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2016 DIGILAW 1330 (GUJ)

Niraj Kumar Nawal Kishore Sharma v. Madhulika Rai

2016-07-15

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. Present revision application assails the judgment and order dated 25/02/2016, passed by the learned 7th (Ad-hoc) Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad, in Criminal Appeal No. 59 of 2015, whereby, the appeal filed by the present applicants - original appellants came to be dismissed, confirming the orders dated 03/11/2015, passed by the learned 6th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Ahmedabad (Rural), Ahmedabad, below exhs. 10 and 16 in Criminal Misc. Application No. 1447 of 2014. By application exh. 10, the applicants herein - original opponents had prayed to dismiss the complaint filed by the present respondent No. 1, which came to be dismissed, whereas, by application exh. 16, the respondent No. 1 herein - original applicant had sought to direct the applicants herein to produced certain documents before the trial Court, which came to be partly 2. The respondent No. 1 herein has filed a complaint against the present applicants under Sections 12, 17, 18, 20, 22, 23 and 26 of the Protection of Women from Domestic Violence Act, 2005 (for brevity, 'the PWD Act') being Criminal Misc. Application No. 1447 of 2014, in which, by application exh. 10, the applicants herein - original opponents had prayed to dismiss the said complaint and the said application exh. 10 came to be dismissed, whereas, by application exh. 16, the respondent No. 1 herein -original applicant had sought to direct the applicants herein to produce certain documents before the trial Court, which came to be partly allowed, by the impugned orders dated 03/11/2015, which were confirmed by the learned first Appellate Court in Criminal Appeal No. 59 of 2015 by order dated 25/02/2016. 3. Heard Mr. Harshesh R. Kakkad, learned advocate for the applicants, Mr. Mitul R Desai, learned advocate for the respondent No. 1 and Mr. K.L. Pandya, learned Additional Public Prosecutor, for the respondent No. 2 - State. 4. Mr. Kakkad, the learned advocate for the applicants, submitted that the impugned orders, passed by both the learned Courts below, are illegal, erroneous and contrary to the provisions of law. He vehemently submitted that both the Courts below have failed to consider the most important aspect of the case that the complaint in question has been filed after almost a period of two years of the alleged incidents of domestic violence and is barred by the limitation. He vehemently submitted that both the Courts below have failed to consider the most important aspect of the case that the complaint in question has been filed after almost a period of two years of the alleged incidents of domestic violence and is barred by the limitation. Moreover, under the provisions of the PWD Act, the applicant No. 3 being a female member, ought not to have been joined as a party - respondent in the said complaint. He submitted that the applicant No. 1 herein had filed a Hindu Marriage Petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of the conjugal rights, which came to be allowed by the Family Court, Nalanda at Biharsharif and the respondent No. 1 - wife has been directed to join the husband and as a counter to it, the respondent No. 1 has filed the proceedings in question under the PWD Act, only with a view to harass the present applicants. He further submitted that, as per the divorce petition being Hindu Marriage Petition No. 1967 of 2015, filed by the respondent No. 1 before the Family Court, Ahmedabad itself, it is averred that there is no co-habitation between the parties for about more than three years and accordingly, the complaint in question is clearly filed belatedly. Moreover, as per the learned advocate for the applicants, so far as production of documents is concerned, the same would be governed by the provisions of the Code of Criminal Procedure, 1973, however, the learned Court below has wrongly applied the provisions of the Code of Civil Procedure, 1908, more particularly, as per the ratio laid down in the decision of Suo Motu Vs. Ushaben Kishorbhai Mistry, rendered in Criminal Reference No. 6 of 2015. Making above submissions, the learned advocate for the applicants submitted that both the Courts below have failed to consider the aforesaid aspects of the matter in their true and proper perspective and eventually, requested to allow the present application by setting aside the impugned orders in the present application. In support of his submissions, the learned advocate for the applicants relied upon following decisions: i. V.D. Bhanot Vs. Savita Bhanot, in Special Leave Petition (Crl) No. 3916 of 2010 of Hon'ble Apex Court; ii. Inderjit Singh Grewal Vs. State of Punjab and Another, reported in (2011) 12 SCC 588 ; iii. Suo Motu Vs. In support of his submissions, the learned advocate for the applicants relied upon following decisions: i. V.D. Bhanot Vs. Savita Bhanot, in Special Leave Petition (Crl) No. 3916 of 2010 of Hon'ble Apex Court; ii. Inderjit Singh Grewal Vs. State of Punjab and Another, reported in (2011) 12 SCC 588 ; iii. Suo Motu Vs. Ushaben Kishorbhai Mistry, reported in 2015 (0) AIJEL - HC 233421 of the Gujarat High Court; iv. J. Srinivas Vs. G. Dhanalakshmi in Criminal Petition No. 2419 of 2009 of the High Court of Karnataka @ Bangalore; v. Vijay Verma Vs. State NCT of Delhi and Anr., in Cri. M.C. No. 3878 of 2009 of the High Court of Delhi at New Delhi. 5. Per contra, Mr. Desai, the learned advocate for the respondent No. 1, with all vehemence at his command, opposed the present application and submitted that only with a view to prolong the matter, present application has been filed and requested to dismiss the present application only on that ground. Otherwise also, there are two concurrent findings of two learned Courts below on merits and while arriving at such findings, the Courts below have considered and dealt with each and every aspects of the matter minutely and hence, no interference is called for at the hands of this Court and he, while supporting the impugned orders, requested this Court to dismiss the present application. In support of his submissions, he relied upon a decision of the Hon'ble Apex Court in Krishna Bhatacharjee Vs. Sarathi Choudhury and Ant, rendered in Criminal Appeal No. 1545 of 2015 9@ SLP (Cr) No. 10223 of 2014). 6. I have heard the learned advocates for the parties and also gone through the impugned orders passed by both the learned Courts below. The impugned orders are mainly assailed on the aspects of limitation, jurisdiction, joining of applicant No. 3 as a party -respondent and the order directing production of certain documents to the applicants herein, in the main application. In this regard, the discussion and observations made by the learned first Appellate Court would be relevant on the points and it would beneficial to reproduce the relevant discussion and observations of the learned first Appellate Court, as under: "This definition itself does have very vast horizon extending into past, present and future. In this regard, the discussion and observations made by the learned first Appellate Court would be relevant on the points and it would beneficial to reproduce the relevant discussion and observations of the learned first Appellate Court, as under: "This definition itself does have very vast horizon extending into past, present and future. This itself suggests that without having entire details of the incident through evidence on record, its very difficult and to the great extent impossible to determine the question of limitation at this stage, without having gone into trial especially set of circumstances emerging from the record which brings to the fore that the application in question asks for various reliefs under Section 17 right to reside in a shared household, Section 18 protection order, Section 19 residence order, Section 20 monetary relief, Section 22 compensation order and interim relief in terms of Section 23 of the Protection of Women from Domestic Violence Act, 2005. All these reliefs are of civil nature and arise on the basis of domestic violence. Some of the reliefs are based upon continued cause of action and one of such relief is protection order as is required as long as threat or likelihood of domestic violence persists. In this backdrop, the question of limitation need to be decided at trial so as to have full information in respect of domestic violence, its impact, cause being continued one, still threat perception is there and other host of factual aspect having impact on determining the issue of limitation including, if delayed, then what are the reasons which are condonable or not as per the provisions applicable to such reliefs. This matter is at preliminary stage right now where neither Learned Trial Court nor this Court is having full set of facts which can help in determining the issue of limitation. In this background, the issue of limitation requires to be dealt with at the time of trial so as to save the purpose of this benevolent statute whose object is to translate the principles of gender equality as enshrined in the Indian Constitution into practice. In this background, the issue of limitation requires to be dealt with at the time of trial so as to save the purpose of this benevolent statute whose object is to translate the principles of gender equality as enshrined in the Indian Constitution into practice. This line of reasoning finds fortification from the decision of Hon'ble High Court of Gujarat in Special Criminal Application No. 1173 of 2011 in Yogesh S/o. Hotchand Motiramani (Supra) has observed as follows; "Now, it would be most appropriate to advert to the facts as they were prevalent in the case of Inderjit Singh Grewal (Supra) in order to appreciate the submission canvassed on behalf of the petitioners. As could be seen from the narration in para-4, the appellant therein had married respondent No. 2 on 23-09-1998 and out of wedlock, one child was born. On account of the difference, they decided to get divorce and hence filed HMA Case No. 168 of 1999 from the District Court, Ludhiana under Section 13(B) of the Hindu Marriage Act, 1955 for dissolution of marriage by mutual consent. In the said proceedings, the statements of appellant and respondent No. 2 were recorded on 19-09-2007 and proceedings were adjourned for a period of more than six months to enable them to ponder over the difference. The parties again appeared before the Court on 20-03-2008 and again their statements came to be recorded of affirming their decision to separate with each other and accordingly, the Judge passed an order dissolving the marriage on 20-03-2008. The wife thereafter, filed a complaint before Senior Superintendent of Police, Ludhiana against the appellant on 04-05-2009 invoking provisions of D.V. Act, inter-alia, alleging that the decree of divorce was obtained by sham transaction and even after getting divorce both of them had been living together as husband and wife. She was forced to leave the matrimonial home. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry who submitted his report on 4.5.2009 to the effect that the parties had been living separately after divorce and no case was made out against the appellant. However, he suggested for legal opinion in the matter. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry who submitted his report on 4.5.2009 to the effect that the parties had been living separately after divorce and no case was made out against the appellant. However, he suggested for legal opinion in the matter. Accordingly, the legal opinion dated 2.6.2009 was sought, wherein, it was opined that the parties had obtained the divorce decree by mutual consent and the allegations made by respondent No. 2 against the appellant were false and baseless and the purpose of filing the complaint was only to harass the appellant. Thereafter, the respondent No. 2 filed a complaint under the D.V. Act, 2005 on 12.6.2009 and in the meantime, the respondent No. 2 also filed Civil Suit on 17.7.2009 in the Court of Civil Judge (Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008 I.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit was pending. The respondent No. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child, which was also pending. The respondent No. 2 had also filed on 11.02.2010 a FIR under Sections 406, 498A, 376, 120B of the Indian Penal Code, 1860 against the appellant and his mother and sister. In the backdrop of aforesaid facts, the Supreme Court while quashing the complaint under the D.V. Act, made observations which have been stated hereinabove and which have been heavily relied upon by the advocate for the petitioners for supporting the submission that so far petitioner nos. 2 and 3 are concerned, the complaint was time barred. This Court is of the view that the complaint is whether time barred or not is a question of evidence also and which can be established only after the evidences in this behalf is lead. In the present case, no elaborate evidences have been led by parties nor has the court gone into it for passing the interim maintenance orders and at the time the question of complaint qua petitioner nos. 2 and 3 being time barred was not articulately raised." At the same time, the appellant herein has relied upon the ratio laid down in Sejal Dharmesh Ved (Supra) wherein question of subsisting of domestic relationship between the parties was in question. 2 and 3 being time barred was not articulately raised." At the same time, the appellant herein has relied upon the ratio laid down in Sejal Dharmesh Ved (Supra) wherein question of subsisting of domestic relationship between the parties was in question. While replying said question, Hon'ble Apex Court, of course on the facts and circumstances of that particular case, held as follows; "A wife who lived in a domestic relationship earlier, but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act." To operationalize and follow the aforesaid observations of Hon'ble Apex Court, the determination of period of limitation or reasonable time need to be assessed and determined on the basis of full facts that may be had after going into trial as set of factual matrix in this case being such that at this preliminary stage in the absence of having full facts on record, it is not possible to determine either reasonableness of time within which application in question is being filed or is it within the limitation or not ? In this background, this issue needs to be postponed till trial takes place. Consequently, the ratio laid down in the aforesaid judgment of Hon'ble Apex Court cannot be made applicable to the facts of the present case at this stage. (ii) Lack of jurisdiction; The present plea of the appellant herein is based upon the fact that the respondent herein has never stayed within the jurisdiction of present Court and bundle of facts alleged to have been happened are occurred into the jurisdiction of various other Courts of the State and Country, the present application, therefore, does not deserve to be maintainable within the jurisdiction of the present Court. Coming to the facts, the respondent herein has clearly stated in her application that she resides at the address mentioned in the cause title of the application and in support thereof contentions having been made in application as well The latest address as well is declared through the pursis vide Exh.18 before the Learned Trial Court as well brings on the record the fact that the respondent herein stays within the jurisdiction of the present Court. This raises question; Is it not sufficient in law to vest jurisdiction in this kind of proceeding, if merely the seeker of justice staying within the jurisdiction of the Court taking cognizance of the cause ? This question has squarely replied in the Section 27 of the Protection of Women from Domestic Violence Act, 2005 which goes as follows; 27. Jurisdiction (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which- (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made under this Act shall be enforceable throughout India. The clause (a) of Section 27 of the Protection of Women from Domestic Violence Act, 2005 makes it clears that the person aggrieved permanently or temporarily resides. This clause clearly states and mandates that it is sufficient to maintain any proceedings under this Act, if the aggrieved person is either permanently or temporarily resides. This criterion has completely been fulfilled in the present case, consequently, the plea and arguments in this regard of the appellants herein stand repealed and rejected. (3) Deletion of mother-in-law as party as she being woman; The next contention as regards deletion of mother-in-law as party as she being woman and not included as such in the definition of respondent is put forward by the appellant herein. To appreciate the present contention, it is worth quoting here the definition of respondent as defined in the clause (q) of Section 2 of the Protection of Women from Domestic Violence Act, 2005. To appreciate the present contention, it is worth quoting here the definition of respondent as defined in the clause (q) of Section 2 of the Protection of Women from Domestic Violence Act, 2005. The said definition goes as follows; (q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act : Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner; Of course, the first part of the definition of the termed respondent talks about any adult male person in the main part of the definition, but later on proviso has been put in place by the legislature. The rule of interpretation governing the position of proviso describes its position as controller of main part of the section or main part of the legislative aspect. While assigning the meaning to the "proviso" the Learned Author Black in his Tenth Edition of the Black's Law dictionary, describes as follows; Proviso as; "1. A limitation, condition or stipulation upon whose compliance a legal or formal document's validity or application may depend. 2. In drafting, a provision that begins with the words provided that and supplies a condition, exception or addition." The proviso of aforesaid definition carves out an exception in case of an aggrieved wife or female living in a relationship in the nature of a marriage can file a complaint against a relative of a husband or the male partner as the case may be. The term "relative" is gender inclusive and encompasses within its sweep both male and female. The rule of interpretation always insists about literal construction that simple meaning to that word must be assigned keeping in mind the context in which that word having been used by the legislature. The simple and literal meaning of word "relative" as per the Oxford Dictionary & Thesaurus III goes as follows; Relative as noun; "Person connected by blood or marriage" This clearly suggests that relative includes both the gender and it does not restrict itself to any particular gender. The simple and literal meaning of word "relative" as per the Oxford Dictionary & Thesaurus III goes as follows; Relative as noun; "Person connected by blood or marriage" This clearly suggests that relative includes both the gender and it does not restrict itself to any particular gender. The rule of literal construction further says that the Court should adopt such meaning which is in consonance with the language used in the legislation and furthers the legislative object. The Court may not adopt the construction which may create absurdity. The proviso thus, brings in the sweep of definition of respondent any relative of husband either by blood or marriage. The husband in this particular case is the son of the appellant No. 3 herein and consequently, definitely falls within the fore corners of the definition of respondent and hereupon the argument of the Learned Advocate for the appellant herein relating to appellant No. 3 being woman cannot be arrayed as party respondent is not tenable at law. This finding is being fortified from the ratios laid down in the following decisions of Hon'ble Apex Court and Hon'ble High Court of Gujarat; 1. Sou. Sandhya Manoj Wankhede (Supra) "12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage. 13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the D.V. Act, 2005, to make it specific to males only. 14. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the D.V. Act, 2005, to make it specific to males only. 14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the D.V. Act, 2005." 2. Jaydip Sinh Prabhatsinh Jhala (Supra), "As per the definition of term 'respondent' in Act, it means any adult male person. This prescription would apply in all cases of applications filed by an aggrieved person. An aggrieved person includes not only wife or a female living in a relationship in the nature of marriage, but also other women members of a household. Thus, a mother sister or even a daughter can be an aggrieved person under the Act. Therefore ordinarily when an aggrieved person approaches the Magistrate, the respondent would be any adult male person, who is or has been in a domestic relationship with such an aggrieved person. However, when the aggrieved person is a wife or the female living in a relationship in the nature of marriage, she can also file an application against any relatives of the husband or male partner as the case may be. Term any relative would include a male or even a female relative. This is the plain and simple meaning and implication of proviso to clause (q) of Section 2 of the Act. Any other interpretation or meaning assigned to it would virtually destroy the very purpose of enacting the proviso. It is one of the basic principles of interpretation of statute that the legislature does not waste words and no interpretation of a provision should be adopted, which would render any Section or part thereof redundant. As per Section 2(q) of the Act, the respondent is one against whom an aggrieved person has sought any relief under the Act provided following two conditions are satisfied; (1) that he is adult male person and (2) that he is or has been in a domestic relationship with the aggrieved person. Proviso, however, permits aggrieved wife or female living in a relationship in the nature of marriage to file a complaint against a relative or the husband or male partner. Proviso, however, permits aggrieved wife or female living in a relationship in the nature of marriage to file a complaint against a relative or the husband or male partner. Proviso to S. 2(q) is enacted to carve out an exception to the above noted requirements. Such exception is to the requirement of the main provision of the subsection that a respondent must be an adult male person. Thus, it cannot be held that under the Act, the respondent can only be a male member. In case, aggrieved person is a wife or a woman living in a relationship in the nature of wife, in an application under Section 12 of the Act, if the facts so warrant, a female relative of the husband or the male partner as the case may be can also be joined as respondent" (iv) Order directing the production of last salary slip of the appellant No. 1 herein; That the respondent herein applied before the Learned Trial Court for production of certain documents like resume, salary slip, income tax return, statement of accounts of the appellant No. 1 herein. The said application was filed under Order 11 Rule 14 of Code of Civil Procedure. The Learned Trial Judge has partly allowed the said application and ordered the appellant No. 1 herein to produce his last salary slip. Being aggrieved with that order, its being challenged in the present appeal stating that he has already left the job and right now he is jobless, therefore, its very difficult for him to produce it. The second line of argument was that the powers having been drawn for passing the order of production of said document being exercised under the Code of Civil Procedure, it is illegal and invalid as the provisions of Code of Criminal Procedure applies to the proceeding under the Protection of Women from Domestic Violence Act, 2005. Factual background of the present proceedings need to be understood to scrutinize the present arguments on the touchstone of law. The present proceeding before the Learned Trial Court seeks the monetary reliefs in the form of maintenance, compensation etc. The relevancy of the document in question (salary slip) cannot be questioned vis-a-vis the monetary reliefs. The income is such a factor of which the real information lying in the sole domain of its earner. The present proceeding before the Learned Trial Court seeks the monetary reliefs in the form of maintenance, compensation etc. The relevancy of the document in question (salary slip) cannot be questioned vis-a-vis the monetary reliefs. The income is such a factor of which the real information lying in the sole domain of its earner. The provisions enshrined in the Evidence Act insisting upon such person to bring such fact on record. The normal rule of the burden of proof edicts that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he/she asserts must prove that those facts exists. This is an exception to that general rule which finds its place in Section 106 of the Indian Evidence Act which proceeds that; "When any fact is especially within the knowledge of any person, the burden of proving the fact is upon him." Having regard to the factual background the relevancy of the document in question cannot be found fault with. This requires examination of the procedural aspect through which the production of document being ordered. In this regard, it is worthwhile having perception of these provisions which is enshrined in Section 28 of the Protection of Woman from Domestic Violence Act, 2005 which goes as follows; 28. Procedure (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of section 23. Sub-Section 2 of Section 28 clearly indicates that the Court trying the proceeding or an application under Section 12 or under Sub-Section (2) of Section 23 is at liberty to devise its own procedure, howsoever, the mandate of the Sub-section 1. It is an admitted position that the present application is under Section 12 as well and at the same time, the Learned Trial Court is on the verge of operating under Section 23 as well. While laying down such procedure, the Court concerned must operate within the ambit of principle of natural justice, good conscience, justice and fair play. It is an admitted position that the present application is under Section 12 as well and at the same time, the Learned Trial Court is on the verge of operating under Section 23 as well. While laying down such procedure, the Court concerned must operate within the ambit of principle of natural justice, good conscience, justice and fair play. Operating within the precinct thereof never makes any order illegal in as much as that procedure be emulated from either Code of Civil Procedure or Code of Criminal Procedure, as the Court concerned having been authorized by law to do so. Thus, the argument in this regard does not stand the test of the law and stands rejected. This finding gets fortified from the following observations of Hon'ble High Court of Gujarat has, in Suo Moto (Supra) held as follows; 27. In view of the aforesaid observations and discussion, the following conclusions: (i) The provisions of the Act provide for remedial measures for civil rights of women but the machinery provided is through criminal court. (ii) Initiation of proceedings under Section 12 or 18 or 19 or 20 or 21or 22 or 23 or 31 of the Act would begin only when the Magistrate has passed any judicial order including of issuance of notice for hearing. (iii) Any person affected by any proceedings under the Act, prior to initiation of proceedings under Section 12 of the Act may prefer Special Criminal Application under Article 226 of the Constitution if as per him, the proceedings are beyond the scope and ambit of the Act or without any authority in law. But this Court, while entertaining the petition under Article 226 of the Constitution may decline entertainment of the petition by way of self-imposed restriction in exercise of the judicial powers or may decline entertainment of the petition in exercise of its sound judicial discretion. (iv) Once proceedings are initiated under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 either independently or jointly on account of any judicial order passed by the learned Magistrate including issuance of notice, such proceedings shall be governed by the Code of Criminal Procedure coupled with the power of the Court under Section 28(2) to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of 23 of the Act. (v) Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available. But the higher forum under the Code of Criminal Procedure, may be the Court of Session or the High Court, may decline entertainment of such proceedings considering the facts and circumstances of the case and as per the settled principles of law and in accordance with law. (vi) The aforesaid remedial measures provided under the Code of Criminal Procedure would also include the powers of this Court under Section 482 of the Code, but the Court may, in a given case, decline entertainment of the petition when there is express remedy provided under the Code of Criminal Procedure or no case is made out to prevent the abuse of process of any Court, or no case is made out to secure the ends of justice. In this background, the rest of the judgments relied upon by the appellants herein have no application to the facts of the present case and consequently, the ratios laid down therein on the basis of their own facts do not help the appellants herein. Such decisions are as follows; 1. Poonam (Supra), 2. Ajay Kant and Ors. (Supra), (d) Scrutiny of order of Trial Court; Bearing in mind aforesaid factual aspect emerging from the record, the Court needs to pose question to itself; does the order under challenge have any traits which bring it within the class of arbitrary, perverse, capricious and illegal needing to be interfered by the appellate court? Once again coming to the question of perverseness, arbitrariness and capriciousness of the order, it is worthwhile to quote the meaning thereof from the Tenth Edition of the Black's Law dictionary, which describes; Perverse as; "behaving unreasonably, esp. by deliberately doing the opposite of what a reasonable person might be expected to do" Perverse verdict; "a jury verdict so contrary to the evidence that it justifies the granting of a new trial". Arbitrariness as; "(of a judicial decision) founded on prejudice or preference rather than on reason or fact. by deliberately doing the opposite of what a reasonable person might be expected to do" Perverse verdict; "a jury verdict so contrary to the evidence that it justifies the granting of a new trial". Arbitrariness as; "(of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious." Capriciousness as; "(of a decree) contrary to the evidence or established rules of law." 5. Summing-up; Having considered the reasons assigned in the forgoing paragraph of the present decision and considering the ultimate denial of the prayer to the appellants herein do not bring the impugned decision of Learned Trial Court within the precinct of the scope of terminology like perverse, arbitrary or capricious. In this backdrop, there is no reason to interfere with or any indulgence in the decision arrived at by the Learned Trial Court. With altering the reasonings to the extent stated in the preceding part of this order, the point for determination No. 1, 2 and 3 are held in negative, whereas the last one is held as per the final order." 7. On going through the aforesaid discussion and observations made by the learned first Appellate Court dealing with each and every aspects minutely, leaving no stone unturned, I do not find any illegality, arbitrariness or contradiction to the law and evidence on record in the impugned orders passed by the learned Courts below, which requires indulgence of this Court. I have also perused the decision relied upon by the learned advocate for the applicant. There cannot be any question to the ratio laid down in the same, however, in the facts and circumstances of the case on hand, the same are not applicable. Moreover, the learned advocate for the applicant is not in a position to point out anything substantial to take a contrary view in the matter or that the approach of the Courts below is vitiated by some manifest illegality or that the decisions are perverse or that the Courts below have ignored the material evidence on record. In above view of the matter, I am of the considered opinion that the learned Courts below were completely justified in passing impugned orders. 8. In the aforesaid backdrop, present application having found without any substance, is dismissed. Rule is discharged.