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2013 DIGILAW 1179 (AP)

A. T. G. Srinivas Rao v. Pushkarini

2013-12-17

R.KANTHA RAO

body2013
Judgment 1. This criminal petition is filed under Section 482 of Cr.P.C. to quash the proceedings in DVC No. 1 of 2012 filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) on the file of the XI Special Metropolitan Magistrate, Secunderabad. 2. Heard the learned counsel appearing for the petitioner, the de facto complainant and the learned Additional Public Prosecutor representing the State. 3. The brief facts necessary for considering the criminal petition are that the marriage of the first respondent was performed with the petitioner on 14.08.2006, the marriage was consummated, thereafter some disputes arose between the parties which resulted in filing the petition for dissolution of marriage (O.P.No.500 of 2008) in the Family Court, Secunderabad. But, the petition was dismissed for the petitioner’s absence in attending the Court pursuant to its direction for reconciliation. Subsequently, the first respondent filed a complaint before the Protection Officer under the Act alleging physical, mental emotional, verbal and economic harassment by the petitioner against her. Thereafter, from the report of the Protection Officer, DVC No.1 of 2012 under Section 12 of the Act came to be filed before the XI Special Metropolitan Magistrate, Secunderabad which case is now sought to be quashed by this Court in exercise of powers under Section 482 Cr.PC. 4. The ground on which the domestic violence case was sought to be quashed is that four years after parting ways between the parties, the complaint is filed under the Act, cognizance of which is barred by virtue of the limitations provided for in Section 468 of Cr.P.C. and in view of the express provisions of Sections 28, 31 and 32 of the Act, 2005 read with Rules 15(6) of the Protection of Women from Domestic Violence Rules (for short ‘the Rules). 5. According to the petitioner, the second respondent last resided with him nearly four years prior to filing of the complaint by her before the Protection Officer under the Act and therefore, the learned Magistrate ought not to have taken cognizance of the complaint filed by her. 6. 5. According to the petitioner, the second respondent last resided with him nearly four years prior to filing of the complaint by her before the Protection Officer under the Act and therefore, the learned Magistrate ought not to have taken cognizance of the complaint filed by her. 6. Learned counsel appearing for the petitioner invited the attention of this Court to Section 28 of the Act which deals with procedure and lays down that all proceedings under Sections 12, 18, 19, 20, 22 and 23 and the offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Section 31 of the Act deals with penalty for breach of protection order by respondent and Section 32 of the Act lays down cognizance and proof, notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence under sub-section (1) of Section 31 shall be cognizable and non-bailable and also 15(6) of the Rules lays down that when charges are framed under Section 31 or in respect of offences under Section 498-A of the Indian Penal Code, 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 the Code of Criminal Procedure,1973 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. 7. Therefore, according to the learned counsel for the petitioner the proceedings contemplated under the 2005 Act are the criminal proceedings and any complaint made under the Act has to be filed within the period of limitation prescribed under Section 468 of the Cr.P.C. if it is not filed within the prescribed period therein, the complaint would be barred by limitation and therefore is liable to be rejected. 8. On the other hand, the learned counsel appearing for the first respondent-wife would submit that there is no limitation provided for under the entire 2005 Act for taking cognizance of domestic violence case, even if the parties to the case became separated four years prior to the complaint, according to the learned counsel, Section 468 of Cr.P.C. does not come into picture till an order is passed under Section 89 of the Act. Therefore, the learned counsel seeks to dismiss the criminal petition filed by the petitioner. Therefore, the learned counsel seeks to dismiss the criminal petition filed by the petitioner. SINGH GREWAL v. STATE OF PUNJAB AND ANOTHER (2011 AIR SCW 6259) wherein the Hon’ble Supreme Court at para 24 held as follows: “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, AIR2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508 .” 10. In INDERJIT SINGH GREWAL’s case 1st cited supra, the Hon’ble Supreme Court was dealing with the question as to whether a magistrate while dealing with a complaint under the provisions of Domestic Violence Act, can grant reliefs sought under the Act contrary to the judgment and decree of divorce by mutual consent passed by the Family Court presided over by a District Judge. In the case before the Supreme Court the contention of the wife was that she and her husband obtained decree of divorce by mutual consent as they wanted to settle in United States and therefore, they had decided to get divorce on paper so that the appellant may go to U.S.A. and get American citizenship by negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry the complainant. She further alleged that even after decree of divorce she had been living with the appellant till 7.2.2009 and continued co-habitation with him and they had visited several places together during this period. The child had been forcibly snatched from her by the appellant. Therefore, she was entitled to the custody of the minor child along with other reliefs prayed for in the domestic violence case. 11. The question therefore before the Supreme Court was whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court. The Supreme Court referred to an earlier judgment in M. Meenakshi & Ors. 11. The question therefore before the Supreme Court was whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court. The Supreme Court referred to an earlier judgment in M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470 , wherein it was observed as under: “It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof.” 12. In INDERJIT SINGH GREWAL’s case 1st cited supra, the contention of the wife was that the decree of divorce by mutual consent was obtained by making false representation and playing fraud on the Court which passed the decree. Obviously from the facts of the case, the wife is also a party to the fraud and misrepresentation. 13. The Supreme Court dealing with the aforesaid facts held as follows: “From the above, it is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings. Respondent no.2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime. No one should have an advantage from his own wrong. The statements/allegations made by the respondent no.2 patently and latently involve her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any equitable relief. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. The appeal succeeds and is allowed. 14. In INDERJIT SINGH GREWAL’s case 1st cited supra, the Supreme Court incidentally expressed its view to the submission made by the counsel appearing for the wife on the issue of limitation and said that the 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. 15. The portion of the observation relied on by the learned counsel appearing for the petitioner in INDERJIT SINGH GREWAL’s case 1st cited supra, in my view is an obiter dictum but no ratio has been laid down by the Supreme Court as to the limitation applicable to the various provisions under the Act, 2005. The Supreme Court in my view obviously referring the penal provisions contained in the Act, 2005 but not to the other provisions. Section 28 of the Act dealing with the procedure only states as to the procedure required to be valid in enquiries under the Act. The penal provisions under the Act are contained only under Sections 31, 32, 33 and 34 of the Act. The penal provisions would get attracted only when a breach of order has been committed or when a protection officer failed to discharge his duty assigned to him under the Act. The remaining provisions only provide for remedies of civil nature. Therefore, only a breach of order passed under the Act or dereliction of duty by the protection officer would constitute offence under the Act. The remaining provisions only provide for remedies of civil nature. Therefore, only a breach of order passed under the Act or dereliction of duty by the protection officer would constitute offence under the Act. A complaint made seeking several reliefs by the aggrieved person under various provisions of the Act, cannot be said to be in relation to penal provision attracting the bar of limitation engrafted under Section 468 of the Cr.P.C. Various reliefs which an aggrieved person is entitled to claim under the provisions of the Act are civil in nature. Therefore, an aggrieved person can file a complaint notwithstanding the bar contained in Section 468 of Cr.P.C. and the magistrate can grant those reliefs if the aggrieved person is entitled for the said reliefs. It is now well settled that even though the separation between the parties is prior to coming into force of the Act, 2005, the provisions under the Act can be invoked. Thus, I see no substance in the contention put-forth by the learned counsel appearing for the petitioner that the complaint made by the first respondent-wife is barred by limitation as per the provisions of Section 468 Cr.P.C. Some other judgment relied on by the learned counsel for the petitioner being not applicable to the facts of the case on hand, they have not been referred to in this order. 16. For the foregoing reasons, the criminal petition is dismissed.