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Gujarat High Court · body

2016 DIGILAW 1328 (GUJ)

Kunal Jashwantlal Nayak v. State of Gujarat

2016-07-15

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. 1. Heard Mr. Harshil C. Dattani, learned advocate for Mr. P.P. Majmumdar, learned advocate for the applicants, whereas Mr. K.P. Raval, learned Additional Public Prosecutor for the opponent-State and Ms. Kiran Pandey, learned advocate for opponent No. 3. 2. The applicant No. 1 is a husband and respondent No. 3 is his wife, whereas, applicant Nos. 2 and 3 are parents and applicant No. 4 is sister of applicant No. 1. The applicants have challenged the judgment and order dated 11.07.2014 passed in Criminal Misc. Application No. 769 of 2014 by the Judicial Magistrate First Class at Vadodara below Exh.8 as well as order dated 01.08.2014 passed in Criminal Appeal No. 69 of 2014. By such impugned judgments both the Courts below have rejected the prayer of the present applicants to dismiss the complaint and to discharge them and thereby close the criminal proceedings against them on the ground that the Protection Officer, who has lodged the complaint before the trial Court, is not empowered to work as such and therefore, filing of complaint itself is illegal and hence, no proceedings can be initiated and continued against the present applicants. 3. It is an undisputed fact that the opponent No. 2 herein is wife and applicant No. 1 is her husband, whereas, applicant Nos. 2 and 3 are father and mother in law respectively, whereas, applicant No. 4 is sister-in-law i.e. sister of applicant No. 1-husband. 4. It is also an undisputed fact that wife has lodged a complaint before the learned Judicial Magistrate First Class at Vadodara under Sections 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 on 12.03.2014. In such complaint, wife has categorically disclosed names of present applicants and contended that when she was having pain in her stomach on 28.03.2013 and when she conveyed such fact to applicants, applicant Nos. 2, 3 and 4 have taken her Mangalsutra and dragged her to the house of her parents i.e. matrimonial home. It is also disclosed in such complaint that her in laws are demanding dowry and using abusive language against her and insulting her and she was not allowed to move freely and there was restriction to even go out of the house. It is also disclosed in such complaint that her in laws are demanding dowry and using abusive language against her and insulting her and she was not allowed to move freely and there was restriction to even go out of the house. It is also contended in such complaint that applicants were not supporting her financially and not providing her with food, clothes, medicines etc and she was dragged out of the house. It is categorically stated that there was demand of Rs. 5 lacs towards dowry and therefore, she has asked for reliefs under Sections 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 so also 'Stridhan' properties by seeking the help of police support, legal proceedings and legal advice. When such details are disclosed before the Protection Officer, in turn, the Protection Officer has forwarded the complaint to the Court of Magistrate, where complainant has confirmed all such allegations on oath In addition to submitting a proforma complaint disclosing about fact, the complainant has also addressed a detailed application to the Protection Officer narrating minute details regarding disturbance and demands by the opponents so also their misdeeds, which can certainly be termed as physical and mental cruelty upon her. The Protection Officer has recorded her statement below such written complaint dated 24.01.2014, wherein, the petitioners have also annexed list of her 'Stridhan' properties. Considering all such averments, the Judicial Magistrate First Class has after hearing the complainant and the Protection Officer and also on the basis of documentary evidence available on record before it, issued notice upon the applicants vide order dated 12.03.2014 to show-cause as to why orders under Sections 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005, should not be passed against them. Therefore, practically, the proceedings before the Magistrate is though in the form of criminal proceedings for speedy disposal, practically these are proceedings in the nature of quasi-civil and quasi-criminal proceedings, wherein, practically, the applicants are called upon to answer the judicial authority that why order under the provisions of 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 should not be passed against them. 5. 5. Therefore, when there is categorical disclosure about the physical and mental torture so also demand of dowry and harassment by the husband and in-laws, the wife has no option, but to seek protection. However, while seeking such protection, if at all there is any technical requirement, then, considering the settled legal position that the rules are meant for doing justice and not for denying justice and therefore, it is settled legal position that in case of lacuna in terms of procedural formality, one may not be denied justice, more particularly in case of such victim of domestic violence. However, instead of defending themselves on merits, the applicants have come forward with a plea that the appointment of Protection Officer, who has filed his report, which is thereafter, considered as complaint, is vitiated and untenable for want of proper authority of Protection Officer to work in such a capacity. In support of such submission, the applicants have relied upon the rules regarding appointment of such Protection Officer, which are the Dowry Prohibition Officer-cum-Protection (Class-II) Recruitment Rules, 2013. It is submitted that to be eligible for appointment by direct selection to the post of Dowry Prohibition Officer-cum-Protection Officer, one must be less than 35 years of age and he must possess post graduate degree in Social Work or Sociology or Psychology obtained from any of the Universities established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such or declared to be deemed University or possess equivalent qualification recognized by the Government. In addition to above qualification, he should have at least three years experience of Social Work or Social Administration in government or Local Bodies or Undertakings, which can be considered equivalent to the post not below the rank of Senior Clerk, Class-II in the subordinate service of the Directorate of Social Defence or one should have at least three years' experience of Social Work or Social Administration or in the field related to Social Service or at least three years' experience in the post connected with the services in the Private or Public Sector Organization, which can be considered equivalent to the post not below the rank of Senior Clerk Class-II in the subordinate service of the Directorate of Social Defence and possess basic knowledge of computer application as prescribed in Civil Services Classification and Recruitment (General) Rules, 1967 and possess adequate knowledge of Gujarati or Hindi or both. Therefore, bare reading of the rule, copy of which is produced on page-52, makes it clear that practically there is wide choice of candidates to be selected as a Protection Officer. Therefore, it can not be said that Protection Officer must be having specific minimum qualification, as pleaded and prayed by the applicants. However, in support of such submission, the applicants have relied upon a decision in the case of Vaghela Manish Kumar Ranchhodbhai vs. Kalol Municipality, reported in 2008 (1) Crimes (HC) 63202, wherein, single Judge of this Court has while exercising his power under Article 226 of the Constitution of India and with reference to the Rule 8 of the Food Adulteration Act, 1955 held that specific qualification is required for appointment as a Food Inspector and thereby if any person is so appointed without requisite qualification, then, prosecution under the Act would fail. In such reported case, the issue was with reference to the post of Food Inspector, which certainly requires some technical knowledge for sampling food scientifically and therefore, Rule 8 of the provision of Food Adulteration Act, 1955 provides that a person shall not be qualified for appointment as Food Inspector unless he is a Medical Officer in charge of Health Administration of local area or is a graduate in medicine with one month's training approved for the purpose by Central Government or State Government or is graduate in Science with Chemistry as one of the subject or a graduate in Agriculture or Public Health or in Veterinary Science or in Food Technology or Dairy Technology from University or institution established in India by law or has equivalent qualification recognized and notified by Central Government for the purpose with satisfactory training in food inspection and sampling work. Therefore, in such reported case, when Food Inspector was holding the degree of Bachelor of Arts only and thereby he did not have degree in the subject of any science, the Single Judge was right in holding that such a person cannot work as a Food Inspector and if he initiated any proceedings, then it would fail. Therefore, such judgment would not help the applicants to get rid off the proceedings under the Protection of Women from Domestic Violence Act 2005. 6. If we perused the application at Exh.8 filed by the applicant No. 1 before the Family Court, it becomes clear that the applicants have only relied upon the notification dated 08.10.2013, a copy of which is produced at page-52 as Annexure-C, submitting that in view of such rule, when Protection Officer is not having requisite qualification, his report cannot be accepted by the Magistrate and therefore, the complaint needs to be quashed. There is no substance in such submission because there is no such evidence on record to prove that Protection Officer is not qualified to become a Protection Officer. The impugned order passed by the Family Court so also judgment of the appeal are discussing all the issues and after considering all the rival submissions and facts and circumstances on record and after discussing relevant citation and after proper consideration of all issues, both the Courts below have rejected such application. The impugned order passed by the Family Court so also judgment of the appeal are discussing all the issues and after considering all the rival submissions and facts and circumstances on record and after discussing relevant citation and after proper consideration of all issues, both the Courts below have rejected such application. Therefore, in absence of any irregularity or illegality, there is no reason or substance in the revision application so as to interfere with the interlocutory order since by impugned order, a request of applicants' to discharge them from the criminal proceedings has been refused and thereby they have all the chance to answer the show-cause notice issued against them by the Judicial Magistrate and to prove themselves to be innocent if they are so. 7. It is undisputed fact that considering the wide scope of selection of officer as Protection Officer, the State Government has appointed the concerned officer, who has filed the report before the learned Magistrate as Protection Officer under the Act and therefore, in absence of any specific allegation and evidence regarding inability of the Protection Officer to act as such, it cannot be said that the appointment of Protection Officer is improper so as to establish the proceedings against the present applicants. 8. Probably knowing such fact, the applicants have also taken a second stand in the application that there is no reference to any ill-treatment by the husband in the complaint to the Protection Officer by the wife hence, at least there cannot be any proceedings against the husband and if there cannot be any proceedings against the husband, then, provision of Protection of Women from Domestic Violence Act, 2005 would not apply and therefore, even if at all there is some ill-treatment or harassment by other family members, then, the applicants may file a complaint under the provisions of Indian Penal Code, where practically in absence of any evidence regarding any injury or harassment, there cannot be any criminal complaint against the applicants. Such defence and submission is also misconceived for the simple reason that in a detailed complaint dated 24.01.2014 to the Protection Officer, copy of which is produced on record at Annexure-A, the opponent No. 2 has specifically alleged regarding ill-treatment by all the applicants including the applicant No. 1-husband. Therefore, there is no substance in such factual submission also. Such defence and submission is also misconceived for the simple reason that in a detailed complaint dated 24.01.2014 to the Protection Officer, copy of which is produced on record at Annexure-A, the opponent No. 2 has specifically alleged regarding ill-treatment by all the applicants including the applicant No. 1-husband. Therefore, there is no substance in such factual submission also. Similarly, the definition of "Aggrieved Person" under the Domestic Violence Act makes it clear that "Aggrieved Person" means any woman who is or has been in any domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. In addition to such definition in Section 2(a) of the Act, definition of "Domestic Violence" under Section 3 is very wide, which covers all the allegations by the complainant so also of the applicants within the ambit of Act and therefore, there is no substance in such factual defence also. 9. Otherwise also, this being a revision application against an interlocutory order, scope of interference by revisional Court is quite limited, whereby the Court has to only examine that whether there is any irregularity or illegality and that too if at all it amounts to injustice to any party, for exercising the jurisdiction to interfere or modify with concurrent finding of fact and determination by the lower Court. Therefore, in absence of any irregularity or illegality, there is no reason to interfere with the impugned order. In view of facts and circumstances of the case and discussion, there is no substance in the revision application and therefore, present revision application is dismissed. Notice is discharged.