1 M.Cr.C. No.6199 of 2013 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABALPUR SB: HON. SHRI N.K.GUPTA,J Misc. Criminal Case No.6199/2013 Bhaskar Mishra & others. -Vs- Smt. Shailja Mishra. ----------------------------------------------------------------------------------- Shri U.K.Tripathi, Advocate for the applicants. Shri Dilip Pandey, Advocate for the respondent. ----------------------------------------------------------------------------------- ORDER
(Passed on the 4th day of October, 2013) By the instant petition under Section 482 of Cr.P.C. the applicants have challenged the proceedings of the Misc. Case No.16/2013 pending before the JMFC Rewa relating to Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Special Act”.).
2. The brief facts of the case are that the complainant/respondent is the wife of the applicant No.1 Bhaskar Mishra, whereas the remaining applicants are relatives of Bhaskar Mishra. A dispute arose between the parties and the applicant No.1 had moved an application for decree of divorce under Section 13 of the Hindu Marriage Act, but his application was dismissed. Some more proceedings were prosecuted by the complainant against the 2 M.Cr.C. No.6199 of 2013 applicants. At present the respondent has moved an application under Section 12 of the Special Act against all the applicants before the trial Court.
3. I have heard the learned counsel for the parties.
4. The learned counsel for the applicants has submitted that the respondent has moved a criminal case against the applicant No.1 and others for the offence punishable under Section 498-A of IPC and they were acquitted. The applicant No.1 is paying maintenance to the respondent as per the order passed in the proceeding under Section 125 of Cr.P.C. Hence, there is no any violence done by any of the applicants thereafter. The application filed by the respondent under Section 12 of the Special Act is not maintainable. It is also submitted that according to the definition of the respondent given in Section 2(q) of the Special Act only male members can be made respondents, and therefore the proceeding pending before the Trial Court against the applicants No.2 and 3 is not maintainable. In support of his contention, the learned counsel for the applicants has placed his reliance upon the order passed by the Single Bench of this Court in the case of “Ajay Kant Sharma Vs. Smt. Alka Sharma”. [2007(4) MPLJ193. 3 M.Cr.C. No.6199 of 2013 5. It is also submitted by the learned counsel for the applicants that when a proceeding under Section 498-A of IPC was concluded and the applicants were not found guilty, then the proceeding under Section 12 of the Special Act is initiated only to harass the applicants. For the powers of this Court under Section 482 of Cr.P.C. and the reasons for quashing the FIR, the learned counsel for the applicants has placed his reliance upon the orders passed by the Single Benches of this Court in the cases of “Dasrath P. Bundela Vs. State of MP”. [2012(1) MPHT196, District Cooperative Central Bank, Isagarh Vs. Leeladhan & another”. [2012 (1) MPHT201, “Goli @ Sharda Devi Vs. State of MP”. [2009(3) MPLJ610 and “Dr. Atiq Mohammad Vs. State of MP”. [205(3) MPHT52. Also he has placed his reliance upon the judgment passed by Hon'ble the Apex Court in the case of “Preeti Gupta Vs. State of Jharkhand”. [2010) 7 SCC667 and “State of Haryana Vs. Ch. Bhajan Lal and others”. (AIR1992SC604. Therefore, it is prayed that the application filed by the respondent under Section 12 of the Special Act may be quashed.
6. On the other hand, the learned counsel for the respondent has submitted that interpretation done 4 M.Cr.C. No.6199 of 2013 by the learned counsel for the applicants to the provisions of Section 2(q) of the Special Act is not correct. The female members may also be prosecuted by that provision. In support of his contention, he has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of “Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhare and others”. [(2011) 3 SCC650. It is also submitted that scope of Section 12 of the Special Act is more wide and the respondent can proceed for shelter and other facilities, which are not covered under Section 125 of Cr.P.C., and therefore if the applicant No.1 is depositing the maintenance amount, then the right of the respondent is still exists for other facilities. Similarly, no divorce took place between the parties, and therefore the applicant No.1 and his family members are not taking the respondent to their house, hence the domestic violence is continued. Therefore, if the applicants are acquitted in the case of Section 498- A of IPC, then it cannot be said that the proceedings are initiated only to harass the applicants. Under such circumstances, it is prayed that the present petition filed by the applicants under Section 482 of Cr.P.C. may be dismissed. 5 M.Cr.C. No.6199 of 2013 7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent from the judgment passed by Hon'ble the Apex Court in the case of Sandhya Manoj (supra) the Hon'ble Supreme Court has emphasized the words “may also file a complaint against the relatives of the husband or male partner”. and in those words female relatives were not excluded, therefore the respondent can be a female member also. In the light of the aforesaid judgment, it appears that the order passed by the Single Bench of this Court in the case of Ajay Kant Sharma (supra) is per inqurium, and therefore it cannot be applied at this stage. Hence, the contention of the learned counsel for the applicants cannot be accepted that the application filed under Section 12 of the Special Act cannot be prosecuted against the applicants No.2 & 3.
8. Similarly, it is apparent that the respondent is still wife of the applicant No.1 and the remaining applicants are family members of the applicant No.1. Though maintenance is granted to the respondent, however, if she is not taken to the house of the applicant No.1, then domestic violence is in continuation against the respondent, and therefore prima facie it cannot be said that an application under 6 M.Cr.C. No.6199 of 2013 Section 12 of the Special Act is not maintainable. The entire allegations made by the respondent against the applicants shall be considered by the trial Court after taking evidence of the parties, and therefore at this stage it cannot be said that the application filed under Section 12 of the Special Act is not maintainable.
9. The learned counsel for the applicants has placed his reliance upon the various judgments and orders of Hon'ble the Apex Court and the Single Benches of this Court, however those are related for the offence punishable under Section 498-A of IPC and other offences, but the proceedings under Section 12 of the Special Act are different. There is a scope that a report of the Protection Officer may be obtained in favour of the applicants and thereafter proceedings may be dropped, but in that Special Act where no limitation is fixed for filing of the application, no shelter can be given to the applicants at this stage though they were acquitted from the charge of offence under Section 498-A of IPC.
10. On the basis of aforesaid discussion, prima facie it cannot be said that the application filed under Section 12 of the Special Act is not maintainable, and therefore there is no basis by which the present petition filed by the applicants under Section 482 of 7 M.Cr.C. No.6199 of 2013 Cr.P.C. can be accepted. Consequently, it is hereby dismissed with no order as to costs. The interim order dated 16.5.2013 is automatically vacated. The trial Court is directed to proceed with the trial.
11. A copy of this order be sent to the trial Court for information and compliance. (N.K.Gupta) Judge 04.10.2013 Ansari.