken within a week.
It is specifically directed that the person executing the warrants shall visit all the addresses of JD. He shall also contact DH before going to the address of JD at her contact No. PURSHOTTAM PATHAK CA No. 372/2023 Rakesh Bhardwaj vs State & Ors. Page 7 of 8 Digitally signed by PURSHOTTAM PATHAK Date: 2024.02.22 16:32:08 +0530 9911366882 and DH is at liberty to accompany the concerned official for execution of warrants of arrest. It is made clear that at least three attempts will be made to execute the warrants issued against JD".
13. Therefore, executing court has followed the procedure of law to the extent of issuing notice to JD on execution petition of DH, then warrant of attachment and then warrants of arrest to secure attendance of JD/appellant before the court.
14. Further the warrants of arrest has already been executed. Thus, the order of Ld. Trial Court vide order dated 08.06.2023 and 08.08.2023 has already achieved finality much before the disposal of the appeal by this court. Thus, at this stage any direction to the Ld. Trial Court for cancellation of warrant being unsustainable is not maintainable.
15. In terms of the above discussion, the present revision petition is dismissed.
16. TCR alongwith a copy of this judgment be sent to the Ld. Trial Court
17. Revision file be consigned to the record room after due compliance. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.02.22 16:32:14 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 22nd DAY OF FEBRUARY, 2024 SAKET COURTS: N.D (This judgment contains total 8 signed pages) CA No. 372/2023 Rakesh Bhardwaj vs State & Ors. Page 8 of 8