YOGESH ANANTRAI BHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners herein are original accused, whereas respondent no. 1 is State and respondent no. 2 is original complainant and wife of petitioner no. 2. The petitioner nos. 1 and 3 are father -in -law and mother -in -law respectively of the complainant wife, whereas petitioner nos. 4 and 5 are brother -in -law of the complainant and and his wife. The respondent no. 2 ­ complainant has filed a complaint under section 12 of the Protection of Women From Domestic Violence Act, 2005 [hereinafter referred to as 'the DV Act'] before the Chief Judicial Magistrate of Navsari at Navsari on 20/2/2013. Initially the Court has issued notice to the petitioners being respondents -accused in such complaint being Domestic Violence Application No. 106/2013, but ultimately such complaint was dismissed by an order dated 22/4/2015. While rejecting such complaint, the trial Court has allowed an application at exh. 8 preferred by the present petitioners contending that when the complainant is admitting that she has left their house on 17/6/2007 and when the complaint is filed in the year 2013, it is barred by limitation as provided under section 468 of the Criminal Procedure Code [hereinafter referred to as 'the Code']. Therefore, relying upon the decision in the case of Inderjit Singh Grewal v. State of Punjab reported in [2011] 12 SCC 588, it is submitted that the Court should decide such issue of limitation as a preliminary issue so as to dismiss the complaint. While dismissing the complaint by allowing application at exh. 8, the trial Court has observed that when the Hon'ble Supreme Court has in the case of Inderjit Singh Grewal [supra] dismissed the complaint observing that it is filed after a period of one year, in the present case also when complaint is filed in the year 2013 for the alleged offences that may be committed before the year 2007, considering that such complaint is beyond the period of limitation and thereby dismissed the complaint. The order of dismissing complaint is cryptic in nature and does not disclose the relevant facts or proper discussion on the subject except the disclosure that the decision is taken pursuant to judgment in the case of Inderjit Singh Grewal [supra].

(2.) When such judgment was challenged by the complainant wife in Criminal Appeal No. 43/2015, the Sessions Judge of Navsari, has by his impugned judgment dated 11/9/2015, while allowing the appeal, quashed and set aside the order dated 22/4/2015 below exhs. 1 and 8 in Domestic Violence Application No. 106/2013 passed by the trial Court and ordered to restore the complaint and to decide it in accordance with law. Such order is under challenge in this revision application. Therefore, though there are two different decisions and thereby though revision is to be decided on its own merits, the fact remains that practically impugned orders are interlocutory orders and though it is not deciding the fate of either of party i.e. complainant or petitioners -accused under the DV Act finally, so far as impugned order of appeal is concerned, when complaint is restored to its file for deciding it in accordance with law, practically such order cannot be interfered with in revisional jurisdiction, unless and until there is absolute irregularity or illegality on face of the record and proceedings in which impugned orders are passed. For the purpose, if we scrutinize the impugned judgment of Sessions Court as an appellate Court, it transpires that while deciding the appeal, the Sessions Court has considered rival submissions and discussed the relevant issues raised before it and determined the appeal after framing relevant issues and answering them with detailed discussion and, therefore, prima -facie there is no irregularity or illegality in such proceedings so as to interfere with in revisional jurisdiction. The Sessions Court has considered that when application under section 12 of DV Act is preferred, practically amongst all other issue and relief that is relevant in such application, the penal provision is only in one provision viz. Section 31 of the DV Act, wherein there is provision for imprisonment. Whereas in rest of the enabling sections, there is no provision for punishment in the form of imprisonment and, therefore, though provisions of the Code are applicable to the proceedings under the DV Act, the provision regarding limitation to file complaint can be made applicable to the extent of penal provision and not for the other provisions which are practically related to remedies because of disturbance in personal relationship between the parties. Thereby, practically provisions under the DV Act are to resolve the personal dispute between the parties and, therefore, practically it is a continuous issue till parties are in relation and thereby there cannot be a restriction in the form of limitation to initiate or agitate particular issue in accordance with law before the Court of law, more particularly when entire enactment is for the benefits of deserted women and thereby even the title of the DV Act is specific containing that it is for the protection of women from domestic violence. The relevant section of the DV Act regarding procedure to be followed is section 28, which provides that save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offence under section 31 shall be governed by the provisions of the Code. Sub -section [2] of section 28, however, reads as under :

(3.) In view of above discussion, if we scrutinize the different provisions of different sections under which some reliefs can be claimed, it becomes clear that as per section 12 of the Act, an aggrieved person is permitted to present an application to the Magistrate seeking one or more reliefs under this Act and the Magistrate shall take into consideration any domestic incident reported and received by him from the Protection Officer also. Further provision of section 12 deals with jurisdiction of the Court in passing appropriate orders for compensation, etc. whereas sub -section [3] makes it clear that every application under sub -section [1] is to be filed in a prescribed form. So practically section 12 is enabling provision to file an application, whereas sections 18 to 22 are providing for rights of the aggrieved person to seek different reliefs like protection, residence, monetary relief, custody of minor and compensation. For all such reliefs, when provisions of the Code are to be followed, then practically there is no limitation prescribed under the Code for any of such reliefs viz. protection, residence, monetary relief, custody of minor and compensation. However, when section 28 says that procedure is to be followed as per the provisions of the Criminal Procedure Code, then it amounts to dealing with an application under section 12 as an application for all such orders and nothing more than that, more particularly when section 468 of the Code is not providing limitation for any such proceedings either under the Code itself where provision for maintenance is there under section 125, if we peruse the provision of section 468 of the Code, which specifically talks about bar to take cognizance after lapse of the period of limitation. Therefore, it is quite clear and certain that cognizance of offence is to be taken and thereby when there is no incident of commission of any offence while applying under section 12 for any of the orders under sections 18 to 22 which are referred hereinabove, since there are no offences, there is no reason for taking cognizance and, therefore, there is no reason to rely upon the provisions of section 468 of the Code in case of an application under section 12 of the DV Act. To be more precise, if we peruse the provisions of section 468, then also it becomes clear that the period of limitation is referred with the period of punishment i.e. limitation would be six months, if the offence punishable with fine only; one year for the offence punishable with imprisonment for a term not exceeding one year and three years for the offence punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, when penal provision is only under section 31 of the DV Act, the provisions of section 468 of the Code would be applicable only when there is an application under section 31 of the DV Act and not otherwise. It is clear position that section 31 of the DV Act provides for imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.20,000/ - or with both for breach of protection order or of an interim protection order by the respondent and, therefore, limitation would be applicable only after breach of an order in an application under section 12 and, therefore, such limitation cannot be applicable at the stage of an application under section 12 for reliefs under sections 18 to 22. Thereby, it is certain that if there is a breach of an order in an application under section 12 or any of the reliefs under sections 18 to 22 then and then only the application under section 31 is to be filed within one year from the date of such breach and not thereafter, and thereby it cannot be said that an applications under section 12 for reliefs under sections 18 to 22 are also required to be filed within a period of 12 months because in that case, when there is no penal provision, there is no reason to consider limitation at all.