1. Heard learned advocate for the parties. The applicants, who have been respondents and opponents in Criminal Misc. Application No.105 of 2011 have approached this Court by way of this application under Article-226 and 227 of Constitution of India with following prayers.
(A) admit this petition;
(B) issue appropriate Writ, order or direction quashing and setting aside the order passed by the learned JMFC below Exh.13 in Criminal Misc. Application No.105/2011 dated 8/5/2012 and be pleased to quash and set aside the order passed by the learned 5th Adhoc Addl. Sessions Judge, Junagadh dated 21/3/2013 in Criminal Appeal No.40 of 2012 and further be pleased to hold that considering the date of filing of the application/complaint/proceedings under the provisions of the Protection of Women from Domestic Violence Act, 2005 the same would not be maintainable as the same was preferred beyond the period of limitation as per the law laid down by the Hon ble Court;
(C) pending admission and final disposal of this petition, be pleased to grant stay of further proceedings in Criminal Misc. Application No.105/2011 which has remained pending before the learned JMFC, Mangrol;
(D) pass such orders as thought fit in the interest of justice.
In short what is under challenge is order dated 21st March, 2013 passed by learned Sessions Court in Criminal Appeal No.40 of 2012, whereby the learned Sessions Judge, dismissed the appeal, which was preferred by the present applicants, challenging the order dated 8th May, 2012, whereunder the concerned magisterial Court had rejected the application made under Exh.13 for dropping the proceedings filed under Protection of Women from Domestic Violence Act, 2005 on ground of it being time barred.
2. Facts in brief leading to filing this application as could be gathered from the memo of the application, deserves to be set-out as under :-
3. The respondent no.2 and the son of applicant nos.1 and 2 married on 7th May, 2009 and an unfortunate act accident occurred on 9th July, 2009, wherein the applicant nos.1 and 2 s son died. Thereafter, the respondent no.2 preferred an application under Section-498 A, which came to be settled and the settlement was arrived at between the parties on 7th September, 2009. The respondent no.2 moved the Court under the provision of Protection of Women from Domestic Violence Act, 2005 for various reliefs. This application came to be registered as Criminal Misc. Application No.105 of 2011. In this application, Exh.13 application came to be filed on behalf of the applicants for dropping the proceedings mainly on the ground of the same being time barred. The learned Magistrate after hearing the counsel for the parties came to the conclusion that the proceedings need not be dropped on account of the same being time barred and rejected the application vide order dated 8th May, 2012. The said order was assailed in appeal being Criminal Appeal No.40 of 2012 before the learned Sessions Judge, wherein also the learned Sessions Judge concurring with the findings of the magistrate, rejected the appeal on the ground that the entire issues and proceedings are at large before the concerned Court and therefore, the appeal need not be entertained and has rejected the appeal vide order dated 21st March, 2013. Being aggrieved and dissatisfied with this, the present applicants preferred this application as stated hereinabove under Article-226 and 227 of The Constitution of India.
4. Learned advocate for the applicants contended that in view of the provision of Protection of Women from Domestic Violence Act, 2005 and the facts of case ought to have been considered by the concerned Courts to appreciate that the domestic violence proceedings were time barred and therefore, the same could not have been proceeded with and they are required to be dropped.
5. Learned advocate for the applicants contended that the allegations made in the application claiming perpetration of domestic violence are baseless as the similar allegations, which were lodged in the complaint filed under Section-498 A was compromised and the compromise was arrived at on 7th September, 2009. In view thereof, the domestic violence proceedings are nothing but abuse of process of law.
6. Learned advocate for the applicants has invited this Court s attention to the page no.22 A in the compilation of the application and submitted that this is a statement of the respondent no.2 - wife, which was recorded on 26th August, 2009 on aftermath of demise of the husband on 9th July, 2009, wherein also the wife did not complain about any harassment and/or animosity between the in-laws and wife, therefore, even this statement would support the case of the applicants for dropping of the proceedings of domestic violence.
7. Learned advocate for the applicants relying upon the decision of the Apex Court in case of Inderjit Singh Grewal V/s. State of Punjab and Anr in Criminal Appeal No.1635 of 2011 decided on 23rd August, 2011, as well as the decision of Bombay High Court in case of Sejal Dharmesh Ved V/s. State of Maharashtra & Ors. in Criminal Application No.160 of 2011 decided on 7th March, 2013, contended that the Protection of Women from Domestic Violence Act, 2005 as is also governed by the Code of Criminal Procedure. The limitation provided thereunder would govern the proceedings under the Protection of Women from Domestic Violence Act, 2005 also and the limitation aspect therefore, assumes importance so far as the proceedings are concerned.
8. The Court is of the considered view that this application is required to be dismissed for following reasons.
i). The fact remains to be noted that the question in respect of Protection of Women from Domestic Violence Act, 2005 being an act essentially for redressal of the grievances of a woman claiming being afflicted on account of perpetration of domestic violence at the hand of those, who are having domestic relationship or sharing the household at a given point of time needs to be borne in mind while examining the issues and points raised at the bar. This Court is of the considered view that there exists no provision under which the application, which could be said to be an application for quashing proceedings or discharge, came to be filed being application Exh.13. The counsel for the applicants could not point-out any provision, which could be said to be akin to the provision under which discharge application could be made i.e. 239 of Cr.P.C. However, he submitted that in the larger interest, it was always open to the applicants to approach the Court for seeking dropping of proceedings as the case is ex-facie time barred. The Court is unable to accept the submission, as the matter whether it is time barred or not is a matter within the realm of evidence as the question of matter being time barred would be a matter to be established after leading evidence qua it being time barred or otherwise. It is required to be noted that the applicants have chosen to put-up magisterial Court an application Exh.13 right at the inception before leading the evidence before the Court and therefore, the Court i.e. the Court of learned Magistrate as well as learned Sessions Judge were absolutely just and right in rejecting the applications. Moreover, it is required to be noticed that the prayers under the domestic violence act also would have bearing upon the factum and contention of proceedings being time barred. The concept of continuous offence is also not to be overlooked by any Court. Collectively if all these factors are taken into consideration then, this Court is of the considered view that the application Exh.13 was not the correct stage to seek any decision without leading any evidence to indicate that the proceedings were time barred. The decisions cited at bar of Supreme Court as well as Bombay High Court are therefore, of no avail to the facts and submissions in the present case as they are distinctly different.
ii). The Court is of the considered view that the aspect of limitation if one reads closely, the concerned section i.e. Section-468 is presupposing the factum of cognizance of offence and in the instant case, if one takes a close look at the provision of Protection of Women from Domestic Violence Act, 2005, then one would safely conclude that the act provides for remedial measures to be enforced by the magistrate for redressal of grievances of the woman, who has been afflicted on account of domestic violence made to her and in case of any offence or disobedience, which could be classified an offence under the act, then in my view the factum of cognizance and/or action would ripe. Therefore, this issue also needs to be born in mind while considering the arguments and submissions qua the proceedings being time barred.
iii). This Court is of the considered view that the applicants have failed in indicating in any manner that how and in what manner it cannot be said that the violation is not continuous one as the violation is to be perceived from the plight, status and other incidental circumstances of the complainant and the respondent opponent.
When there is no evidence to that effect, the Court could not have been approached straight away for broad fact of mere filing of the complaint. Moreover, it is required to be noted that the Protection of Women from Domestic Violence Act, 2005 is providing for other reliefs also in respect of residential accommodation or alternative accommodation and the reliefs are capable of being claimed from even the relations of the husband i.e. parents in an appropriate manner and in an appropriate case, therefore, when all these issues are yet to be threshed-out, the nibbing of proceedings in bud would be rather counter productive to the end of justice.
9. Hence, this application being bereft of merits, deserves rejection and is accordingly rejected. Notice discharge.
10. In view of the order passed in Special Criminal Application No.1263 of 2013, no order in Criminal Misc. Application No.12274 of 2013.
The office is directed to place copy of this order in each matter.
(S.R.BRAHMBHATT, J.) Rathod...
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