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2013 DIGILAW 1567 (RAJ)

Rakesh v. State of Rajasthan

2013-09-09

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed by the petitioner Rakesh challenging the order dated 14.8.2012 passed by the learned Magistrate, Gram Nyayalaya, Mandore in Cr. Misc. Case No. 96/2012 whereby the learned Magistrate rejected the application filed by the petitioner under Section 468 Cr.P.C. for dropping the proceedings registered on the complaint filed by the respondent No. 2 under the provisions of Protection of Women From Domestic Violence Act, 2005. 2. Briefly stated, the facts necessary for the disposal of this miscellaneous petition are noted herein below: 3. The respondent No. 2 Smt. Usha filed a complaint against the petitioner in the trial Court under the provisions of the Protection of Women From Domestic Violence Act, 2005 on 2.4.2009. She alleged in the complaint that her marriage was solemnized with the petitioner on 8.3.2007. She was subjected to cruelty and was turned out of the matrimonial home on 17.9.2007. She filed the complaint in the trial Court alleging the commission of domestic violence with her. The trial Court issued notice to the petitioner. 4. The petitioner appeared in the trial Court and filed an application under Section 468 Cr.P.C. seeking dropping of the proceedings of the complaint as being barred by limitation. The said application came to be rejected by the trial Court by its order dated 14.8.2012 and hence, the instant miscellaneous petition. 5. The petition was pending on the defect side and the learned counsel for the petitioner has not removed the defects despite the lapse of nearly nine months since the petition was filed before this Court. 6. I have hear learned counsel for the petitioner on merits and perused the order impugned. 7. Learned counsel for the petitioner places reliance on the decision rendered by the Hon'ble Apex Court in Inderjit Singh Grewal v. State of Punjab & Anr., reported in 2012 Cr.L.R. (SC) 16 and contends that a complaint under the Domestic Violence Act, 2005 cannot be entertained beyond a period of one year from the date of incident of domestic violence. He urged that in the instant case, the complaint was admittedly filed after a lapse of more than one and a half year from the date on which the complainant claims to have been turned out of matrimonial home and thus, the proceedings of the complaint deserve to be quashed as being barred by limitation. 8. He urged that in the instant case, the complaint was admittedly filed after a lapse of more than one and a half year from the date on which the complainant claims to have been turned out of matrimonial home and thus, the proceedings of the complaint deserve to be quashed as being barred by limitation. 8. Learned counsel urged that the Hon'ble Apex Court in the case of Inderjit Singh Grewal has in unequivocal terms held that the provisions of Section 468 Cr.P.C. apply to the proceedings under the Domestic Violence Act. It is thus urged that since the complaint was filed before the trial Court beyond the period of one year from the accrual of cause of action, as such it is barred by limitation. 9. This Court is primarily required to consider whether or not the judgment rendered by the Hon'ble Apex Court in the case of Inderjit Singh Grewal (supra) which is relied upon by the learned counsel for the petitioner to buttress his contention regarding the proceedings of the complaint being barred by limitation applies to the case at hand? The Hon'ble Apex Court whilst considering Inderjit Singh's case was seized of a situation where the marriage of the spouses was dissolved by a decree of mutual consent passed by the competent civil Court. The wife thereafter initiated proceedings under the Domestic Violence Act seeking to have the decree passed by the Civil Court set at naught on the ground of fraud. In those circumstances, the Hon'ble Apex Court observed that proceedings of a criminal complaint under the provisions of Domestic Violence Act could not be resorted to for setting at naught the decree passed by civil Court. The relevant portion of the judgment in Inderjit Singh Graval's case are reproduced hereunder: "2. The instant appeal reveals a very sorry state of affair where the wife files a criminal complaint before the competent Court to initiate criminal proceedings against her husband alleging that they had obtained decree of divorce by playing fraud upon the Court without realising that in such a fact-situation she herself would be an accomplice in the crime and equally responsible for the offence. More so, the appeal raises a substantial question of law as to whether the judgment and decree of a competent civil Court can be declared null and void in collateral proceedings, that too, criminal proceedings. 10. More so, the appeal raises a substantial question of law as to whether the judgment and decree of a competent civil Court can be declared null and void in collateral proceedings, that too, criminal proceedings. 10. The question does arise as to whether reliefs sought in the complaint can be granted by the criminal Court so long as the judgment and decree of the civil Court dated 20.3.2008 subsists. Respondent No. 2 has prayed as under: "It is therefore prayed that the respondent No. 1 be directed to hand over the custody of the minor child Gurarjit Singh Grewal forthwith. It is also prayed that the respondent No. 1 be directed to pay to her a sum of Rs. 15,000/- per month by way of rent of the premises to be hired by her at Ludhiana for her residence. It is also prayed that all the respondents be directed to restore to her all the dowry articles as detailed in Annexures A to C or in the alternative they be directed to pay to her a sum of Rs. 22,95,000/- as the price of the dowry articles. Affidavit attached." Thus, the reliefs sought have been three folds: (a) Custody of the minor son; (b) right of residence; and (c) restoration of dowry articles. 11. It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law". It is a trite that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. "Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or. saved by the application of any equitable doctrine". An act of fraud on Court is always viewed seriously. [Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383 : 2010 AIR SCW 5281]. 12. However, the question does arise as to 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. [Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383 : 2010 AIR SCW 5281]. 12. However, the question does arise as to 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 issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906 :1996 AIR SCW 301 ; and Tayabbhai M. Bagasanoalla & Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240 : 1997 AIR SCW 1285) ." 10. The Hon'ble Apex Court quashed the proceedings of the complaint under the Domestic Violence Act holding them to be collateral proceedings initiated to unsettle the decree of divorce passed by the civil Court with the consent of the parties. The proceedings were also held to be highly belated. In the context of the peculiar facts of the case, the Hon'ble Apex Court in para 24 of the judgment appreciated the argument advanced by the learned counsel when he proposed that Section 468 Cr.P.C. would apply to the proceedings under the Act of 2005. The Hon'ble Apex Court observed as under: "24. 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 pre-ponderous 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, AIR 2007 SC 2762 : 2007 AIR SCW 4998 ; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508 . " 11. " 11. The Hon'ble Apex Court did not propound in the said judgment that the proceedings of a complaint under the Domestic Violence Act should invariably be quashed by applying Section 468 Cr.P.C. The observations made in the Hon'ble Apex Court judgment unless they directly decide a question of law, have to be considered in the context to the factual scenario of the case under consideration. As has been observed above, in the case before the Hon'ble Apex Court, the factual scenario was that the wife after consenting to grant of mutual divorce under Section 13B of the Hindu Marriage Act attempted to unsettled the decree passed by the competent civil Court by resorting to the criminal proceedings belatedly. In the background the Hon'ble Apex Court held that the proceedings of the complaint amounted to travesty of justice. 12. In the opinion of this Court, the contention advanced by Mr. Narpat Singh, learned counsel for the petitioner that the provisions of Section 468 Cr.P.C. would be applicable to each proceeding under the Domestic Violence Act is totally unacceptable. 13. For the sake of convenience, the relevant provisions of law which are germane to the issue under consideration are quoted herein-below. Section 468 Cr.P.C. reads as below: 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 a 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." The relevant provisions of the Domestic Violence Act are quoted hereunder: "18. (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." The relevant provisions of the Domestic Violence Act are quoted hereunder: "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 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. 19. 19. Residence orders.- (1) While disposing of an application under subsection (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order- (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing of the shared household or encumbering the same; (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman. (2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. (3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence. (4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly. (5) While passing an order under sub-section (1), sub-section (2) or subsection (3), the Court may also pass an order directing the officer in charge of the nearest Police Station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order. (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (7) The Magistrate may direct the Officer in-charge of the Police Station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. (8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to. 20. Monetary reliefs.-(1) While disposing of an application under subsection (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,- (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the Incharge of the Police Station within the local limits of whose jurisdiction the respondent resides. (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under subsection (1). (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under subsection (1). (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent. 21. Custody orders.-Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit. 22. Compensation orders.-In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. 30. Protection Officers and members of service providers to be public servants.-The Protection Officers and members of service providers, while acting or purporting to act in pursuance of any of the provisions of this Act or any rules or orders made thereunder shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860). 31. Penalty for breach of protection order by respondent.-(1) 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. Penalty for breach of protection order by respondent.-(1) 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. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions. 32. Cognizance and proof.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under subsection (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." 14. Section 468 Cr.P.C. puls an embargo upon the Court from taking cognizance of the category of offences specified in sub-section (2) after the expiry of period of limitation. Thus, the prime requirement for applicability of Section 468 Cr.P.C. would be where the Court takes COGNIZANCE OF AN OFFENCE beyond the period of limitation. 15. The various provisions of Domestic Violence Act which are quoted above spell out the area of operation of the Act and prescribe the various reliefs which can be granted to the aggrieved person subjected to domestic violence. The provisions under Sections 18, 19, 20, 21 and 22 do not prescribe any offence. These provisions were simply enacted to provide the remedy of monetary relief/protection orders of residence orders to the aggrieved ladies subjected to domestic violence. 16. The only offence provided for under the Domestic Violence Act is defined under Section 31 of the Act. The said provisions becomes operative when the respondent defies a protection passed under the Act. These provisions were simply enacted to provide the remedy of monetary relief/protection orders of residence orders to the aggrieved ladies subjected to domestic violence. 16. The only offence provided for under the Domestic Violence Act is defined under Section 31 of the Act. The said provisions becomes operative when the respondent defies a protection passed under the Act. Thus, even if in that case, Section 468 Cr.P.C. was to be applied, obviously the limitation would commerce from the date of respondent breaches the protection order. 17. Though an application under the provisions of Domestic Violence Act is loosely termed as a complaint but in strict terms, it is not a complaint seeking punishment of an offender. In this view of the matter, this Court is of the opinion that the provisions of Section 468 Cr.P.C. could only be applied to a proceeding under the provisions of Domestic Violence Act where the Court is faced with a situation where a protection order issued under the Act is breached and the complaint is filed beyond one year which would be the period of limitation for the offence under Section 31 of the Act. Admittedly in the case at hand, the said situation has not arisen. Thus, the application filed by the petitioner under Section 468 Cr.P.C. was rightly rejected by the trial Court. The order impugned cannot be held to be illegal, perverse or amounting to an abuse of process of Court so as to invoke the inherent powers of this Court under Section 482 Cr.P.C. for quashing the same.Accordingly, the miscellaneous petition being bereft of any merit is rejected.Petition dismissed. *******