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2023 DIGILAW 377 (PAT)

Dinesh Prasad Sinha v. State of Bihar

2023-03-29

RAJIV ROY

body2023
Rajiv Roy, J. – Heard Mr. K. N. Chaubey, learned Senior Counsel for the petitioners and Mr. Rabindra Kumar Singh for the opposite party no.2 as also Mr. Jitendra Kumar Singh, learned APP for the State. 2. The present petition has been preferred for quashing of the Complaint Case No. 2678 (C) of 2014 filed before the learned Chief Judicial Magistrate, Bhojpur at Ara under sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (henceforth for short 'the 2005 Act'). 3. As per the complaint, the opposite party no.2 Vandana Srivastava was married to Niraj Kumar Srivastava (petitioner no.3) on 12.6.2011. It has been alleged that at the time of 'Sindur Dan' itself, demand of a four wheeler or Rs. 5 lakh was made. As already Rs. 12 lakh was given and further ornaments worth of Rs. 2 lakh was also presented, her father was unable to pay the amount and when they again created the same situation at the time of 'Bidai', her father finally relented and assured that the amount will be given. 4. However, as her father failed to pay the amount, she was always tortured for dowry. In between, a female child was born on 25.4.2012 at Jalandhar where her husband was posted. Further, she was regularly abused/assaulted by her husband and the allegation is that on 1.6.2012, her husband and father-in-law forcibly put her in a car and made her leave in laws' place for her parents home. Although, the complainant tried her level best to compromise the matter, as they did not relented, the FIR vide Ara-Nawada P.S. Case No. 326 of 2012 was lodged followed by the present complaint petition under 'the 2005 Act'. 5. Learned Senior Counsel, Mr. K. N. Chaubey, raised technical points in the matter. According to him, from the complaint petition, it is clear that the alleged assault took place on 1.6.2012 whereas the complaint was filed on 21.11.2014 under 'the 2005 Act'. He submits that the maximum period of punishment is one year and as the petition was filed beyond one year, the same was not maintainable in the light of Section 468 of the Cr.P.C.. He has drawn attention of this Court to section 468 of the Cr.P.C. which reads as follows: – 468. Bar to taking cognizance after lapse of the period of limitation. He has drawn attention of this Court to section 468 of the Cr.P.C. which reads as follows: – 468. Bar to taking cognizance after lapse of the period of limitation. – (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only, (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. 2[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.] 6. He as such submits that the complaint preferred by the opposite party no.2 is in the teeth of Section 468 of the Cr.P.C. and thus the same is fit to be quashed. 7. The second point taken by the learned Senior Counsel is that as the entire occurrence took place in Jalandhar (Punjab), under no circumstances, the complaint could have been lodged at Bhojpur at Ara and on this account also, the order needs interference. 8. In support of his point of filing complaint beyond the period of limitation is impermissible, he has drawn attention of this Court to an order of Patna High Court in the case of Santosh Kumar vs. The State of Bihar and Anr. 8. In support of his point of filing complaint beyond the period of limitation is impermissible, he has drawn attention of this Court to an order of Patna High Court in the case of Santosh Kumar vs. The State of Bihar and Anr. reported in 2017(4) BBCJ 163 which read as follows: – “Code of Criminal Procedure, 1973- Section 482 r/w Sections 18, 19, 20 and 27 of the Domestic Violence Act- Complaint filed in the Present case after the expiry of the period of limitation- Complaint under the D.V. Act be filed only within a period of one year from the date of incident in view of the provisions of Section 28 and 32 of the D.V. Act-Dissolution of marriage filed by the petitioner for dissolution of marriage was allowed-Complaint under the D.V. Act filed after more than four months of passing of the decree of divorce- Complaint under the D.V. Act by the ex-wife after divorce not maintainable in law- Complaint and the entire proceeding including the impugned order quashed.” 9. He as such submits that the present petition be allowed. 10. Per contra, Mr. Rabindra Kumar, learned Counsel who represents the O.P. No. 2, on the point of jurisdiction has drawn attention of this Court to Section 2(i) of 'the 2005 Act' which read as follows: – "2. Definitions. – In this Act, unless the context otherwise require,- (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 temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;" 11. He has further drawn attention to this Court to Section 27 which read as follows: – 27. Jurisdiction. He has further drawn attention to this Court to Section 27 which read as follows: – 27. Jurisdiction. – (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which – (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act (2) Any order made under this Act shall be enforceable throughout India. 12. Learned counsel for the O.P. No. 2 has drawn attention of this Court to a case of Shyamlal Devda vs. Parimala reported in 2020 Criminal Law Journal 2114 [ 2020 (3) BLJ 214 (SC)] with specific reference to paragraph 10 which is on the point of jurisdiction. 13. In that case, the husband was residing at Chennai while the lady was with her parents at Bengaluru. Further, as the lady refused to join her matrimonial home, the appellant preferred petition under Section 9 of the 'Hindu Marriage Act' of restitution of conjugal rights before the Family Court, Chennai. Thereafter, the respondent lady claiming herself to be a victim of domestic violence seeking protection under Section 18 and residence order under Section 19 as also monetary relief under Section 20 of 'the Act' preferred petition before the Court of learned Metropolitan Magistrate at Bengaluru against her husband, in- laws and other relatives who were residing in different parts of the country viz. Chennai, Rajasthan and also in Gujarat. 14. The learned Magistrate, Bengaluru vide an order dated 16.04.2015 issued notice to the appellants by holding that the Court has jurisdiction to entertain the petition filed by the respondent under Section 27 of Domestic Violence Act. 15. Aggrieved, the appellants preferred petition under Section 482 Cr.P.C. before the High Court seeking quashing of the entire proceeding which was dismissed by holding that the complaint filed by the respondent giving instances of domestic violence at Chennai, Rajasthan or Gujarat have been narrated and therefore, the complaint filed in Bengaluru is maintainable under Section 27 of the Domestic Violence Act. 16. 16. Still aggrieved, the appeal was preferred before the Hon'ble Apex Court, which in para 10 observed as follows: – 10. Insofar as the jurisdiction of the Bengaluru Court, as pointed out by the High Court, Section 27 of the Protection of Women from Domestic Violence Act, 2005 covers the situation. Section 27 of the Act reads as under: 27. Jurisdiction. – (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which- (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be 5- the competent court to grant a protection or- Es der and other orders under this Act and to try offences under this Act (2) Any order made under this Act shall be enforceable throughout India. A plain reading of the above provision makes it clear that the petition under the Domestic Violence Act can be filed in a court where the "person aggrieved" permanently or temporarily resides or carries on business or is employed. In the present case, the respondent is residing with her parents within the territorial limits of Metropolitan Magistrate Court, Bengaluru. In view of Section 27(1)(a) of the Act, the Metropolitan Magistrate court, Bengaluru has the jurisdiction to entertain the complaint and take cognizance of the offence. There is no merit in the contention raising objection as to the jurisdiction of the Metropolitan Magistrate Court at Bengaluru. 17. A plain reading of the order of the Hon'ble Apex Court, it is clear that the lady herein has rightly filed the case at Ara and the same does not need any interference. 18. This Court has taken note of the different sections, (as submitted) of 'the 2005 Act' and a conjoint reading of the two sections of 'the 2005 Act' clearly shows that the makers of 'the Act' have taken great care in incorporating the aforesaid sections to the benefit of the women for which it was envisaged. 18. This Court has taken note of the different sections, (as submitted) of 'the 2005 Act' and a conjoint reading of the two sections of 'the 2005 Act' clearly shows that the makers of 'the Act' have taken great care in incorporating the aforesaid sections to the benefit of the women for which it was envisaged. It is further clear that the aggrieved person residing temporarily or otherwise at the place of residence or where the violence has been taken place can file a complaint and thus so far as the jurisdictional part is concerned, the O.P. No. 2 had the option of lodging the complaint either at Jalandhar or Bhojpur (Ara) where she is staying with her parents and thus that cannot be questioned. 19. Learned Counsel submits that section 468 of the Cr.P.C. puts a bar on taking cognizance after lapse of period of limitation. However, in the present case, Section 468 of the Cr.P.C. will not come into play as it is not the case of the petitioners that cognizance has been taken in the matter and/or they are challenging the cognizance order rather only complaint was filed on which the petitioners were put on notice. 20. On the limitation point learned counsel for the informant brought another judgment of the Hon'ble Apex Court in Kamatchi vs Lakshmi Narayanan reported in AIR 2022 Supreme Court 2983 and has drawn attention of this Court to paragraph 15 which read as follows: – 15. Let us now consider the applicability of these principles to cases under the Act. The provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence commit- ted in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence commit- ted in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the pro- visions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only after there is a breach of an order passed under Section 12 of the Act. 21. He has further taken this Court to paras 19 and 20 of the said order which again read as follows: – "19. In the first instance, it is, therefore, necessary to examine the areas where the D.V. Act or the D.V. Rules have specifically set out the procedure thereby excluding the operation of Cr.PC, as contemplated under Section 28(1) of the Act. This takes us to the D.V. Rules. At the outset, it may be noticed that a "complaint" as contemplated under the D.V. Act and the D.V. Rules is not the same as a "complaint" under Cr.P.C. A complaint under Rule 2(b) of the D.V. Rules is defined as an allegation made orally or in writing by any person to a Protection Officer. On the other hand, a complaint, under Section 2(d) of the Cr.PC. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 was decided of the Act is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a complaint but an application to a Magistrate as set out in Rule 6(1) of the D.V. Rules. A complaint under the D.V. Rules is made only to a Protection Officer as contemplated under Rule 4(1) of the D.V. Rules. 20. Rule 6(1) sets out that an application under Section 12 of the Act shall be as per Form II appended to the Act. A complaint under the D.V. Rules is made only to a Protection Officer as contemplated under Rule 4(1) of the D.V. Rules. 20. Rule 6(1) sets out that an application under Section 12 of the Act shall be as per Form II appended to the Act. Thus, an application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C. the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no applilcation to a proceeding under the D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure set out in the subsequent Chapter XV of the Code will apply only in cases of complaints, under Section 2(d) of Cr Cr.P.C, given to a Magistrate and not to an application under Section 12 of the Act." 22. Finally, the learned Counsel took this Court to para 22 of the order which read as follows: – 22. Lastly, we deal with the submission based on the decision in Adalat Prasad. The ratio in that case applies when a Magistrate takes cognizance of an offence and issues process, in which event instead of going back to the Magistrate, the remedy lies in filing petition under Section 482 of the Code. The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the Statute so that after considering rival submission, appropriate order can be issued. Thus, the matter stands on a different footing and the dictum in Adalat Prasad 4 would not get attracted at a stage when a notice is issued under Section 12 of the Act. 23. Again, the conjoint reading of the three paragraphs, which the learned counsel for the informant has drawn attention to clearly shows that when the learned Magistrate took cognizance of an offence and issued process, only then, the Section 482 of Cr.P.C. can be invoked. 24. However, in the present case, when only notice under 'the 2005 Act' was issued with direction to submit response so that an appropriate order could be passed, the same stands on different footing and the order passed in Santosh Kumar vs. The State of Bihar and Anr. (supra) cited by the learned Senior Counsel for the petitioner cannot come to his rescue. 25. (supra) cited by the learned Senior Counsel for the petitioner cannot come to his rescue. 25. Thus, this Court holds that when only notice was issued on the complaint preferred by the opposite party under 'the 2005 Act' seeking their response and no cognizance order was passed, the limitation under Section 468 of the Cr.P.C. cannot come into picture/will be applicable. 26. Further, under 'the 2005 Act' the aggrieved lady do have the liberty to file complaint where she permanently or temporarily resides or carries on business or is employed. In sum, her right to complain has not been limited to the place of occurrence. 27. Considering the aforesaid facts, the rival submissions as also the cases cited by the respective parties, this Court has to go with the views expressed by the Hon'ble Apex Court as recorded in above paragraphs and in that view of the matter, the petition preferred for quashing of the entire proceeding of Complaint Case No. 2678 (C) of 2014 pending before the learned Judicial Magistrate, Ara under 'the 2005 Act' needs no interference. 28. The petition as such preferred under Section 482 of the Cr.P.C. is devoid of merit and is accordingly rejected.