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2017 DIGILAW 1486 (GAU)

Punam Rani Garg v. Manoj Garg

2017-11-30

HITESH KUMAR SARMA

body2017
JUDGMENT : 1. This is a criminal revision petition, filed under section 379/401 read with section 482 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 18.3.2014, passed by the learned Sessions Judge, Kamrup (M), Guwahati, in Criminal Appeal No. 1/2014 and for setting aside the said judgment. 2. I have perused the petition and the ground stated therein. I have also perused the additional affidavit filed by the petitioner. 3. I have heard Mr. S.P. Roy, learned counsel appearing on behalf of accused-petitioner, and Mr. A. Sattar learned counsel for the respondent Nos. 1 to 5. I have also heard S.H. Bora, learned Additional Public Prosecution for State respondent No. 6. 4. The fact leading to this criminal revision petition is that at the instance of the present revision petitioner, a complaint, under section 12 of the Protection of Women from Domestic Violence Act, (‘the DV Act’) was forwarded to the learned Chief Judicial Magistrate, Kamrup (M), Guwahati, by the Protection Officer. The learned Magistrate, on the basis of the complaint as well as the affidavit, under section 23(2) of the DV Act as well as the Domestic Information Report, initiated a proceeding in DV Case No. 201/2014. The learned Magistrate issued notice to both the parties. The revision petitioner/aggrieved party made a prayer before the learned trial court to restore to her possession, the shop premises under the name and style ‘Indian Builders Centre’. According to her, she made investment in that business. According to her she was dispossessed by the respondent illegally on 20.1.2014. The learned trial court issued notice upon the respondent to file written statement. However, vide order dated 20.1.2014, the learned trial court passed an interim order, the operative part of which is as follows: “Till then the respondents are directed not to disturb the aggrieved party and are prohibited from entering into the house of the aggrieved party and not to disturb her to continue her business as before. Both the parties are further directed not to alienate any property till further hearing and passing of further order.” 5. The Protection Officer issued a notice, dated 12.2.2014 to both the parties to the proceeding for enforcing the order of this court. Both the parties are further directed not to alienate any property till further hearing and passing of further order.” 5. The Protection Officer issued a notice, dated 12.2.2014 to both the parties to the proceeding for enforcing the order of this court. In the notice, the Protection Officer, in addition to the prohibitive direction contained in the aforementioned order, dated 20.1.2014, directed the police to put the present revision petitioner/aggrieved person in the possession of the business premises, i.e., ‘Indian Builders Centre’. Accordingly the revision petitioner/aggrieved person was put in possession in the business establishment, namely, ‘Indian Builders Centre’. 6. The respondents filed an application before the learned Magistrate praying for taking action against the Protection Officer for his unauthorised action, directing to put the revision petitioner/aggrieved person in possession of the aforesaid premises as he acted contrary to the order of the learned Magistrate. It was also alleged in the said prayer petition that in respect of the said business premises, there is a civil suit pending between the parties in the court of competent jurisdiction wherein an order to maintain status quo was passed, which fact was not brought on record by the revision petitioner/aggrieved person before the learned trial Magistrate. 7. On such facts, the learned trial Court of Additional Chief Judicial Magistrate passed the order dated 11.3.2014, which was impugned in the Criminal Appeal No. 1/2014, in the Court of the learned Sessions Judge. The relevant paragraphs of the said order, dated 11.3.2014 is quoted below for convenience: “I have gone through the order dated 20.1.2014 and the notice issued by District Social and Welfare Officer-cum-Protection Officer, dated 12.2.2014. It appears that no order was passed to forcefully put the aggrieved party into possession of business establishment M/s. Indian Builders Centre. A simple order was passed directing both the parties not to alienate any properties till further hearing and passing order. The respondents were directed not to disturbed the aggrieved party and prohibited from enter into the house and not to disturb her to continue her business as before. The Protection Officer by issuing letter dated 12.2.2014, directed the O/C Bharalumukh to put the aggrieved party Smt. Punam Rani Garg into business establishment whereas no such order was passed by this court. The Protection Officer by issuing letter dated 12.2.2014, directed the O/C Bharalumukh to put the aggrieved party Smt. Punam Rani Garg into business establishment whereas no such order was passed by this court. It also appears that a civil case is still pending relating to the properties of the deceased and competent civil court has already ordered to maintain status quo which was not disclosed by the aggrieved party before this court. As there is a status quo order already passed by a competent civil court, this court cannot interfere to the effect, whereas there was no direction by this court to put the aggrieved party into possession of said business establishment M/s. Indian Builders Centre. Hence, it is clear that forceful putting of aggrieved party in the business establishment was beyond order of the court and the same needs interference of this court to facilitate the parties to maintain the status quo order of competent civil court. Hence, the aggrieved party is directed to voluntarily vacate the possession of M/s. Indian Builders Centre within 3 days of the order and maintain status quo order of the civil court as ordered and if she failed to comply with the order, the direction will be made to engage police to that effect. Regarding the issuance of order to the O/C by District Social and Welfare Officer-cum-Protection Officer is found beyond order of the court, where necessary order will be passed after giving proper opportunity to Smt. Hemi Bora, District Social and Welfare Officer-cum-Protection Officer to show cause why action shall not be taken against her for issuing notice beyond and in excess of order of the court.” 8. According to the learned counsel for the present revision petitioner/aggrieved person, by the order dated 11.3.2014, the learned Additional Chief Judicial Magistrate acted like an Appellate Court and reviewed its own order, which is beyond the jurisdiction of a criminal court. A criminal court cannot alter or review its own judgment and order. 9. It was further submitted by the learned counsel for the petitioner that the Protection Officer, while issuing notice, dated 12.2.2014, incorporating an additional direction to put the revision petitioner/aggrieved person in possession of the premises namely, ‘Indian Builders Centre’, in fact, acted as per the implied direction of the learned Magistrate, contained in the order, dated 20.1.2014. 9. It was further submitted by the learned counsel for the petitioner that the Protection Officer, while issuing notice, dated 12.2.2014, incorporating an additional direction to put the revision petitioner/aggrieved person in possession of the premises namely, ‘Indian Builders Centre’, in fact, acted as per the implied direction of the learned Magistrate, contained in the order, dated 20.1.2014. Therefore, assailing the aforesaid order, the revision petitioner/aggrieved person preferred the appeal before the Sessions Judge, Kamrup (M), Guwahati, under the provisions of section 29 of the DV Act. 10. Learned counsel for the respondent submitted that the action of the Protection Officer was completely illegal, being beyond the order passed by the learned trial court on 20.1.2014 and that the learned Magistrate passed the order, dated 11.3.2014, only to undo the wrong committed by the Protection Officer in incorporating an additional direction, as aforesaid, in his notice, dated 12.2.2014. 11. I have considered the rival contentions of the parties made before this court and examined the entire records including the impugned orders challenged in the appeal before the learned Sessions Judge as well as the judgment of the learned Appellate Court, which has been impugned here in this petition. 12. The submission of the learned counsel for the petitioner is that the learned Magistrate acted beyond jurisdiction to review its own order, dated 20.1.2014, as he does not possess such power of review of his own judgment and order. 13. The Protection of Women from Domestic Violence Act, 2005 is a special Act and the proceedings under any of the provisions of this Act shall be governed by the provisions of this Act only, unless otherwise provided. Section 25(2) of the DV Act provides as follows: “If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.” 14. In the instant case, the Protection Officer, in his notice, dated 12.2.2014, incorporated a direction to put the revision petitioner/aggrieved person in possession of the shop premises involved in this case and also that the petitioner did not bring in record the fact that a civil suit is pending in respect of the same premises wherein a civil court of competent jurisdiction passed an order for maintaining status quo. Therefore, on consideration of the application of the respondent, the learned Additional Chief Judicial Magistrate passed the order, dated 11.3.2014, as there was change in the circumstances requiring alteration/modification of the said order. Under the changed circumstances, as provided in section 25(2) of the DV Act, the Magistrate is empowered to pass an order like that of one dated 11.3.2014. Therefore, the order, dated 11.3.2014, does not suffer from any illegality or incorrectness. 15. Section 9(a) of the DV Act has mandated that the Protection Officer is to assist the Magistrate in the discharge of his functions under the Act. 16. Further rule 8 of the Protection of Women from Domestic Violence Rules, 2006 (‘the DV Rules’) enumerated the duties and functions of the Protection Officer. The duties and functions enumerated therein do not permit the Protection Officer to act in the manner that he did in issuing the notice incorporating one additional direction although such direction was not issued by the court. That apart, rule 10 of the aforesaid Rules assigns some other duties to the Protection Officer. The Proviso to rule 10(1) reads as follows: “The Protection Officer, if directed to do so in writing by the Magistrate shall” 17. The words “if directed to do so in writing” appearing in the proviso to rule 10(1) above makes it succinctly clear that the duties enumerated in rule 10 of the said Rules can be performed by the Protection Officer only when there is a direction, in writing, to him by the Magistrate. There is no instance in the record and even it is not the case of the present revision petitioner/aggrieved person that there was any direction, apart from the one contained in the order, dated 20.1.2014, was ever passed by the learned Magistrate. That being so, the incorporation of one additional direction is an act, on the part of the Protection Officer, blatantly illegal. That being so, the incorporation of one additional direction is an act, on the part of the Protection Officer, blatantly illegal. Therefore, there is no illegality, impropriety or incorrectness in the order passed by the learned Magistrate, as aforesaid. 18. In view of the discussions made above and the reasons recorded therein, the judgment of the learned Appellate Court, dated 18.3.2014, passed in Criminal Appeal No. 1/2014, suffers from no illegality, impropriety and incorrectness, and rather, based on materials on record, requiring no interference by this court. 19. The revision petition is accordingly dismissed. 20. Send down the LCR along with a copy of this judgment and order.