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2023 DIGILAW 235 (DEL)

Nargis v. Shakiluddin

2023-01-17

ANUP JAIRAM BHAMBHANI

body2023
ORDER By way of present petition under section 482 of the Code of Criminal Procedure 1973 ('Cr.P.C.') the petitioner/wife seeks setting-aside of judgement dated 26.05.2017 made by the learned Additional Sessions Judge in CRL.A. No. 345/2016, whereby the learned ASJ has been pleased to uphold judgement dated 15.11.2016 made by the learned Metropolitan Magistrate in CC No.46-V/2012 on a complaint made by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('D.V. Act'). 2. Notice on this petition was issued on 07.09.2017; whereupon respondent Nos. 1, 3 and 4 have filed their reply. Rejoinder thereto has also been filed in the matter. Counsel for the respondents submits that respondent No. 2/ father-in-law has since passed away. 3. Mr. Neeraj Bhardwaj, learned counsel appearing for the petitioner has sought to impugn judgement dated 26.05.2017 essentially on the basis that the learned ASJ has failed to appreciate that the petitioner had successfully shown that she was an 'aggrieved person' and that acts of violence had been committed upon her by the respondents. Counsel has taken the court through the impugned order, in particular assailing the inferences and conclusions drawn by the learned ASJ in paras 9, 10, 11 and 12 thereof. 4. It is noticed from a perusal of the impugned judgement that the learned ASJ records that the appellant, who was examined as PW-1 before the learned Magistrate, had confirmed that she had received the amount of mahr; but had failed to produce any document in support of the articles (i.e. TV, refrigerator, washing machine, etc.) that she had alleged were given to the respondents at the time of marriage. The learned ASJ further records that the petitioner had failed to adduce any evidence, whether documentary or otherwise, to substantiate the allegation that respondent No.1 was in an illicit relationship with a lady who had been named in the complaint; or that the said lady was respondent No.1's wife. 5. The learned ASJ further records that the petitioner's allegations were general in nature, with no specifics provided either in the complaint or in her testimony as regards harassment due to dowry demands. It is further recorded that the petitioner's testimony suffers from inherent discrepancies and contradictions. 5. The learned ASJ further records that the petitioner's allegations were general in nature, with no specifics provided either in the complaint or in her testimony as regards harassment due to dowry demands. It is further recorded that the petitioner's testimony suffers from inherent discrepancies and contradictions. The learned ASJ finds, that having alleged in her complaint that the respondents had demanded from her Rs.3 lacs and a car, the petitioner could not even confirm these facts in the witness box; and could also not connect the demands with dowry harassment. 6. The learned ASJ has further gone-on to record that the petitioner had not lodged any complaint nor made any PCR call nor got herself examined, when she alleged that respondent No.1 had cut her vein. The petitioner did not even report the incident to her parents. The learned ASJ further records that the same was the position in respect of the alleged incident of 28.07.2010. 7. In these circumstances, the learned ASJ concludes that the petitioner's allegations were "... only vague and omnibus in nature"; that the petitioner had failed to establish the factum of domestic violence alleged to have been committed against her. 8. On the other hand, the learned ASJ records that respondent No.1 had filed 02 complaints on 23.09.2010 and 03.11.2010, i.e. prior to the filing of the petition under the D.V. Act by the petitioner, which disclosed "... her unwelcome behaviour with respondents." The learned ASJ proceeds then to record that the consequences of an order under the D.V. Act entails grave and serious consequences; and the petitioner having failed to establish any domestic violence having been committed upon her, she was not entitled to any monetary relief, especially since she had admitted to having received the mahr amount and had admitted to being an educated person capable of earning for herself. 9. The learned ASJ also records, that though respondent No.1 had filed his examination-in-chief by way of affidavit, he failed to present himself for cross-examination; and his evidence was accordingly closed on 05.07.2016. 10. Learned counsel for the respondents submits for completeness, that the respondents are being prosecuted in case FIR No.399/2011; and there is already an order by the concerned court under section 125 Cr.P.C. for payment of maintenance of Rs.20,000/- per month to the petitioner. 11. 10. Learned counsel for the respondents submits for completeness, that the respondents are being prosecuted in case FIR No.399/2011; and there is already an order by the concerned court under section 125 Cr.P.C. for payment of maintenance of Rs.20,000/- per month to the petitioner. 11. A brief reference to the scope and ambit of the powers under section 482Cr.P.C and the guiding factors for its exercise, may be relevant at this point. The following observations of the Supreme Court in Jeffrey J. Diermeier vs. State of W.B. , (2010) 6 SCC 243 , pithily set out the contours of section 482 Cr.P.C: "20. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of the inherent powers of the High Court under Section 482 of the Code. The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice. * * * * * "23. The purport of the expression "rarest of rare cases", to which reference was made by Shri Venugopal, has been explained recently in Som Mittal (2) v. Govt. of Karnataka [ (2008) 3 SCC 574 ]. Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said: "9. When the words 'rarest of rare cases. are used after the words 'sparingly and with circumspection. while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection.. Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said: "9. When the words 'rarest of rare cases. are used after the words 'sparingly and with circumspection. while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection.. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression 'rarest of rare cases. is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection." (emphasis supplied) 12. Upon an overall consideration of the matter, and finding no perversity or other serious infirmity in the impugned judgement made by the learned ASJ, this court is not inclined to exercise its inherent powers under section 482 Cr.P.C. to interfere in the decision so made. 13. Judgement dated 26.05.2017 made by the learned ASJ, upholding order dated 15.11.2016 of the learned Magistrate, is accordingly upheld. 14. The present petition is dismissed and stands disposed-of accordingly. 15. Pending applications, if any, also stand disposed-of.