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2017 DIGILAW 382 (JK)

Charanjeet Kour v. Taranjeet Kour

2017-07-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Heard learned counsel for the respondents. 2. In this petition preferred under Section 561-A of the Code of Criminal Procedure, the petitioners inter alia seek quashment of complaint initiated by the respondent No.1 under Section 12(i) of the Jammu and Kashmir Protection of Women Domestic Violence Act, 2010 and further quashment of order of cognizance dated 11.11.2016 and all other subsequent orders. 3. The brief facts of the case on hand are that the petitioners are the sisters of the respondent No.2 and respondent No.3 is the mother. It is averred that the respondent No.1, namely, Taranjeet Kour, is the legally wedded wife of respondent No.2. It is further averred that marriage of the respondent No.1 and respondent No.2 solemnised in the year 2005 as per Sikh Rites and Rituals. The relations between the respondent Nos.1 & 2 remains cordial for some time and thereafter the respondent No.1 left her matrimonial home in the year 2008 and thereafter started living with her parents. The factum of the relations has been mentioned by the respondent No.1/complainant in the complaint and this fact is also admitted by the respondent No.1 that she is living separate since 2008 with her parents. It is stated that respondent No.1 after leaving the House of the respondent No.2 lodged an FIR No. 201 of 2009 under Section 498-A RPC levelling false and frivolous allegations against the respondent Nos. 2 & 3. The challan against the respondent Nos.2 and 3 was also presented on the basis of said FIR in the Court of Special Mobile Magistrate, Kathua. The respondent in the said FIR had levelled allegations only against respondent Nos. 2 & 3. It is pertinent to mention that in the said FIR and challan presented, petitioners were neither the parties nor any allegation was levelled against them by the respondent No.1. The challan on the basis of FIR No. 201 of 2009 was presented on 22.10.2009 in the Court of Special Mobile Magistrate, Kathua. It is further stated that respondent Nos. 2 & 3 along with the father of the respondent No.2 have faced the trial conducted by the Special Mobile Magistrate, Kathua and after hearing the parties, the accused persons i.e. respondent Nos. 2 & 3 along with father, namely, S. Gurdev Singh acquitted by the Hon’ble Court by virtue of its Judgment dated 27.11.2014. 2 & 3 along with the father of the respondent No.2 have faced the trial conducted by the Special Mobile Magistrate, Kathua and after hearing the parties, the accused persons i.e. respondent Nos. 2 & 3 along with father, namely, S. Gurdev Singh acquitted by the Hon’ble Court by virtue of its Judgment dated 27.11.2014. It is stated that during the pendency of the criminal case, respondent No.1 had filed petition under Section 488 Cr.P.C for grant of maintenance against the respondent No.2 in the year 2010. The said petition was disposed of by the learned court vide order dated 21.11.2011 with the mutual consent of both the parties, whereby respondent No.1 was granted maintenance to the tune of Rs. 1600/- per month. 4. It is averred that respondent No.1 has filed a complaint against the petitioners and respondent No.2 under the Jammu and Kashmir Protection of Women Domestic Violence Act, 2010 after a gap of more than 08 years. It is averred that respondent No.1 has leveled false and frivolous allegations against the petitioners of demanding dowry, whereas the petitioners were not the parties in the FIR and neither there were any allegation against the petitioners. It is further averred that respondent No.1 has filed the present complaint only with malafide intention of harassing the petitioners as the respondent No.1 in the complaint herself has admitted that she has been living separately since 2008 in her parental home and there were not even a single allegations against the petitioners earlier in the complaint under Section 498-A RPC. It is further averred that the complaint impugned is false and frivolous in view of the fact that respondent No.1 herself has admitted in the impugned complaint that she has been living separately in her parental home since 2008 and had lodged an FIR under Section 498-A RPC in the year 2009 and in that case there was neither any allegation against the petitioners nor they were arrayed as accused in that FIR and challan produced by the State. It is stated that respondent No.1 after facing failure in the complaint under Section 498-A RPC, which has been dismissed, has filed the complaint impugned in order to harass the petitioners. 5. Learned Counsel for respondent no.1 has taken preliminary objection with regard to maintainability of this petition. It is stated that respondent No.1 after facing failure in the complaint under Section 498-A RPC, which has been dismissed, has filed the complaint impugned in order to harass the petitioners. 5. Learned Counsel for respondent no.1 has taken preliminary objection with regard to maintainability of this petition. He has argued that there is remedy of appeal under Act, so this petition is not maintainable. 6. I have considered the contentions and law on the subjects. 7. Section 29 of Domestic violation Act reads as under :- “There shall lie an appeal to the court of sessions within thirty days from the date on which the order made by Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.” 8. So in this way it can be inferred that as per section 29 of Domestic violation Act, all the orders passed under any of provision under Domestic violation Act are appealable. 9. When there is statutory remedy available under law, this petition is not maintainable. 10. In Recent Apex Judgement 2013 (4) 243 in case title Mohit alais Sonu and another v /s state of UP, it is held as under :- 23. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. 24. Courts possess inherent power in other statute also like the Code of Civil Procedure (C.P.C.) Section 151 whereof deals with such power. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. 24. Courts possess inherent power in other statute also like the Code of Civil Procedure (C.P.C.) Section 151 whereof deals with such power. Section 151 of C.P.C. reads:- “Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.” 25. This Court in the case of Padam Sen & Anr. v. State of Uttar Pradesh, AIR 1961 SC 218 regarding inherent power of the Court under Section 151 C.P.C. observed:- “The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict what has been expressly provided in the Code or against the intentions of the Legislation. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.” 26. In a Constitution Bench decision rendered in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , this Court held that :- “The inherent jurisdiction of the Court to make orders ex debito justiciae is undoubtedly affirmed by S.151 of the Code but inherent jurisdiction cannot be exercised so as to nullify the provision of the Code of Civil Procedure. Where the Code of Civil Procedure deals expressly with a particular matter, the provision should normally be regarded as exhaustive.” 27. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to. 11. 11. In view of above law, I am of considered opinion that, this petition is not maintainable. Hence without commenting on merits of case, this petition is dismissed, with a liberty to petitioners to file an appeal before Sessions court. The petitioners may take all pleas before said appellant court.