Sabir N.S vs. Sajana Asseem
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUE AY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942 Crl.MC.No.3390 OF 2020(C) MC No.29/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA PETITIONER/ACCUSED: 1 SABIR N.S, AGED 28 YEARS, S/O. E. SUBAIR, NELLUKADAVIL KORANGATTUPARAMBU, MALIAKKAPADY, EDATHALA P.O., ALUVA, ERNAKULAM DISTRICT 683 561. 2 SUBAIR, AGED 59 YEARS, S/O. EBRAHIM, NELLUKADAVIL KORANGATTUPARAMBU, MALIAKKAPADY, EDATHALA P.O., ALUVA, ERNAKULAM DISTRICT 683 561. 3 SUBAIRATH, AGED 54 YEARS, W/O. E. SUBAIR, NELLUKADAVIL KORANGATTUPARAMBU, MALIAKKAPADY, EDATHALA P.O., ALUVA, ERNAKULAM DISTRICT 683 561. BY SABIR N.S(PARTY IN PERSON) RESPONDENTS/STATE AND DE FACTO COMPLAINANT: 1 SAJANA ASSEEM, AGED 28 YEARS, D/O. T.A. ASSEEM, THANDIRIKAL HOUSE, ANCHUPARAMBIL, MANJALI, MANNAM P.O., PARUR, ERNAKULAM DISTRICT 683 520. 2 STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, VALAPAD POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI 31. R1 BY ADV. SRI.P.A.ISMAIL KHAN SMT.PUSHPA VIJAYAN SR PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21- 08-2020, THE COURT ON 15-09-2020 PASSED THE FOLLOWING:
Crl.MC No.3390 of 2020 2 P.B.SURESH KUMAR, J. ------------------------------------------------- Criminal M.C. No.3390 of 2020 -------------------------------------------------------- Dated this the 15th day of September, 2020 J U D G M E N T The petitioners are the respondents in M.C.No.29 of 2020 on the files of the Court of the Judicial Magistrate of the First Class-I, Aluva instituted under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005(the Act). The said proceedings was instituted by the first respondent, the wife of the first petitioner. According to the petitioners, the entire allegations in the application filed before the court below, on the basis of which the proceedings were initiated against them, are false and do not make out a case of domestic violence. The petitioners, therefore, seek orders quashing the proceedings, invoking the power of this court under Section 482 of the Code of Criminal Procedure (the Code).
Heard the second petitioner who appeared in person.
In Vijayalekshmi Amma v. Bindu, 2010 (1) KLT 79, this Court held that a party against whom a proceedings is
Crl.MC No.3390 of 2020 3 initiated under Section 12 of the Act cannot approach this court for quashing the proceedings invoking the power of this Court under Section 482 of the Code and that the power of this Court under Section 482 can be exercised only in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of the process of the court or to secure the ends of justice, when cognizance is taken by the Magistrate for an offence under sub- section (1) of Section 31, or Section 33 of the Act. Paragraphs 17 to 19 of the said judgement read thus:
In an application filed under section 12 claiming reliefs either under section 18, 19, 20, 21 or 22, the Magistrate can pass an interim order under section 18 to 23. All these reliefs are in respect of the civil liability and not the criminal liability. If that be so, it is not for this court under section 482 of the Code of Criminal Procedure, to quash the proceedings invoking the extra-ordinary inherent powers provided under the Code, as such order is necessary neither to give effect to any order under the Code nor to prevent abuse of the process of any court nor to secure the ends of justice. An offence under sub section (1) of Section 31, or an offence under section 33 taken cognizance by the Magistrate or an order passed by the Magistrate directing the respondent to execute a bond as provided under sub section 3 of Section 19, which by the mandate under sub section 5 that such order is to be treated as an order under Chapter VIII of Code of Criminal Procedure, stand on different footing. They are truly criminal proceedings. Except in respect of such proceedings it is not for the High
Crl.MC No.3390 of 2020 4 Court to exercise the extraordinary inherent juri iction to quash the proceedings pending before the Magistrate.
A person to whom notice was issued by the Magistrate in a petition filed under section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable either on the ground that the person who filed the application is not an aggrieved person as defined under section 2(a) or the application is not filed for an aggrieved person. He is also entitled to contend that he is not a respondent, as defined under section 2(q) of the Act. He is also entitled to contend that there is no domestic violence as defined under section 2(g) or the reliefs sought for are not the reliefs provided under the Act. In all such cases, it is not for this court to consider the question, when it could legitimately be raised and decided before the Magistrate. So long as the respondent is not an accused in a proceeding initiated under the Act and pending before the Magistrate and he is not obliged to apply for bail in respect of such proceedings and even his personal presence is not mandatory for hearing and disposing a petition under section 12, it is not for this court to consider the question whether the petitioner before the Magistrate is an aggrieved person as defined under section 2(a) or the respondent is a respondent as defined under clause (q) of Section 2 or the household is a shared household as defined under clause (s) or whether there is any domestic relationship between the parties or whether the reliefs sought for in the petition could be granted. These are matters which are to be considered by the Magistrate, before granting relief in the petition filed under section 12, either under section 18 or 19 or 20 or 21 or 22 or 23. 19. Learned counsel appearing for the petitioner
Crl.MC No.3390 of 2020 5 pointed out that in various decisions of this court and the other High Courts and Apex Court, proceedings initiated under section 12 of the Act were quashed invoking the powers under section 482 of Code of Criminal Procedure and in such circumstance, it cannot be held that inherent powers under section 482 of the Code of Criminal Procedure is not to be exercised. In none of those decisions, the question was addressed as stated above and in fact in none of those decisions, question whether the inherent juri iction under section 482 of Code of Criminal Procedure is to be invoked to quash a proceeding initiated under the Act which is enacted to provide a remedy under the civil law was not considered. In such circumstances, for the reason that proceeding under the Act was quashed invoking the powers under section 482 of the Code of Criminal Procedure it cannot be said that the powers under section 482 is to be invoked in all cases. I am of the firm view that a party against whom proceedings were initiated by the Magistrate under section 12, on a petition filed under section 12(1) of the Act seeking relief under section 18 to 23, has adequate remedy before the Magistrate, it is not for the High Court to exercise the extraordinary inherent powers and quash the proceedings. Section 482 is to be invoked in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of process of any court or to secure the ends of justice, when cognizance was taken by the Magistrate for an offence under sub section (1) of Section 31 or Section 33 of the Act. In all other cases, the affected party could raise the question and seek an order from the Magistrate including the maintainability of the proceedings and if an order is passed against him, he is at liberty to file an appeal as provided under section 29 of the Act. If that be so, it is not for this court to invoke the extraordinary
Crl.MC No.3390 of 2020 6 juri iction under section 482 of the Code of Criminal Procedure, to quash a proceeding initiated under section 12 (1) of the Act. As evident from the extracted paragraphs of the judgement, this Court has held in the said case that a person to whom notice is issued by the Magistrate in an application filed under Section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable against him on the ground either that the person who filed the application is not an ‘aggrieved person’ as defined in Section 2(a) of the Act, or that he would not fall within the definition of the ‘respondent’ in Section 2(q) of the Act, or that the allegations do not make out a case of ‘domestic violence’ as defined in Section 2(g) of the Act, or that the reliefs sought are not reliefs provided for in the Act. It was also held by this Court in that case that such contentions as regards the maintainability of the application shall be decided by the Magistrate. It was further held by this Court that so long as the respondent is not an accused in a proceedings initiated under the Act, he is not even obliged to apply for bail in respect of such proceedings and his personal presence is not mandatory for hearing and disposing of an application under Section 12. 4. In the light of the decision of this Court in
Crl.MC No.3390 of 2020 7 Vijayalekshmi, according to me, the Criminal M.C. is not maintainable and the same is, therefore, disposed of without prejudice to the right of the petitioners to approach the Magistrate for the relief as provided for in Vijayalekshmi. If the petitioners approach the Magistrate as permitted, the court below shall consider their request, in the light of the decision of this court in Vijayalekshmi. P.B.SURESH KUMAR, JUDGE. YKB
Crl.MC No.3390 of 2020 8 APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE 1 CERTIFIED COPY OF THE COMPLAINT OF M.C. NO. 29 OF 2020 PENDING BEFORE THE HONBLE JUDL. FIRST CLASS MAGISTRATE COURT 1 ALUVA. ANNEXURE 2OF THE INTERIM ORDER DATED 11.06.2020 THE HONBLE JUDL. FIRST CLASS MAGISTRATE COURT 1. ALUVA. ANNEXURE 3OF THE MEDICAL CERTIFICATE ISSUED TO THE 1ST RESPONDENT BY DR. MUKUNDAN DATED. ANNEXURE 4OF THE CERTIFICATE REGARDING THE TREATMENT OF THE RESPONDENT FOR HER EYE SIGHT. ANNEXURE 5OF THE STATEMENT OF ACCOUNT OF THE 1ST RESPONDENT WITH FEDERAL BANK LTD., INFOPARK BRANCH. ANNEXURE 6OF THE FIR IN CONNECTION WITH THE SUICIDE OF THE SISTER OF THE MOTHER OF THE 1ST RESPONDENT. ANNEXURE 7OF THE STATEMENT OF THE GRAND FATHER OF THE 1ST RESPONDENT IN CONNECTION WITH THE SUICIDE OF HIS DAUGHTER. ANNEXURE 8OF THE PRIVATE COMPLAINT FIELD BEFORE THE HONBLE JUDL. FIRST CLASS MAGISTRATE COURT 1 ALUVA. ANNEXURE 9OF THE CALL REGISTER OF PHONE NO. 8075028081 TO 8075963767 AND 85929335220 TILL 1 04.2020. ANNEXURE 10OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT SUBMITTED BY
Crl.MC No.3390 of 2020 9 THE 2ND PETITIONER DATED 01.07.2020 TO THE GST DEPUTY COMMISSIONER (ASSESSMENT), THRISSUR ANNEXURE 11OF THE REPLY LETTER ISSUED BY THE GST DEPUTY COMMISSIONER (ASSESSMENT), THRISSUR DATED 24.07.2020 TO THE 2ND PETITIONER RESPONDENT/S EXHIBITS: NIL //// PA TO JUDGE
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