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2024 DIGILAW 1174 (ALL)

Ashutosh Mishra v. State of Uttar Pradesh

2024-05-01

ARUN KUMAR SINGH DESHWAL

body2024
JUDGMENT : Arun Kumar Singh Deshwal, J. 1. Heard learned counsel for the applicant and Sri Rajeev Kr. Singh, learned A.G.A. for the State. 2. The instant application has been filed to quash the order dated 10.11.2021 passed by Special C.J.M., Kanpur Nagar in Complaint Case No. 1159 of 2018 (Anjali Mishra vs. Ashutosh Mishra and others) and order dated 30.11.2023 passed by Additional Sessions Judge, Court No.6, Kanpur Nagar in Criminal Appeal No. 126 of 2021 (Ashutosh Mishra vs. State of Uttar Pradesh and another) and the entire proceeding thereof. 3. The contention of learned counsel for the applicant is that the proceeding under the Domestic Violence Act is barred by Section 468 Cr.P.C. as the alleged incident is shown of the year 2016 and the complaint u/s 12 Domestic Violence Act was filed in the year 2018 i.e. after two years from the date of incident. The second contention is that the applicant is already paying the maintenance u/s 125 Cr.P.C., therefore, no cause of action arose for filing the complaint in question. 4. Considering the aforesaid submission of learned counsel for the applicant and from the perusal of record, it appears that in the complaint filed u/s 12 Domestic Violence Act, opposite party No.2 has narrated a story of her harassment from the year 2016 which continued, therefore, it appears that it was the continuing cause of action. This Court in the case of Amardeep Sonkar vs. State of Uttar Pradesh and another; Application u/s 482 No. 8732 of 2024 has already observed that the proceeding under the Domestic Violence Act except the Sections 31 and 32 of Domestic Violence Act are purely civil proceeding and in the present case, till date no order has been passed against the applicant regarding maintenance or protection order, therefore, Section 468 Cr.P.C. would not apply. Even other wise, Section 28(2) of Domestic Violence Act itself provides that despite the provision of Section 28(1) Domestic Violence Act which permits the applicability of Cr.P.C., the court can lay down its own procedure. Therefore, contention of learned counsel for the applicant that the proceeding is barred by Section 468 Cr.P.C. is misconceived. 5. Even other wise, Section 28(2) of Domestic Violence Act itself provides that despite the provision of Section 28(1) Domestic Violence Act which permits the applicability of Cr.P.C., the court can lay down its own procedure. Therefore, contention of learned counsel for the applicant that the proceeding is barred by Section 468 Cr.P.C. is misconceived. 5. So far as the his second contention that the applicant is already paying maintenance to opposite party No.2 u/s 125 Cr.P.C. is concerned, Section 26(2) of Domestic Violence Act provides that the aggrieved party may seek relief under this Act in addition to any relief obtained in any proceeding other than the proceeding under Domestic Violence Act. 6. In view of the above, this Court does not find any good ground to interfere in the impugned proceeding. 7. Accordingly, the application is dismissed.