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2014 DIGILAW 1629 (RAJ)

Satya Narain Gupta v. State of Raj.

2014-10-08

NISHA GUPTA

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JUDGMENT : Nisha Gupta, J. This writ petition under Article 226 and 227 of the Constitution has been filed against the order dated 3.9.2014 for quashing FIR No. 898/2014 registered at Police Station Vaishali Nagar, Jaipur City (South) for the offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act of 2005) and also complaint No. 6/2014 under Section 12 of the Act of 2005 pending before Metropolitan Magistrate No.14, Jaipur. 2. The contention of the petitioner is that he is a person working in BSNL, Jaipur respondent No.4 is the wife of the petitioner. She is not living with the petitioner since 2005. Matrimonial disputes are pending between the parties. Respondent No.4 has moved an application under Section 12 of the Act of 2005 on 3.9.2014, an interim order as regards to payment of medical expenses for the respondent No.4 has been passed. The petitioner is ready to comply with the order passed on 3.9.2014 but there are some formalities which are to be fulfilled as per regulations of BSNL and it will take time. The respondent has lodged an FIR for the offence under Section 31 of the Act of 2005 just to harass the petitioner. The contention of the petitioner is that FIR No. 898/2014 is abuse of the process and not maintainable as order dated 3.9.2014 has not been passed under Section 18 of the Act of 2005 and FIR under Section 31 of the Act of 2005 is not maintainable and be quashed. Per contra, the contention of the counsel for the respondent No.4 is that an interim order has been passed vide order dated 3.9.2014 and admittedly it has not been complied with hence FIR is justified and specific allegations have been lodged hence the FIR should not be quashed. 3. Heard the learned counsel for the petitioner and learned Public Prosecutor and perused the impugned order as well as the other documents presented by the petitioner. 4. A bare perusal of the FIR No. 898/2014 goes to show that it has been lodged only on the allegations that order dated 3.9.2014 has not been complied with and hence the petitioner has committed breach of the order and suitable action should be taken against him under Section 31 of the Act of 2005. 4. A bare perusal of the FIR No. 898/2014 goes to show that it has been lodged only on the allegations that order dated 3.9.2014 has not been complied with and hence the petitioner has committed breach of the order and suitable action should be taken against him under Section 31 of the Act of 2005. Section 31(1) of the Act of 2005 reads as under: "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." 5. A plain reading of the above clearly shows that opening words of the above provisions are for the breach of protection order and admittedly, protection order has been defined under Section 2(o) which means that order made in terms of Section 18 and Section 18 provides protection orders by which respondent could be prohibited for committing any act of domestic violence or abatement of any act of violence and furthermore but here in the present case, order dated 3.9.2014 clearly speaks that monetary relief as regards the medical expenses has been allowed to the respondent which clearly falls under the provisions of Section 20 sub clause (1) (b) and when order dated 3.9.2014 has not been passed under Section 18 and not an interim protection order, the FIR for the offence under Section 31 is not maintainable as held by the Kerala High Court in Kanaka Raj v. State of Kerala Cr. Misc. Case No. 1322/2009 decided on 24.6.2009 wherein it has been clearly held that if the order passed by the Magistrate is a protection order or an interim protection order then only registration of the case under Section 31 is justified. Here in the present case, the order dated 3.9.2014 is not an interim protection order under Section 18, hence for its breach, no offence under Section 31 sub-clause (1) has been committed and FIR under Section 31 of the Act of 2005 is abuse of the process of the court and the same is liable to be quashed. 6. Here in the present case, the order dated 3.9.2014 is not an interim protection order under Section 18, hence for its breach, no offence under Section 31 sub-clause (1) has been committed and FIR under Section 31 of the Act of 2005 is abuse of the process of the court and the same is liable to be quashed. 6. During the course of arguments, the learned counsel for the petitioner has submitted that the petitioner is not aggrieved of the order dated 3.9.2014 and he is ready to abide by the above order. Furthermore, reliance has also been sought as regards quashing of the proceedings pending in complaint case No. 6/2014. Admittedly, the proceedings are under Section 12 of the Act and competent Court is seized with the matter. Reply has been filed by the petitioner. An interim order has been passed and further proceedings are pending, hence when competent court is seized with the matter, there is no reason to quash the complaint under Section 12 of the Act of 2005 and for this, the petition is devoid of merits and liable to be rejected. 7. Accordingly, the petition is partly allowed. The impugned FIR No. 898/2014 registered at Police Station Vaishali Nagar, Jaipur City (South) for the offence under Section 31 of the Act of 2005 is abuse of the process of the court and the same is liable to be quashed and is accordingly quashed. However, there is no reason to quash the complaint No. 6/2014 under Section 12 of the Act of 2005 pending before Metropolitan Magistrate No.14, Jaipur and for this, the petition is devoid of merits and liable to be rejected and the same is accordingly dismissed. Petition Partly Allowed as above.