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2017 DIGILAW 2056 (RAJ)

Kapil Singh Parihar v. State of Rajasthan

2017-09-13

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. 1. By way of this revision, the petitioner Kapil Singh has approached this Court for assailing the order dated 31.8.2016 passed by learned appellate court being the Addl. Sessions Judge No. 2, Nagaur in appeal no. 2/2016 whereby, the appeal preferred by the respondent Santosh (the petitioner's wife) was partly allowed and the matter was remanded to the learned Chief Judicial Magistrate, Nagaur for fresh decision of the application preferred by the respondent herein under Section 12 read with section 6 of the Protection of Women From Domestic Violence Act, 2005. 2. The learned C.J.M. while deciding the Cr. Application/Case No. 323/2012 preferred by the respondent Smt. Santosh under 2 the provisions of Protection of Women from Domestic Violence Act, 2005 (here-in-after referred to as the Act of 2005) proceeded with the assumption that the application was time barred and rejected the same by order dated 12.6.2015 observing that the application, if any could only be filed within a period of one year from alleged commission of the alleged domestic violence. Chief Judicial Magistrate concluded that as the application was presented beyond the period of limitation, the same was barred by limitation. The respondent Smt. Santosh challenged the said order by preferring an appeal before the Addl. Sessions Judge which came to be allowed by the impugned order dated 31.8.2016 and the matter was remanded to the trial court holding that the issue of the proceedings being barred by limitation could only be decided after permitting the parties to lead evidence. The said order dated 31.8.2016 passed by the Appellate Court is under challenge in this revision. 3. Heard learned counsel for the parties and perused the material available on record. 4. Learned counsel Mr. Sudhir Tak representing the petitioner placed reliance on following observations made by Hon'ble Supreme Court in the case of Inderjit Singh Grewal vs. State of Punjab and Another, 2012 Cr.L.R. (SC) 16:- "24. 3. Heard learned counsel for the parties and perused the material available on record. 4. Learned counsel Mr. Sudhir Tak representing the petitioner placed reliance on following observations made by Hon'ble Supreme Court in the case of Inderjit Singh Grewal vs. State of Punjab and Another, 2012 Cr.L.R. (SC) 16:- "24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C. 1973 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 3, 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 vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 and Noida Entrepreneurs Association vs. Noida and Others, (2011) 6 SCC 508 ." 5. He further placed reliance on the later Supreme Court judgment in the case of Krishna Bhatacharjee vs. Sarathi Choudhury and Another, 2015 Cr.L.R. (SC) 1287 and urged that the judgment in Inderjit Singh Grewal's case (supra) was approved in the later decision and hence the impugned order of remand dated 31.8.2016 passed by the Appellate Court is bad in the eye of law and deserves to be set aside. As per him the application filed by the respondent was time barred and the trial court was justified in rejecting the same by its order dated 12.6.2015. 6. Per contra learned counsel Mr. Sunil Mehta appearing for the respondent Smt. Santosh vehemently opposed the submissions advanced by Mr. Tak and contended that no illegality was committed by the Appellate Court while remanding the matter to the trial court and as such the revision deserves to be dismissed. 7. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the material on record. 8. The controversy raised in the revision hinges around the above referred observations made by Hon'ble Supreme Court in the case of Inderjit Singh Grewal (supra). In case, the 4 observations do lay down a proposition of law then the argument of Mr. Tak appears attractive. 8. The controversy raised in the revision hinges around the above referred observations made by Hon'ble Supreme Court in the case of Inderjit Singh Grewal (supra). In case, the 4 observations do lay down a proposition of law then the argument of Mr. Tak appears attractive. However, this Court feels pursuaded to examine as to whether the observations in Inderjit Singh's case referred to supra can be considered as laying down a ratio decidendi and whether the provisions of Section 468 Cr.P.C. 1973 apply to proceedings under the Protection of Women from Domestic Violence Act, 2005 or not. Suffice it to say that the same judgment was considered in Krishna Bhatacharjee's case (supra) and the bench refrained from making any observations regarding the questioned observations regarding limitation, observing that retention of Stridhan articles of a woman by the husband or other family members amounted to continuing offence and thus the doctrine of limitation would be irrelevant. It may be mentioned that the above referred observations made by Hon'ble the Supreme Court in Inderjit Singh Grewal's case appear to be more in the nature of a mere passing reference and no actual adjudication was made on the aspect of applicability of limitation under section 468 Cr.P.C. 1973 to proceedings under the Act of 2005. Two provisions of Protection of Women from Domestic Violence Act, 2005 which find mention in the above referred paragraph of Inderjit Singh's judgment are Sections 28 and 32 of the Act of 2005. It may be stated here that Section 468 Cr.P.C. 1973 stipulates that for specified offences (subject to exceptions) punishable with a maximum sentence of three years cognizance cannot be taken after lapse of period of the limitation. Thus, for the controversy at hand, it would have to be seen as to whether any such offence is defined under the Protection of Women from Domestic Violence 5 Act, 2005 which could be governed by the concept of limitation under Section 468 Cr.P.C. 1973 On glancing through the entire scheme of the Protection of Women from Domestic Violence Act, 2005 it is apparent that only one offence under Section 31 is provided in the entire framework of the Act. The said provision postulates that a breach of protection order, or of an interim protection order shall be an offence under the 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 both. In a situation where the Magistrate passes an order of protection or an interim protection order under Section 12 read with Section 18 and the said order is breached only then, the offence under section 31 of the Act would begin to operate and the period limitation would have to be calculated in reference to the date of commission of such offence. Since the issue has not arisen, this Court need not dwell upon the aspect of the said offence being a continuous one or otherwise. Apparently, thus the observations made by Hon'ble Supreme Court in Inderjit Singh Grewal's case (supra) have to be applied only for a prosecution under section 31 of the Protection of Women From Domestic Violence Act, 2005 and nothing beyond that. Evidently, only after an order of protection is passed and breached, question of calculating limitation would arise. 9. In the case at hand, the learned Magistrate rejected the application filed by the respondent wife under Section 12 of the Act of 2005 right at the outset without issuing any protection order, residence order or order of monetary relief. Thus, No. 6 occasion had arisen requiring the learned Magistrate to have applied the bar of limitation prescribed under Section 468 Cr.P.C. 1973 to the proceedings. The order passed by the Magistrate is without foundation and hence there was no requirement for the learned Appellate Court to have remanded the matter to the said court for deciding the issue of limitation afresh because there was no occasion to consider the bar of limitation regarding the proceedings. 10. So far as the observations touching this controversy made by the Hon'ble Supreme Court in Inderjit Singh Grewal's case (supra) are concerned, the same approve mere preponderance of the arguments advanced by the learned counsel representing the parties before the Court. The Dictionary meaning of preponderance is "the quality or fact of being greater in number, quantity, or importance." Thus, apparently, the argument advanced by the learned counsel in the said case was accepted on the theory of probability of its correctness. The Dictionary meaning of preponderance is "the quality or fact of being greater in number, quantity, or importance." Thus, apparently, the argument advanced by the learned counsel in the said case was accepted on the theory of probability of its correctness. For the observations to be accepted as laying down a ratio decidendi, the pronouncement has to be by way of certainty and not by mere probabilities. The same judgment was referred to in the subsequent decision of Krishna Bhatacharjee's case (supra) but the Hon'ble Supreme Court refused to make any comment thereupon. 11. In view of the discussion made above, I am of the firm opinion that the observations made by Hon'ble Supreme Court at para no. 24 in Inderjit Singh Grewal's case (supra) do not lay down any proposition of law that all proceedings under the 7 Domestic Violence Act would be governed by bar of limitation as provided in Section 468 Cr.P.C. 1973 Limitation if at all could govern an offence committed under section 31 of the Act owing to breach of a protection, interim protection order. 12. Consequently, the revision is hereby dismissed as being devoid of merit. The order passed by learned Appellate Court requiring the trial court to reconsider the matter on the aspect of limitation is also modified and it is hereby directed that the applications preferred by the respondent under the Protection of Women from Domestic Violence Act, 2005 shall be proceeded with and decided on merits as per law after providing opportunity of hearing to the parties and holding the requisite inquiry. Learned trial court is directed to decide the application filed by the respondent under provisions of Protection of Women from Domestic Violence Act, 2005 expeditiously.