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2022 DIGILAW 807 (GAU)

Bhupen Kumar Nath v. Jyoti Deka

2022-07-26

KALYAN RAI SURANA

body2022
JUDGMENT : KALYAN RAI SURANA, J. Heard Mr. P. Medhi, learned counsel for the petitioners and Mr. S. Kakati, learned counsel for the respondent. 2. The respondent herein is the complainant in a complaint case filed under Sec. 12 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as "2005 Act" for short), which is registered and numbered as Misc. Case No. 75/2021 and is pending for disposal before the Court of the learned Judicial Magistrate First Class, Darrang at Mangaldai. The two petitioners herein are the opposite parties (accused) in the said case. The learned trial Court, by an order dtd. 19/3/2021, had issued notice on the petitioners herein and observed that the prayer for interim relief can wait till appearance of the petitioners. 3. By filing this petition under Sec. 482 Cr.P.C., the petitioners have prayed for quashing of the said order dtd. 19/3/2021 and all subsequent orders passed in the said Misc. Case No. 75/2021. 4. By referring to the grounds on which this present petition was presented, the learned counsel for the petitioners has submitted that the trial Court had no jurisdiction and/or authority to pass the impugned order dtd. 19/3/2021. It was also submitted that while passing the impugned order, the provisions of proviso to Sec. 12 of the 2005 Act was violated. It was also submitted that no case under Sec. 18 to 22 of the 2005 Act was made out in the complaint and therefore, the impugned order was unwarranted. It was also submitted that the said proceeding was malicious and abuse of the process of law as it was filed as a counter-blast to the divorce case filed by the petitioner and that as the divorce case was filed prior in point of time, the impugned order and all subsequent orders passed in the said proceeding were liable to be quashed. 5. The learned counsel for the respondent has made his submissions to oppose the prayer made in this petition. 6. Having heard the learned counsel for both sides, the Court has carefully examined the present petition as well as documents appended thereto. It may be mentioned that although LCR was called for by order dtd. 5. The learned counsel for the respondent has made his submissions to oppose the prayer made in this petition. 6. Having heard the learned counsel for both sides, the Court has carefully examined the present petition as well as documents appended thereto. It may be mentioned that although LCR was called for by order dtd. 3/9/2021, but as only legal issues are raised in this case, the Court deemed it appropriate that in light of the nature of submissions made by the learned counsel for the petitioner, the production of LCR (lower Court record) is not necessary as all relevant materials have been annexed to this petition. 7. At the outset, it would also be appropriate to mention herein that the word "Magistrate" has been defined under Sec. 2(i) of the 2005 Act, which is extracted below: "2 (i) "Magistrate" means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporally or otherwise or the respondent resides or the domestic violence is alleged to have taken place." 8. It would also be relevant to quote the provisions of Sec. 12 of the 2005 Act, which is as under: "12. Application to Magistrate.- (1) 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 reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-sec. (2) The relief sought for under sub-sec. (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-sec. (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall endeavour to dispose of every application made under subsec. (1) within a period of sixty days from the date of its first hearing." On the point of jurisdiction : 9. On the point of jurisdiction, two fold submissions was made by the learned counsel for the petitioners, viz., (i) that the learned trial Court had no jurisdiction and/or authority to pass the impugned order dtd. 19/3/2021; and (ii) while passing the impugned order, the provisions of proviso to Sec. 12 of the 2005 Act was violated. Both are taken up together. 10. The learned counsel for the petitioner has not been able to refer to any provisions of law or any case citation to support his submissions. 11. The learned counsel for the petitioner has also not been able to show any material from which it can be inferred that the Court, where the Misc. Case No. 75/2021 was sent for trial was not the Court of Judicial Magistrate First Class. Furthermore, there is no material on record from which it can be inferred that the learned Court which was in seisin of the proceeding of Misc. Case No. 75/2021 was sent for trial was not the Court of Judicial Magistrate First Class. Furthermore, there is no material on record from which it can be inferred that the learned Court which was in seisin of the proceeding of Misc. Case 75/2021, by any notification issued by the High Court or by the appropriate authority of the State Government, was divested of the power to try the proceedings filed under Sec. 12 of the 2005 Act. The provisions of Sec. s 2(i) and 12 of the 2005 Act, quoted herein before, undoubtedly confers power and jurisdiction to the Court of Judicial Magistrate First Class to adjudicate complaints under Sec. 12 of the 2005 Act. 12. Thus, both the points urged by the learned counsel for the petitioner in the point of jurisdiction of the Court is found to be frivolous and without any merit. Therefore, the submissions made by the learned counsel for the petitioner deserves to be and are hereby rejected. It is held that the learned Court of Judicial Magistrate First Class, Kamrup (Metropolitan), Guwahati, has the jurisdiction, power and authority to adjudicate the complaint filed under Sec. 12 of the 2005 Act. Thus, the learned counsel for the petitioners has not been able to successfully demonstrate that the impugned order dtd. 19/3/2021 is bad for want of jurisdiction. 13. Accordingly, the point is decided in the positive and against the petitioners. On whether any case was made out by the respondent under Sec. 18 to 22 of the 2005 Act : 14. The provisions of Sec. 17 relates to right of the aggrieved women to reside in a shared household. The provisions of Sec. 18 relates to right of the aggrieved women to protection orders. The provisions of Sec. 19 relates to right of the aggrieved women to residence orders. The provisions of Sec. 20 relates to right of the aggrieved women to monetary reliefs. The provisions of Sec. 21 relates to right of the aggrieved women to custody orders. The provisions of Sec. 22 relates to right of the aggrieved women to compensation. The learned counsel for the petitioners has not been able to show why no case has been made out by the respondent under Sec. 18 to 22 of the 2005 Act. The provisions of Sec. 21 relates to right of the aggrieved women to custody orders. The provisions of Sec. 22 relates to right of the aggrieved women to compensation. The learned counsel for the petitioners has not been able to show why no case has been made out by the respondent under Sec. 18 to 22 of the 2005 Act. Thus, in the absence of any adverse material on record, the Court is inclined to hold that under the facts of this case, the complaint made under Sec. 12 of the 2005 Act was maintainable and that the impugned order dtd. 19/3/2021, passed by the learned trial Court cannot be said to be unwarranted. 15. Accordingly, the point is decided in the positive and against the petitioners. On whether the said proceeding was malicious and abuse of the process of law : 16. It was submitted by the learned counsel for the petitioner that the said proceeding was malicious and abuse of the process of law as it was filed as a counter-blast to the divorce case filed by the petitioner and that as the divorce case was filed prior in point of time. Thus, it was submitted that for the aforesaid reasons, the impugned order and all subsequent orders passed in the said proceeding were liable to be quashed. 17. In this context, it would be appropriate to refer to the provisions of Sec. 26 of the 2005 Act, which is extracted herein below: "26. Relief in other suits and legal proceedings.- (1) Any relief available under Ss. 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-sec. (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief." 18. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief." 18. The provisions of Sec. 26 makes it abundantly clear that the claim to relief under the 2005 Act is in addition to and not in derogation of any law for the time being in force, but if any relief has been obtained by the aggrieved person in any other proceeding, such person is bound to inform the Magistrate of the grant of such relief. Therefore, the submissions of the learned counsel for the petitioner is contradictory to the provisions of Sec. 26 of the 2005 Act and therefore, without any merit whatsoever. The Court is inclined to hold that the proceeding of Misc. Case No. 75/2021 cannot be said to be malicious or abuse of the process of the Court or law, even assuming but not admitting that the said proceeding was filed as a counter-blast to the divorce case filed by the petitioner, which claimed to have been filed prior in point of time. 19. Thus, the said point is answered in the negative and against the petitioners. On the point that the proceeding was vitiated by virtue of non-compliance of proviso of Sec. 12 of the 2005 Act : 20. The said point as urged by the learned counsel for the petitioner is also devoid of any merit and need not detain the Court any long. In the case of Prabha Tyagi Vs. Kamlesh Devi, 2022 SCC OnLine SC 607, the Supreme Court of India in para 65 thereof had held that Sec. 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the 2005 Act and it was also clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the 2005 Act. 21. Earlier on point of time, the coordinate Bench of this Court in the case of (i) Monjit Talukdar Vs. Rita Talukdar and Anr., 2023 (1) GLT 304: Crl. Rev.P 86/2020, decided on 10/12/2021: (ii) Nilakanta Malakar @ Santo and Ors. Vs. State of Assam and Anr. 21. Earlier on point of time, the coordinate Bench of this Court in the case of (i) Monjit Talukdar Vs. Rita Talukdar and Anr., 2023 (1) GLT 304: Crl. Rev.P 86/2020, decided on 10/12/2021: (ii) Nilakanta Malakar @ Santo and Ors. Vs. State of Assam and Anr. Crl.Pet.483/2020, decided on 25/4/2022, had also held to the effect that It was not mandatory for the Magistrate to call for Domestic Incident Report before passing any order under 2005 Act and moreover, it was further held that the receipt of Domestic Incident Report was not a pre-requisite for issuing a notice to the respondent. 22. The point is answered in the negative and against the petitioner. 23. From the discussions above, the said proceeding is not found to be barred by any law for the time being in force. The case cannot be said to be abuse of the process of Court. Moreover, even if the divorce suit is pending, a mere pendency of a civil case would not deter the learned trial Court having jurisdiction to try the complaint filed under Sec. 12 of the 2005 Act. 24. It is no longer res integra that the provisions of Sec. 482 Cr.P.C. is an overriding Sec. which saves the inherent powers of the court to advance the cause of justice. Under Sec. 482 Cr.P.C., the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the Cr.P.C.; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Sec. 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. If one needs any authority on the point, it may be stated that these principles have been consistently followed and reiterated by this Court as well as the Supreme Court of India and the following cases may be referred to, viz., (i) State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335; (ii) Inder Mohan Goswami Vs. State of Uttaranchal, (2007) 12 SCC 1 ; (iii) Pramod Suryabhan Pawar Vs. Bhajan Lal, 1992 Supp (1) SCC 335; (ii) Inder Mohan Goswami Vs. State of Uttaranchal, (2007) 12 SCC 1 ; (iii) Pramod Suryabhan Pawar Vs. State of Maharashtra, (2019) 9 SCC 608 ; (iv) Birla Corpn. Ltd. Vs. Adventz Investment and Holdings Ltd., (2019) 16 SCC 610 . The Court has refrained from quoting the relevant observations of the Supreme Court of India for the purpose of brevity and to avoid reiterating the often quoted paragraphs of the aforesaid cases by Supreme Court of India and various High Courts in the Country. 25. Accordingly, the point is decided in the negative and against the petitioners. 26. Thus, all the submissions made by the learned counsel for the petitioner is repelled. Hence, neither the impugned order nor any of the subsequent orders passed in the said proceeding are liable to be quashed. Resultantly, this criminal petition is dismissed. 27. It may be mentioned that the Court has refrained itself from imposing cost. 28. Both the parties, i.e. the petitioners and the respondent, who are represented herein by their respective learned counsel shall appear before the learned trial Court, i.e. the Court of Judicial Magistrate First Class, Darrang, Mangaldai on 17/8/2022, and by producing a certified copy of this order, seek further instructions from the said learned Court. 29. Before parting with the records, as the petitioners have been successful in delaying the proceedings of Misc. Case 75/2021 for almost a year, the Court expects them to file their objection, if any, positively on 17/8/2022.