IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4563 OF 2014 BETWEEN:
MRS SUSHMA RATTAN @ AYESHA AGED ABOUT 33 (NOW 37) YEARS, FORMER WIFE OF V.M. JAVEED, DAUGHTER OF D.R. RATTAN, RESIDING AT NO.62, LAKESHORE GARDEN, THINDLU VIDYARANYAPURA, BANGALORE-560 097.
(BY SRI: H MANJUNATH, ADVOCATE) AND:
MR V. M JAVEED AGED ABOUT 35 (NOW 40) YEARS, SON OF V.M.BARKATULLA, PREVIOUSLY RESIDING AT # 28, 2ND FLOOR, “VIJAY RESIDENCY”, 3RD MAIN, CHINNANNA LAYOUT, BANGALORE-560 030, AND PRESENTLY RESIDING AT # 202, 2ND FLOOR, DOVE’S NEST, ... PETITIONER VIVIANI ROAD, RICHARDS TOWN, BANGALORE-560 005.
(BY SMT: BHARATI PATIL, ADVOCATE FOR SRI: M.G.S. KAMAL, ADVOCATE) ... RESPONDENT THIS CRL.P IS FILED U/S. 482 CR.P.C PRAYING TO QUASH THE ORDER DATED:17.1.12 PASSED IN THE SAME AS AT ANNEXURE-A, BE FURTHER PLEASED TO RESTORE CRL.MISC.NO.37/11 TO THE FILE OF THE III MMTC, BANGALORE, TO BE HEARD AND DISPOSED OF ON MERITS; AWARD TO THE PETR. THE COSTS OF THESE PROCEEDINGS.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner is aggrieved by the order dated 17.01.2012, whereby the learned Magistrate has dismissed the petition filed by the petitioner herein for non-prosecution in Crl.Misc.No.37/2011.
2. The petitioner herein filed an application under section 28 of the Protection of Women from Domestic Violence Act, 2005(for short ‘D.V. Act’) for various reliefs. The said petition was posted for cross-examination of the respondent (RW-1). At that stage, there was a proposal of settlement and on account of the settlement, neither the petitioner nor the respondent appeared before the Court, as a result, the learned Magistrate, by the impugned order, dismissed the petition for non- prosecution. The application filed by the petitioner under Section 28(2) r/w Section 25(2) of D.V. Act for setting-aside the said order also has been dismissed for the reason that the learned Magistrate has no inherent power to review its own order.
3. I have perused the order-sheet maintained by the learned Magistrate in Crl.Misc.No.37/2011, which discloses that the petitioner has been diligently pursuing the petition and was present on almost every date of hearing, except the last few days of hearing. The order-sheet indicates that on the date of dismissal of the petition and on the previous dates, the matter was being adjourned for reporting settlement and apparently for that reason, the petitioner and the respondent appears to have been absent. Under the said circumstances, without looking into the reason for non-appearance of the parties, the learned Magistrate ought not to have dismissed the complaint. Moreover, since the matter was set down for cross-examination of RW.1, on account of the absence of the respondent, the trial court ought to have discharged the witness and posted the matter for arguments or for further evidence of the respondent rather than straightaway dismissing the petition for non-prosecution, which in my view is not proper. The very fact that the petitioner has invoked the jurisdiction of the D.V. Act, it was all the more necessary for the learned Magistrate to afford full opportunity to the petitioner to ventilate her grievance. Hence, in the interest of justice, the impugned order is liable to be set-aside.
Accordingly, the petition is allowed. The impugned order dated 17.01.2012 passed by the III Metropolitan Magistrate Traffic Court, Bengaluru in Crl.Misc.No.37/2011 is set-aside. The petition is restored to file. As the matter is pending since 2011, both the parties shall appear before the learned Magistrate on 16.02.2019 without any further notice. The learned Magistrate shall take up the petition on day-to-day basis and shall dispose of the petition as expeditiously as possible.
In view of disposal of the main matter, I.A.No.1/2017 for early hearing does not survive for consideration. Accordingly, it is dismissed.
Sd/- JUDGE *mn/-