In the instant case, learned Magistrate passed an interim protection order granting maintenance which by itself does not constitute an offence. Section 31 of the Domestic Violence Act makes a breach of protection order, final or interim, an offence under the said Act. Issue of the applicability of Section 468 of the Code of Criminal Procedure, 1973 prescribing bar to taking cognizance after the lapse of the period of limitation prescribed therein would only arise at the time of taking cognizance of such an offence as spelt out under section 31 of the Domestic Violence Act. On the date of the alleged desertion of the respondents, there was no protection order and as such there could be no breach of it translating the said occurrence into a crime as spelt out under Section 31 of the said Act. Thus, the application made by the applicant under the Domestic Violence Act for protection order can not be viewed as a complaint of the offence u/s 31 of the Domestic Violence Act. Submission on behalf of the petitioner that the present proceedings are hit by Section 468 of the Code of Criminal Procedure, 1973 is, therefore, without any merit. Learned Sessions Judge, Ahmednagar, therefore, rightly dismissed such submission made on behalf of the petitioners by making pertinent observations at para 22 of the impugned judgment.
10. Submissions as regards the nature of the action initiated by the respondents i.e. the counter blast to the action initiated by the petitioner to seek custody of the children, it can only be said that hunger knows no limitation and need for sustenance can arise any time
Bombay High Court
Shaikh Ishaq Budhanbhai vs (Original on 8 August, 2012
Bench: U. D. Salvi
1. Heard. Perused records.
2. Rule. Rule made returnable forthwith. Finally heard by mutual consent.
3. The petitioner / husband is seeking quashing of the orders passed by the learned Judicial Magistrate (First Class), Ahmednagar in Criminal Miscellaneous Application No. 608/2011 and by learned Additional Sessions Judge, Ahmednagar in Criminal Appeal No. 199/2011 confirming the aforesaid order passed by learned Judicial Magistrate (First Class).
4. The respondents wife and children of the petitioner filed Criminal Miscellaneous Application No. 608/2011 for orders under section 23 read with section 12, 17, 18, 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as "D.V. Act") in the Court of Chief Judicial Magistrate, Ahmednagar, on the allegations that she was driven out of the matrimonial home by the petitioner / husband without 3 Cri. WP 310/2012 making provision for their maintenance and shelter. Learned Judicial Magistrate (First Class), Ahmednagar ordered an inquiry and called for its report from Tahsildar, Ahmednagar as per the provisions of the said Act vide order dated 07/07/2011. The petitioner appeared in the said proceedings and resisted the petition with his say dated 07/10/2011. The respondents moved an application Exhibit 10 for grant of interim maintenance. Learned Judicial Magistrate (First Class), Ahmednagar after hearing the parties and upon considering the inquiry report and accompanying documents granted interim maintenance of Rs. 3,000/- per month to the respondent No.1 and Rs.2,000/- per month to respondent Nos. 2 and 3 each, vide order dated 21/11/2011. Worth of this order was challenged in Criminal Appeal No. 199/2011 before Additional Sessions Judge, Ahmednagar. After hearing the parties, the learned Additional Sessions Judge, Ahmednagar dismissed the appeal with costs quantified at Rs.3,000/-. It is this order which has also been questioned in the present writ petition.
5. The learned advocate for the petitioner submitted that all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offence under section 31 are governed by the provisions of Criminal Procedure Code, 1973 and as such the present 4 Cri. WP 310/2012 proceedings initiated by the respondents three years after the alleged act of deserting her is barred by Section 468 of the Criminal Procedure Code, 1973. He invited the attention of this Court to para 24 in the judgment delivered by the Hon'ble Apex Court in Inderjit Singh Grewal's case ( Inderjit Singh Grewal Versus State of Punjab and another) : 2011 (6) Supreme 181. According to him, this action is a counter blast to the action initiated by the petitioner to seek custody of his children the respondent Nos. 2 and 3.
6. Learned Advocate for the respondents submitted that application under Section 12 is not a complaint and as such, the question of application of Section 468 of the Code of Criminal Procedure, 1973 is redundant. Reliance was placed on the judgment delivered by the Madhya Pradesh high Court in Ajay Kant's case [ Ajay Kant & ors. Vs. Smt. Alka Sharma : 2008 CRI.L.J. 264(1) ].
7. Section 28 of the Domestic Violence Act reads as under :
"28. Procedure.-- (1) Save as otherwise provides in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
5 Cri. WP 310/2012 (2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23."
8. It makes applicable the provisions of the Code of Criminal Procedure, 1973 so far as are applicable to all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31. It specifically gives freedom to the Court dealing with the applications under Section 12 or under sub- section (2) of Section 23 of the Domestic Violence Act to lay down its own procedure for its disposal.
9. In the instant case, learned Magistrate passed an interim protection order granting maintenance which by itself does not constitute an offence. Section 31 of the Domestic Violence Act makes a breach of protection order, final or interim, an offence under the said Act. Issue of the applicability of Section 468 of the Code of Criminal Procedure, 1973 prescribing bar to taking cognizance after the lapse of the period of limitation prescribed therein would only arise at the time of taking cognizance of such an offence as spelt out under section 31 of the Domestic Violence Act. On the date of the alleged desertion of the respondents, there was no protection order and as such there could be no breach of it translating the said occurrence into a crime as spelt 6 Cri. WP 310/2012 out under Section 31 of the said Act. Thus, the application made by the applicant under the Domestic Violence Act for protection order can not be viewed as a complaint of the offence u/s 31 of the Domestic Violence Act. Submission on behalf of the petitioner that the present proceedings are hit by Section 468 of the Code of Criminal Procedure, 1973 is, therefore, without any merit. Learned Sessions Judge, Ahmednagar, therefore, rightly dismissed such submission made on behalf of the petitioners by making pertinent observations at para 22 of the impugned judgment.
10. Submissions as regards the nature of the action initiated by the respondents i.e. the counter blast to the action initiated by the petitioner to seek custody of the children, it can only be said that hunger knows no limitation and need for sustenance can arise any time. No interference in exercise of writ jurisdiction is, therefore, warranted in the impugned order. Criminal Writ Petition No.310/2012 is, therefore, rejected. Rule is discharged.
(U.D. SALVI, J.)
No comments:
Post a Comment