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2018 DIGILAW 1850 (SC)

Shafeek v. State Of Kerala

2018-11-12

RANJAN GOGOI, SANJAY KISHAN KAUL

body2018
ORDER 1. We have heard the petitioner in person and the learned counsels for the respondents. 2. Leave granted. 3. Alleging certain incidents to have occurred on 28th July, 2015 two criminal proceedings; one under Sections 406, 498A, 323 and 34 of the Indian Penal Code, 1860 ("IPC" for short); and second under the provisions of the Protection of Women from Domestic Violence Act, 2005 ("D.V. Act, 2005" for short) were registered against the present appellant, who is the husband of the complainant. 4. The proceedings under the D.V. Act, 2005 have been quashed by an order of this Court dated 6th March, 2017 passed in Criminal Appeal No.470 of 2017 [Arising out of Special Leave Petition (Criminal) No.3923 of 2016], relevant part of which may be extracted below: "3. We have heard the learned counsels for the parties and considered the materials on record. We have perused the First Information Report (FIR) leading to the initiation of the first proceedings against the appellant under Section 498A of the Indian Penal Code, 1860 as well as the complaint which had led to the registration of the proceedings under the D.V. Act. Both the incidents are alleged to have occurred on the same date i.e. 28th July, 2015. Without going into the question whether it is a single act which had led to the registration of the two proceedings or there were two separate incidents/acts, what is clear to us is that though the incident/incidents is reported to have taken place on 28th July, 2015, the FIR alleging offence(s) under Section 498A IPC was filed on 24th August, 2015 and the proceedings under the D.V. Act were initiated by a complaint dated 23rd November, 2015. The delay in instituting the complaint under the D.V. Act by a period of four months has not been explained. That apart, it appears that in connection with a separate matter with regard to maintenance, etc. both parties had appeared before the jurisdictional Family Court on the next date i.e. 29th July, 2015 and in the said proceedings though the appellant (husband) was present, the respondent No.2 (wife) did not raise any issue with regard to the incident(s) that had occurred on the previous date. All these have given rise to a considerable doubt as to the legitimacy of the proceedings under the D.V. Act with which proceedings alone we are concerned in the present case. All these have given rise to a considerable doubt as to the legitimacy of the proceedings under the D.V. Act with which proceedings alone we are concerned in the present case. Taking into account the totality of the aforesaid facts, we are of the view that the High Court ought to have quashed the proceedings under the D.V. Act and the error in not doing so is liable to correction in the present appeal. Accordingly, we quash the proceedings under the D.V. Act and allow this appeal and set aside the order of the High Court." 5. In the light of the facts noted in the aforesaid order of this Court dated 6th March, 2017 and, particularly, having regard to the fact, already recorded, that on the very next day i.e. 29th July, 2015 the parties had appeared before the jurisdictional Family Court wherein the complainant ? wife did not raise any issue with regard to the incident that had occurred on the previous day i.e. 28th July, 2015 we are of the view that the High Court was not justified in refusing to quash the impugned proceedings registered under the different provisions of the IPC against the appellant. We order accordingly and quash the criminal proceedings i.e. Crime No.978/2015 of Ponnani Police Station now pending as CC No.1005/2015 on the files of the Judicial First Class Magistrate, Ponnani. 6. Consequently, the order of the High Court is set aside and the present appeal is disposed of in the above terms.