IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S.KINAGI CRIMINAL RP NO.997 OF 2018 BETWEEN:
SMT. VANITHA VASU @ SMT. VANITHA VINAYAK WIFE OF VINAYAK CHELUVANTHAM AGED ABOUT 51 YEARS RESIDING AT No.13, FFI, VASISTHA DHAMA APT. LOTTEGOLLAHALLI, RMV II STAGE BENGALURU–560 094.
…PETITIONER (BY SRI. RAVI R., ADVOCATE) AND:
1. SRI. VINAYAK SON OF CHALUVANATH IYENGAR HINDU, AGED ABOUT 43 YEARS 2. CHELUVANTH IYANGAR AGED ABOUT 82 YEARS 3. BHARATHI IYENGAR WIFE OF CHELUVANTH IYANGAR AGED ABOUT 72 YEARS ABOVE 1 TO 3 ALL ARE RESIDING AT OLD No.11, NEW No.23 AKSHAYA KUTEER, 16TH CROSS MALLESWARAM BENGALURU–560 003.
... RESPONDENTS (BY SMT. JAYASHREE PRASAD, ADVOCATE) THIS CRIMINAL RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 09.05.2018 PASSED BY THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-53) AT BANGALORE IN CRL.A.NO.1163/2017 AND DIRECT THE LEARNED MAGISTRATE TO PROCEED WITH CRL.MISC.NO.88/2015 BEFORE MMTC-IV TO DECIDE THE APPLICATION U/S 12 R/W 18, 20 AND 22 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, FILED BY THE PETITIONER FOR VARIOUS RELIEFS ON ITS MERITS IN ACCORDANCE WITH LAW AND AWARD COSTS OF THESE PROCEEDINGS THIS CRIMINAL RP IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has come up before this Court being aggrieved by the order dated 9.5.2018 passed by the LII Additional City Civil and Sessions Judge, Bengaluru, in Crl.A.1163 of 2017 dt.9.5.18.
2. The petitioner-wife has filed a complaint under Section 12 read with Sections 18, 20 & 22 of the Protection of Women from Domestic Violence Act 2005 before the IV Metropolitan Magistrate Traffic Court at Bengaluru which came to be listed as Crl.Miscellaneous No.88 of 2015 wherein the learned Magistrate has ordered issuance of notice after entertaining the petition under the said Act. In the said proceedings, respondent No.1 herein-husband filed an application under Section 468 of Cr.P.C. questioning the jurisdiction of the Trial Court and also regarding the maintainability of the petition stating that the petition is not maintainable. The said application was contested by the petitioner by filing objection. The trial Court has considered the said application and objection but has not given any finding with regard to the maintainability and jurisdiction to maintain the petition. However, it has observed “in the present case, it is the little difficult point to decide whether the petition is maintainable or not without recording the evidence with regard to maintainability” and directed the petitioner to lead evidence to prove the maintainability of the petition. The trial Court dismissed the application filed by the respondents under Section 468 of Cr.P.C vide order dated 23.8.2016. The respondents being aggrieved by the order dt.23.8.16, preferred Crl.P.6527/2016 before this Court. This court after hearing the parties was pleased to allow the petition in part with observation :-
“4. With this observation the following order is passed:
The petition is partly allowed. The order passed by the IV MMTC dated 23.8.2016 IN Crl.Misc.No 88 of 2015 in rejecting the application filed under Section 468 of Cr.P.C. is hereby set aside. The said application is restored on the file of the learned Magistrate with a specific direction that the Magistrate has to confine the evidence recorded already and to be recorded insofar as the respondent is concerned only with regard to the maintainability of the petition. The trial Court first has to give its finding with regard to maintainability of the petition and its jurisdiction and thereafter, if the Court holds that the petition is maintainable, then proceed with the case on merits. It is incumbent upon the Court to pass appropriate orders under Section 468 of Cr.P.C filed by the petitioners before proceedings with the matter on merits. The trial Court is hereby directed to record the evidence with regard to maintainability of the petition, by providing opportunity to both the parties and pass orders on the application filed under Section 468 of Cr.P.C. within two months from the date of receipt of a copy of this orders.”
Thereafter, the trial Court has recorded the evidence on maintainability and has proceeded to pass an order on 12.8.2017 wherein the trial Court has observed in paragraph 5 as :
“On perusal of the available material on record and evidence adduced by the respective parties regarding maintainability of the petition, it is noticed that petitioner has averred instances of domestic violence on respondent. The said aspect requires detailed trial to conclude as to whether those acts amounts to domestic violence or not. This can only be done after holding full fledged trial of the above case. Hence, upon the opinion expressed by their lordship in Crl.P.6527/2016, the application under Section 468 of Cr.P.C. is kept alive till the full fledged trial is held by both the parties and upon perusal of the cause title it is clear that both the parties are resident of Bangalore City and hence this Court has jurisdiction to try this case.”
The respondents being aggrieved by the said order preferred Crl.A.1163 of 2017 before the LII Additional City Civil & Sessions Judge, Bengaluru which is registered as Crl.A.1163/2017. The learned Sessions Judge after hearing the matter was pleased to allow the appeal filed by the respondents and consequently dismissed the complaint filed by the petitioner. The petitioner being aggrieved by the order dt.9.5.2018 passed in Crl.A.1163/2017, has filed this petition.
3. Heard the learned counsel for the parties.
4. The contention of the petitioner is that this Court has directed the learned Magistrate to confine the evidence recorded already and to be recorded insofar as the respondent is concerned only with regard to the maintainability of the petition and it has to give a finding with regard to the maintainability of the petition and its jurisdiction. The learned Magistrate has to pass an order to consider regarding the maintainability of the petition only after full fledged trial. But the learned Sessions Judge has committed an error in dismissing the complaint filed by the petitioner.
5. Per contra, learned counsel appearing for the respondents has supported the impugned order and submitted that the Appellate Court after considering the material on record has rightly held that the complaint or petition filed by the petitioner is not maintainable and that the Appellate Court has rightly dismissed the complaint.
6. That, by perusing the order passed in Crl.P.6527 of 2016, it is clear that this Court has directed the learned Magistrate to confine the evidence recorded in regard to the maintainability of the petition is concerned. But the learned Magistrate has not given any finding with regard to the maintainability of the petition. On the contrary, he has deferred the same stating that full fledged trial is required and after full fledged trial, he would consider regarding the maintainability of the petition.
7. The gist of the order passed in the Criminal Petition No.6527/2016 is that this Court has directed the learned Magistrate to give a finding with regard to the maintainability of the petition and jurisdiction and if the Court holds that if the petition is maintainable, then proceed with the case on merits. But, the learned Magistrate seems to have not followed the directions issued by this Court. Further, the learned Sessions Judge has passed the impugned order after considering the records and provision of law and held that the complaint is not maintainable as it is barred by limitation and hence, the question of further proceeding with the matter by the Trial Court does not arise for consideration. The learned Sessions Judge has not considered the directions issued by this Court in the Criminal Petition and has erred in dismissing the complaint filed by the petitioner. The learned Sessions Judge could have remanded the matter to the Trial Court for reconsidering the matter in view of the directions issued in the above said criminal petition. Instead of remanding the matter, he has allowed the petition and dismissed the
8. Hence, the following :
ORDER i) The Criminal Revision Petition is allowed;
ii) The order dated 9.5.2018 passed by the learned Sessions Judge in Criminal Appeal No.1163 of 2017 and the order dated 23.8.2016 passed by the learned Magistrate in Criminal Miscellaneous No.88 of 2015 are set aside;
iii) Matter is remanded back to the trial Court to give a finding as per the directions issued in Crl.P.6527/2010. Parties are directed to appear before the learned Magistrate, Traffic Court-IV at Bengaluru on 12.11.2019.
SD/- JUDGE rs