Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 785 (JK)

Sham Lal v. Madhu Choudhary

2017-09-01

SANJAY KUMAR GUPTA

body2017
1. Through the medium of this petition, petitioners seek quashment of criminal complaint and order dated 18.04.2017 in File No.86/Cr.Misc. titled “Madhu Choudhary Vs. Parveen Choudhary and ors.” pending before the Court of learned Chief Judicial Magistrate, Kathua. 2. The main facts emanating from the case set up by the petitioners are that petitioners 1 and 2 are the father in law and mother in law of the respondent, petitioner No.3 is husband and petitioner No.4 is the daughter of petitioners No.1 & 2, residing at H.No.13, Ward No.5, Vijaypur, Tehsil and District Samba. Petitioner No.3’s marriage with the respondent was solemnized on 12.12.2015 and after the marriage; the respondent left the matrimonial house without any reasonable cause and started living at Kathua. At that point of time, petitioner No.3 was posted at Bank of Borada, Amritsar and made numerous efforts to bring back the respondent but she did not responded to the request of the petitioners. It is also contended that marriage solemnized was a simple one and also dowry less and respondent without any reasonable cause deserted the petitioners. Respondent also filed a complaint under Section 12 of the J&K Protection of Women from Domestic Violence Act, 2010, in which the Court below has passed order in total disregard to the provisions of Section 12 read with Section 3 of the Act. It is contended by the petitioners that procedure prescribed under the Act is given in Section 28 which envisages that all proceeding under Section 12, 18, 19, 20, 21, 22 & 23 and offence under Section 31 shall be governed by the provisions of Code of Criminal Procedure 1989. The Learned Magistrate on presentation of the complaint without taking into consideration that there was no incidence of domestic violence in terms of Section 12 and without recording statements of the witnesses, put the petitioners to notice to which complaint, petitioners have filed objections taking one of the ground that complaint is not maintainable as it is not in terms of provisions of Domestic Violence Act and also not supported by an affidavit. Subsequently, petitioners have also moved an application to drop the proceedings but same was dismissed by the learned Magistrate. Subsequently, petitioners have also moved an application to drop the proceedings but same was dismissed by the learned Magistrate. In light of above factual background, petitioners challenged the criminal proceedings in the instant petition on the following grounds:- (i) That the criminal proceeding pending before the court of law re misuse of process of law since the petitioners have been wrongly implicated in the case and the court below without complying the mandate of Section 12 passed the order impugned which is bad. It is provided in the provision i.e., in Section 12 of the Act, which envisages that an aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under this Act, Provided that before passing an order on such application the Magistrate shall take into consideration any Domestic incident/report received by him from the protection office or the service provider. (ii) The Court below without considering these facts passed the order impugned and took the cognizance against the petitioners. Admittedly, there is no such incident. It was incumbent upon that the court below to record the statement of the witnesses before taking the cognizance, since section 28 of the Act which envisage that the procedure of Cr .P.C is applicable in the proceeding under the Act. 3. Other side has filed objections and has stated that petition u/s section 561-A Cr . P.C. is not maintainable on the grounds that, there is no provision for recording statement of applicant in Act, before taking cognizance; that in terms of section 27 Court within whose jurisdiction petitioner permanently or temporary resides has jurisdiction. That petition has been before court below as per rules of Act. 4. I have heard learned counsel for the parties and have perused the record also. 5. That petition has been before court below as per rules of Act. 4. I have heard learned counsel for the parties and have perused the record also. 5. From the perusal of file, it reveals that respondent filed a petition u/s 12 of Domestic Violence Act against petitioners herein, who are husband, parents- in-law and sister-in-law; she has also prayed for relief under Sections 18, 19, 20, 21 and any other relief on various grounds before CJM Kathua on 10.6.2016; CJM issued notice to respondents/petitioners herein; the case was then fixed for filing of objections on 23.7.2016; respondents filed objections, but on 10.9.2016 an application for dropping of proceeding was filed; in application it has been stated that as per petitioner /aggrieved person incident has taken place at Vijaypur , therefore petition at JMIC Kathua is not maintainable, as it lacks territorial jurisdiction; Court below after inviting objection and after hearing the parties has dismissed the application on the ground that as per section 27 of Act, the judicial magistrate within whose jurisdiction aggrieved person resides permanently or temporary has jurisdiction entertain the petition. Petitioner are residing at Kathua, as such JMIC (CJM) has jurisdiction. So there is no infirmity of law in the order of Magistrate. 6. Petitioners have challenged the said order dated 18.4.2017 and also proceeding of Court below on the ground that there is no act of domestic violence so petition was not maintainable. 7. This contention of counsel for petitioners is without any legal support. Because proceeding under Domestic violence Act cannot be treated as complaint in terms of Cr .P.C. because under section 12(1) of the Act an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may lodge an application to the Magistrate seeking one or more reliefs under the Act. The application under Section 12 of Act thus cannot be treated as complaint, so there was no need for magistrate to examine petitioner and witness before taking cognizance. 8. The application under Section 12 of Act thus cannot be treated as complaint, so there was no need for magistrate to examine petitioner and witness before taking cognizance. 8. So for submission of learned counsel that there was no case for initiation of proceedings against the petitioners under the Jammu and Kashmir Protection of Women from Domestic Violence act, 2010, need not be examined by this court in petition u/s 561-A Cr.P.C. Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 was enacted to provide more effective protection of the rights of women guaranteed to them under the constitution who were victims of violence of any kind occurring within the family and for matters connected thereto or incidental thereto. Other pleas raised are pertaining to facts which cannot be appreciated at this stage. 9. Further as per section 29 of D.V Act, all the orders passed under this Act are appealable. So when alternate remedy was available, this petition otherwise is not maintainable. The power under section 561-A Cr.P.C. has to be exercised in rare of rarest case. Present case is not such case. 10. In view of above, I do not find any ground to interfere in proceedings/complaint titled “Madhu Choudhary Vs. Parveen Choudhary and ors.” pending before the Court of learned Chief Judicial Magistrate, Kathua. Hence, this petition is dismissed.