Bangalore District Court
/ Y.Nagaraj vs Years on 28 April, 2015
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
(CCH.NO 66)
PRESENT
SRI.N.R.CHENNAKESHAVA B.A.,LL.B.,
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE
Dated this the 28TH day of April, 2015
CRL.APPEAL.NO.642/2014
Appellant / Y.Nagaraj, S/o R.Yellappa, Aged 45
Accused: years, R/at No.48, 4th MainRoad,
Byrasandra, Jayanagar 1st Block East,
Bangalore.
(By Sri H.C.Nagaraj, Adv)
V/s
RESPONDENT/ Smt.B.D.Jayalakshmi W/o Y.Nagaraj,
complainant: Aged about 39 years, R/at No.48,
4th MainRoad, Byarasandra, Jayanagar
1st Block East, Bangalore-560011.
(By Public Prosecutor)
*****
JUDGMENT
Appellant preferred this Appeal against respondent, u/Sec. 29 of Protection of Women from Domestic Violence Act, 2005, being aggrieved by the 2 Crl.A.No.642/2014 impugned order on I.A.No.I to III, passed by MMTC-VI, Bangalore in Crl.Mis.217/2013, dated:23/5/2014.
2. Appellant is the respondent and respondent is the petitioner before the trial court. Hence I would like to refer the parties in this Appeal with reference to ranks, which they held in the trial court.
3. Before the trial court, petitioner filed the petition u/Sec.12 r/w Sec.18, 19, 20 and 22 of Protection of Women from Domestic Violence Act, 2005, praying the court to grant, Protection order, Residence order, monthly maintenance of Rs.20,000/- and compensation of Rs.20,00,000/-.
4. Brief facts that lead into this Appeal are that :
Marriage of petitioner and respondent, solemnized on 9/11/1995 and then she lived at her matrimonial home. Later, respondent started to harass her physically and mentally and demanded to bring dowry from her 3 Crl.A.No.642/2014 maternal home. Petitioner and respondent having 2 male children. Respondent's mother also instigated the respondent to assault the petitioner. Respondent assaulted the petitioner and as a result she suffered grievous injuries. Hence, she lodged complaint before Basavangudi Police, which has been registered of the offences p/u/Sec.498A, 328 and 506 r/w 34 of IPC.
Subsequently she was threatened by the respondent to withdraw the case. Said case was committed to Sessions and numbered as S.C.No.322/2011. However, the very case ended an acquittal. Subsequent to acquittal, respondent has developed even more hatredness towards petitioner as well as his first son. Petitioner and her children have no other place of residence and as such they completely depended on the respondent for their survival. However the respondent has completely deprived the petitioner and her children. Respondent has completely neglected to take care of petitioner and her children. Hence, petitioner with no other option left, approached the court seeking reliefs. Respondent getting 4 Crl.A.No.642/2014 Rs.46,000/ P.M. However, respondent has willfully neglected to take care of petitioner as well as children and without financial support of respondent, petitioner is unable to educate children. Taking undue advantage of pathetic situation of petitioner, respondent is not even providing money for the basic necessity of petitioner and her children, so as to harass them to withdraw the case and to leave the matrimonial house. Hence, the petition.
5. Along with the main petition petitioner has filed I.A.No.1 to I.A.No.3, seeking different reliefs.
6. At I.A.No.I petitioner prayed the court to pass an order, to restrain the respondent from dispossessing or disturbing the possession of petitioner from the shared household, to restrain his relatives from entering any portion of the shared household in which the petitioner resides, to restrain him from alienating the shared household in any manner and to restrain him from renouncing the shared household.
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7. At I.A.No.II petitioner sought interim maintenance of Rs.25,400/- p.m. for herself and her children.
8. At I.N.No.III, she prayed to pass an order, prohibiting the respondent from committing any act of domestic violence or aiding or abetting the commission of acts of domestic violence, or causing violence to her and her children during the pendency of proceedings.
9. In support of above Applications, petitioner also sworn affidavit separately, stating that on 27.6.2013 respondent and his mother assaulted her to withdraw the complaint lodged by her, before Siddapura police station in Crl.No.75/2011, to which she has not agreed and hence she was physically assaulted by the respondent. Petitioner and her children are unable to live in the house, in view of physical and mental torture by respondent. Respondent is guilty of having committed the offences of Domestic Violence against petitioner and her 6 Crl.A.No.642/2014 children. Respondent is getting income of Rs.46,000/- P.M and he willfully neglected her and her children and hence, she is finding difficult to take maintain the house expenses as well as educational expenses incurred by the children. Respondent has threatened to dispossess her and her children, from the shared household. He is capable to pay maintenance to the petitioner.
10. Respondent by filing Memo, adopted the statement of objection filed to the main petition, as objection to I.A.No.1 to I.A.No.III. He contends that since petitioner is living with him and also enjoying all day by day requirements at his cost of respondent and hence, before considering I.A.No.1 to III, conducting enquiry is required as per law. Children are living with him and other expenses are born any by him. Hence, it is prayed court to pass order to conduct enquiry on I.A.No.1 to 3.
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11. Being aggrieved by the said order, respondent by preferring this Appeal, sets out the grounds of Appeal, as mentioned in the Appeal Memorandum and prayed this Court to set aside the impugned order dated 23.5.2014, by allowing this Appeal.
12. Heard arguments from both sides. I have perused the available materials on record. Learned counsel for respondent filed a memo with citation.
13. The points that arises for my consideration are:
1. Whether the impugned order passed by learned VI MMTC, Bangalore in Crl.Mis.217/2013 dated 23.5.2014, is illegal, perverse, not sustainable and hence calls for interference by this court and the matter is to be remitted back to the trial court, for fresh disposal?
2. What Order ?
14. My findings on the above points are :
1. POINT NO.1 : In the Affirmative 8 Crl.A.No.642/2014
2. POINT NO.2 : As per the final order, For the following :
REASONS
15. POINT NO.1 Before the trial Court, petitioner filed petition u/sec.12 of Protection of Women from Domestic Violence Act, 2005, seeking different reliefs u/Sec.18, 19, 20 & 22 of the '' Act''. Apart from that, she has also filed IA No.1 to 3 u/Sec.23(1 & 2) of the Act, praying the Court to restrain the respondent from dispossessing her from the shared household, to restrain him or his relatives from entering any portion of shared household in which she resides, to restrain him from alienating the shared household in any manner, to restrain him from renouncing the shared household. To direct him to pay Interim maintenance of Rs.25,400/- p.m. to her and her children, to pass an order prohibiting him from committing any act of domestic violence, during the pendency of proceedings.
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16. After filing statement of objections to the petition as well as I.A.I to III, by the respondent, trial Court after hearing I.A.No.I to III and by pronouncing the impugned common order, has rejected I.A.I, allowed, I.A.II partly and allowed I.A.III, directing the respondent to pay interim maintenance of Rs.3,000/- P.M. to the petitioner and restraining respondent from committing any acts of domestic violence against petitioner.
17. Learned counsel for respondent argued that the trial court exercised its discretion arbitrarily, without taking into consideration of facts and circumstances of the case and also materials on record and more so, the impugned order, which is against to Sec.28 of the Act, since the trial Court without conducting any enquiry as required u/Sec.28 of the Act, has passed the impugned order on the basis of materials placed by the petitioner. However, trial Court has not at all provided an opportunity to the respondent to place the materials on record. He further argued that if at all trial Court has 10 Crl.A.No.642/2014 proceeded to pass an ad-interim order, then it is justified. However, without passing any interim order, trial Court has caused notice on IA No.1 to III to respondent and that apart respondent has also filed statement of objections to IA No.1 to III and inspite of it trial court without conducting enquiry on IA No.1 to III, has hurriedly passed the impugned order, which is totally illegal and against to Sec.28 of the Act.
18. To support the contention, he has drawn the attention of this Court to Sec.23 as well as Sec.28 of the Act and he also drawn attention of this Court to a judgment reported in KCCR 2011 (3) 2221-Krishna Murthy Nookula V/s Y.Savitha.
The Head Note reads thus :
A. Protection of Women from Domestic Violence Act, 2005- Sections 20,22,23 and 28- Hearing -Right to- Since prior notice have been issued to the petitioner herein, by having declined grant of ex-parte relief to the respondent, Magistrate ought to have granted opportunity of hearing to the 11 Crl.A.No.642/2014 petitioner in terms of Section 28(1) of the Act of 2005.
B. Criminal Procedure Code, 1973- Section 313-Accused-Examination of,-Protection of Women from Domestic Violence Act, 2005- Sections, 18,19,20,21,22,23,28 and 31- Provisions-Applicability of,-Whether the Magistrate was under obligation to proceed under Section 313 of the Code, in respect of enquiry against the accused?- Held,yes-The Magistrate ought to have proceeded under the procedure prescribed in the Code of 1973, in terms of Sections 28 and 31, of the Protection of Women from Domestic Violence Act, 2005, for action under Sections 18,19,20,21,22 and 23 of the Act of 2005.
Basing on the ratio laid down in the aforesaid judgment, he vehemently argued that in view of the ratio laid down in the aforesaid judgment, the impugned order is not sustainable and hence matter requires to be remitted back to the trial Court for disposal on IA-1 to III.
19. Per contra, learned counsel for petitioner by addressing arguments, justifies the impugned order, since the trial Court has not committed any error in passing the impugned order, as the trial Court basing on the materials available on record, has passed the impugned order and hence this Court cannot interfere 12 Crl.A.No.642/2014 with the impugned order. Therefore he prayed this Court to confirm the impugned order.
20. I have carefully gone through the grounds urged in the Appeal Memo as well as rival contention, ratio laid in the aforesaid reported judgment and other materials on record. On going through Section 28(1) of the "Act", it is very clear that all the provisions u/sec.18,19,20,21,22 & 23 of the Act and offence u/sec.31 of the Act, shall be governed by the provisions of Cr.P.C. However, as per Sec.28(2)of the Act, the said procedure is not applicable as the very provisions specifies that while passing an ad-interim ex-parte order u/sec.23, the Court can lay down its own procedure in disposal of Application. It is pertinent to note that IA-1 to III were filed by the petitioner, invoking sec.23 of the Act, seeking different interim reliefs from the respondent. Ordersheet pertains to the petition before the trial Court, discloses that after filing the petition, learned Magistrate caused notice to the respondent on the main petition as 13 Crl.A.No.642/2014 well as IA-1 to III, who made his appearance through his counsel and resisted the main petition by filing statement of objections and he adopts the very statement of objections as against IA-1 to III. Therefore, it is very clear that under such circumstances, certainly trial Court should have proceeded to dispose of IA-1 to III, by following the procedure u/sec.28(1) of the Act. However, trial Court has not at all followed the very procedure. On the other hand, trial Court in disposing of IA-1 to III, has followed its own procedure, that too, without conducting enquiry as required under the provisions of Cr.P.C. More so, in view of ratio laid down in the aforesaid judgment, it is very clear that since the trial Court has caused prior notice on IA-1 to the respondent, by having declined grant of exparte relief to the petitioner, the learned Magistrate ought to have granted opportunity of hearing the respondent in terms of Sec.28(1) of the Act. In my view, certainly, the ratio laid down in the aforesaid judgment is aptly applicable to the case on hand, since the impugned order clearly disclose that trial Court has 14 Crl.A.No.642/2014 committed a grave error, without following established procedure u/sec.28 of the Act, while disposing of IA-1 to III. Hence, I am of the considered view that the impugned order is illegal, arbitrary and hence not sustainable. Upon careful scrutiny of trial Court records, it clearly disclose that the trial Court has not all conducted an enquiry as far as IA-1 to III is concerned, before disposing it off, even though it is mandatory as provided u/sec.28(1) of the Act. In my view, in view of Sec.28 of the Act, certainly, the procedure prescribed for summary trial i.e., trial of summons case, has to be followed by the trial Court. However, trial Court has not at all followed such procedure, which is against to law and therefore, it is very clear that there was no fair trial conducted by the trial Court. In my view, since the impugned order is against to law and illegal, certainly, impugned order is liable to be set aside and the matter is to be remitted back to the trial Court with a direction to dispose of IA-1 to III in accordance with law, as provided 15 Crl.A.No.642/2014 u/sec.28(1) of the Act. For the above reasons, I answer point No.1 "Accordingly."
21. POINT NO.2 : In view of my findings on above point, certainly, the impugned order is liable to be set aside and the matter is required to be remanded back to the trial Court for fresh disposal in accordance with law, by directing the trial Court to dispose of IA-1 to III within prescribed period. In the result, I proceed to pass the following:
ORDER Appeal preferred by Appellant u/Sec.29 of Protection of Women from Domestic Violence Act, 2005, is allowed. Consequently impugned order on IA No.1 to III dated:
23.5.2014, passed by trial court, is set aside.
Matter is remitted back to the trial Court with a direction to dispose of IA-1 to III filed u/sec.23(1)(2) of the Act, in accordance with law in the light to observations made above, by conducting an enquiry, as required u/sec.28(1) of the Act.
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Trial Court is hereby further directed to dispose of IA-1 to III, expeditiously.
Send back the Trial Court Records, with a copy of this Judgment to the trial court. (Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 28th day of April, 2014.).
(N.R.CHENNAKESHAVA) LXV Addl.City Civil and Sessions Judge, (CCH-66), BANGALORE.
17 Crl.A.No.642/2014Judgment pronounced in the open court, vide separately.
ORDER Appeal preferred by Appellant u/Sec.29 of Protection of Women from Domestic Violence Act, 2005, is allowed. Consequently impugned order on IA No.1 to III dated: 23.5.2014, passed by trial court, is set aside.
Matter is remitted back to the trial Court with a direction to dispose of IA-1 to III filed u/sec.23(1)(2) of the Act, in accordance with law in the light to observations made above, by conducting an enquiry, as required u/sec.28(1) of the Act.
Trial Court is hereby further directed to dispose of IA-1 to III, expeditiously.
Send back the Trial Court Records, with a copy of this Judgment to the trial court.
(N.R.CHENNAKESHAVA) LXV Addl.City Civil and Sessions Judge, (CCH-66), BANGALORE.
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