HONOURABLE Dr.
JUSTICE B.SIVA SANKARA RAO CRIMINAL PETITION Nos.22371 OF201517-07-2015 Gaddameedi Nagamani .Petitioner The State of Telangana, rep., by Public Prosecutor and three others Respondents .
Respondents Counsel for the petitioneRs.Sr.K.Govind Counsel for the Respondents: Learned Public Prosecutor for Telangana : ?.
Cases referred: 2015(1) ALD (CRIMINAL) 19 (SC) 2 2007 CriLJ20573 AIR1992SC6044 1997(9) SC2795 2015(2) ALT (Crl.) 196 (A.P) 6 2013(2) ALD (Crl.)341 (AP) 7 2013(1) ALD (Crl.) 150 (AP) 8 1985 AIR1729HONOURABLE Dr.
JUSTICE B.SIVA SANKARA RAO CRIMINAL PETITION (S.R.) Nos.22371, 22956, 23270, 23432 AND23568OF2015Common Order:
All these five matters listed for hearing on the office note for orders as to maintainability of quash petition under Section 482 Cr.P.C in an application filed under the Protection of Women from Domestic Violence Act, 2005 (for short the Act) that was taken cognizance to the file and numbered and the learned Magistrate issued summons consequently, by impugning the same.
Perused the office objection.
Heard the learned counsel for the petitioners in the respective criminal petitions and the learned Public Prosecutors of Telangana and Andhra Pradesh States at length with reference to the relevant provisions and propositions and perused the material on record.As per Section (2)(i) of the Act, Magistrate means the Judicial Magistrate of the fiRs.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; As per Section 2(m) of the Act, prescribed means prescribed by rules made under this Act; As per Section 2(q) of the Act, respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner; The reliefs and procedure for obtaining orders or reliefs provided in Chapter-IV of the Act, of which Sections 12 to 29 are relevant.
Before going to that, the Chapter-V miscellaneous relating to protection officeRs.penalty for breach of protection order by respondent and its cognizance defined in Section 32 are as follows: Chapter-V-Section 32: Cognizance and proof.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.
Among which Section 32(i) referred supra speaks of the offence provided by Section 31 is a cognizable and non-bailable offence, notwithstanding anything contained in the Cr.P.C.(which mean including Schedule-II as Schedule-I deals with I.P.C.offences and Schedule II covered the offences under any other enactments).It is to say, Section 32 is worded with non-obstante clause.
To understand the emphasis, before going to the scope of Sections 26 to 29 of the Act, it is essential to read Sections 4(2) and 5 of Cr.P.C.and also Section 190 Cr.P.C.Section 190 Cr.P.C.speaks of cognizance of offence by the Magistrate in three ways, viz., upon receiving a complaint of facts, upon a police report or upon information received from any person other than a police officer or upon his own knowledge.
Cognizance is not defined in the Code of Criminal Procedure.
Victim is defined in 2(w)(a).Cognizance to mean application of judicial mind to the facts on hand.
It is to say even taking on file of a case as can be seen from wording of Section 190 Cr.P.C.supra is taking of cognizance of the offence or the case as it may be of other matter covered by the Code.
Now coming to Sections 4 and 5 of Cr.P.C., Section 4(1) deals with offences under Indian Penal Code whereas Section 4(2) deals with other offences.
Section 4(2) reads that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions(of the Code).but subject to any enactment for the time being in force regulating the matter or place of investigating, inquiring into, trying or otherwise dealing with such offence.
Section 5 speaks Saving clause that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
It is to say from the combined reading of Section 4(ii) r/w Sections 5 of Cr.P.C.and 32(i) of the Act, the offence defined in Section 31 is cognizable and non-bailable irrespective of what is contained in Cr.P.C.from the non-obstante clause that is saved and for other areas Cr.P.C.applies.
In addition to that, the same is confirmed by the wording of Section 26 of the Act which reads that (1) any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person against the respondent, whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
It is to say Domestic Violence Act provisions are available but not the only forum for the aggrieved to chose, as even instead of coming to criminal Court by invoking doors of the provisions of this Act can invoke other provisions, Procedural Law with any other substantive law and also can invoke substantial civil remedy by invoking Code of Civil Procedure.
Further, even there is no specific provision under the Act for interim relief in appeal including in Section 29 of the Act, once Cr.P.C.applies for any interim relief Section 389 Cr.P.C.can be invoked by virtue of Sections 26 and 28 of the Act r/w Sections 4 and 5 of Cr.P.C.It is the sum and substance of Section 26 of the Act.
The expression in Shabe Oza v.
M.Oza , there is no finding or observation and no reference made to Sections 26 to 29 of the Act.
it is also held that even a statute not provided for interim relief specifically, general provisions of law can be invoked.
Hence, that contention also no legs to stand.
Section 27 of the Act deals with jurisdiction in continuation of Section 2(i) which defines Magistrate of the area is having jurisdiction.
Section 28 is the procedure which says save as otherwise provided in this Act, all proceedings under Sections 12, 18 to 23 and offences under Section 31 shall be governed by provisions of the Cr.P.C.Nothing in sub-section (i) shall prevent the Court for adopting its own procedure for disposal of an application Under Section (2) Section 23(2) of the Act.
It is clear from the wording of Section 28(i) that Section 31 is a penal sections defined as offence and Sections 12, 18 to 23 are defined as proceedings.
It is to say Sections 126 to 128 procedure also equally apply to Domestic Violence Act reliefs if there is no special provision or special procedure or specific rule made there under.
The law is very clear on this aspect of several constitutional Courts expressions.
No doubt, as per Section 6 of Cr.P.C.r/w Section 26 and Section 2(i) of the Act, High Court is also a criminal Court from the wording that; besides the High Court, other criminal Courts of five kinds are defined.
Section 482 is an inherent power which inheres on the very constitution of the High Court that is saved but for to say if there is any other specific provision either under the Code or any other law, Section 482 cannot be invoked as a matter of course, nor can be exercised by the Court by invoking it on its own as a matter of routine.
It is an inherent provision to meet the exceptional contingencies as defined in Section 482 Cr.P.C.of three kinds viz., to implement the orders of any Court or to prevent any abuse of process and or to meet the ends of justice.
From this background coming to Section 29 of the Act providing an appeal provision which reads that there shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is latter.
The wording of Section 29 of is the order.
Learned counsel for the petitioners in submitting about maintainability made an attempt to say referring to the expression of the Kerala High Court in Sulochana v.
Kuttappan that what Section 29 wording of the order from the use of definite article the as per English Grammer is one of the orders provided in the preceding sections.
Undisputedly, the same is very clear.
However, if one reads Section 28 which is a preceding section to Section 29 along with Section 26 of the Act for reliefs of proceedings under Sections 12, 18 to 23 and offences under Section 31 are governed by the Cr.P.C.It is specifically to say cognizance even not defined in the Cr.P.C., taking of cognizance is provided under Section 190 Cr.P.C.for any proceedings to mean like in numbering of the maintenance case under Section 125 Cr.P.C.There also, the requirement of application of judicial mind.
Once that judicial mind application is there, it is taking of cognisance.
It is only after taking of cognizance the numbering of the application arises and it is a post numbering stage and post cognizance stage issuing of summons arise.
Undisputedly, in all the cases after service of summons, the quash proceedings are filed.
It is to say at the post cognizance stage.
Now the crux is whether an appeal lies against taking of cognizance referred supra.
Undisputedly, more than three expressions of different Single Benches of this Court held, if not also by referring to Section 29 and also referring clause (f) of State of Haryana v.
Ch.Bhajan Lal , that there is a statutory and substantial, besides efficacious remedy available under Section 29 of the Act.
Thereby quash proceedings are not automatically sustainable.
It is important to note from one of the guidelines in Bhajan Lal (supra) that where there is a specific provision in the Code or the concerned Act, providing efficacious redress for grievance of the aggrieved party, quash proceedings are not maintainable under Section 482 Cr.P.C.to invoke.
From this proposition, needless to say, the expression relied upon of M/S.Pepsi Foods LTD.& Anr vs Special Judicial Magistrate & Ors , it was held that an accused can approach the High Court under Section 482 Cr.P.C.or Articles 226 or 227 of the Constitution of India.
Learned counsel for the petitioners by placing reliance on it want to impress the Court that when the constitutional remedies available under Articles 226, 227 of the Constitution of India or Section 482 Cr.P.C.equally irrespective of Section 29 of appeal remedy though statutory and efficacious, Section 482 Cr.P.C.proceedings are maintainable.
In fact that expression is by giving approval to the expression and the guidelines of Bhajan Lal (supra) and not even explaining much less dissenting to the guidelines.
Undisputedly, guidelines of Bhajan Lal (supra) still rules the field as law of land under Article 141 of the Constitution of India.
Learned counsel for the petitioners placed reliance on the expressions of this Court in P.Sugunamma v.
State of A.P., Markapuram Siva Rao v.
State of Andhra Pradesh and Aijaz Ali Qureshi v.
State of Andhra Pradesh .
Undisputedly, in all the three expressions Section 29 of the Act is not referred much less Sections 26, 28 and 29 r/w Section 2(i) of the Act or Section 190 and Sections 4 and 5 of Cr.P.C.No doubt, in one of the expressions of this Court in Kesari Kumar v.
State of Telangana in Crl.P.No.7289 of 2014 dated 16.02.2015 the Court almost came to the conclusion that in view of the other remedies available under law, the quash petitions under Section 482 Cr.P.C., are not automatically be invoked.
In fact for this conclusion referred the expressions of the Apex Court including Ashish Dixit v.
State of Uttar Pradesh and Inderjit Singh Grewal v.
State of Punjab; wherein Section 29 of the Act not referred while quashing proceedings on the grounds therein in the factual matrix with conclusion of an abuse of process.
Now coming back to Sections 26, 28 and 29 of the Act, even referring to Sulochana v.
Kuttappan (supra) the very expression says in para-12 that I have no hesitation to agree that the expression 'the order' must take within its sweep all orders under Sections 18 to 23 and I find no reason to exclude, going by language and semantics; an order passed under Section 23 from the sweep of the expression 'the order' in Section 29.
It is to say even from that expression as order used in Section 29 is not an exclusive but an inclusive expression.
It is with reference to it, even one reads Section 28, it speaks that all are proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and one reads the same with Section 190 Cr.P.C.; numbering the same is by applying judicial mind and that tantamounts to taking of cognizance.
This also for the reason Section 28 is preceded by Section 29.
In this regard cloud is cleared by the expression of the Apex Court way back in Dharangadhra Chemical Works v.
Dharangadhra Municipality particularly referring to expression in Kutner v.Phillips,[1891].2 Q.B.267 at 272.
Zaverbai Amaidas v.
The State of Bombay [1955].1 S.C.R.799, that not only in two legislations to prevail the subsequent one; even in one legislation among the provision in the order if any inconsistency or irreconcilability, the latter provision prevails over the earlier provision.
Once such is the case, though reading of Section 29 it also to be read Section 28(1) of all proceedings with reference to Section 26 of the procedure provided in the criminal procedure code with reference to Section 190 Cr.P.C.to say even the taking of cognizance is also within the sweep of the order as can be seen the expression of the Kerala High Court relied upon by one of the learned counsel.
Once such is the case, even taking of cognizance and numbering of D.V.C.is within the meaning of the order used in Section 29 of the Act and against which once there is an efficacious appeal remedy under Section 29 of the Act and from Bhajan Lal (supra) guidelines it is very clear that once there is an alternative and efficacious remedy, but for that, the proceedings under Section 482 Cr.P.C.are not sustainable.
Hence, the office objection holds good thereby all the applications are liable to be rejected.
Having regard to the above, while upholding the office object and at request of learned for the petitioneRs.the un-numbered petitions are disposed of with the following terMs.Needless to say if any appeal is filed by any of the petitioners herein, they can file for the period beyond one month with application invoking Section 14 of the Limitation Act before the learned Sessions Judge to entertain as it is of bonafide prosecution in this Court instead of proceeding by appeal before the Court of Sessions, within the sweep of Section 14 of the Limitation Act.
Further, if any application is filed under Rule 37 of Criminal Rules of Practice or under Section 126(2) or Section 205 to represent through special vakalat or through advocate or for one to represent others as the case may be, the learned Magistrate shall entertain, hear and pass appropriate orders granting the same with necessary conditions.
Accordingly, these criminal petitions(S.R.) are disposed of.
Miscellaneous petitions pending if any, shall stand closed.
_________________________ Dr.B.SIVA SANKARA RAO, J Date: 17-07-2015