CRM(M)/270/2022 of RUVAIT LONE Vs UNION TERRITORY OF J AND K AND ORS. (HOME DEPARTMENT) on 30 December 2022

JUDGEMENT

1. Through the medium of this petition, petitioner is seeking quashment of FIR No. 40/2022 dated 10.06.2022, registered under Section 31 of Protection of Women from domestic violence Act, 2005. FIR No. 40/2022 dated 10.06.2022, registered under Section 31 of Protection of Women from domestic violence Act, 2005.

2. The case set up by the petitioner is that the offence under which the FIR has been lodged is not a cognizable offence, as such, the Police Station concerned was not having the jurisdiction to lodge the FIR against the petitioner, as such, the registration of an FIR against the petitioner is the abuse of process of Court and law and has resulted in the serious miscarriage of justice. It is stated that the proviso of Section 31 relates to the breach of protection order and not a remedy to recover the arrears as such the FIR is registered against the petitioner is nothing but the abuse of process of law. It is further averred that the registration of FIR against the petitioner on the directions of the Court below prima facie discloses has been lodged is not a cognizable offence, as such, the Police Station concerned was not having the jurisdiction to lodge the FIR against the petitioner, as such, the registration of an FIR against the petitioner is the abuse of process of Court and law and has resulted in the serious miscarriage of justice. It is stated that the proviso of Section 31 relates to the breach of protection order and not a remedy to recover the arrears as such the FIR is registered against the petitioner is nothing but the abuse of process of law. It is further averred that the registration of FIR against the petitioner on the directions of the Court below prima facie discloses the miss use of provisions of domestic violence Act, 2005. It is further stated that the Police Station concerned has registered the FIR only on the basis of direction of the Court of Judge of Small Causes, Srinagar, which clearly has resulted in the abuse of law and misuse of the social welfare legislation.

3. Respondents have filed the status report, wherein they have stated that on 17.06.2022, the respondent Police Station received a Court order from the Hon’ble Court of Judge Small Causes, Srinagar, in which Court directed “there is no denial to the fact that the order of maintenance and Medical allowance is still intact and an amount of Rs. 12,000/- has been paid and there remains overdue of Rs. 66,000/- on account of maintenance and medical expenses. Recovery of this amount cannot be delayed in view of medical exigency of aggrieved person, therefore, SHO Police Station, Chanapora, is directed to recover an amount of Rs. 66,000/- from the respondent No. 1 and pay the same to the aggrieved person against proper receipt or deposit in the Court without any delay. In case the respondent No. 1 does not comply with direction passed by this Court then the SHO P/S Chanapora, is directed to lodge an FIR in terms of Section 31 D. V Act and submit compliance report. It is further stated that upon receipt of the direction of the Hon’ble Court, the petitioner namely Ruvait Ahmad Lone R/o Irm lane Budshahnagar issued a cheque bearing cheque No. 468583 dated 20.06.2022, for an amount of Rs. 33,000/- (fifty percent of the amount) and same was deposited in the Court of law and the petitioner requested that some time be given to him for deposition of remaining 50% amount, viz Rs.

33,000/-. It is further stated that after depositing the 50% of the amount, the Hon’ble Court ordered SHO P/S Chanapora, verbally at Court in the Court to register an FIR against the petitioner. It is submitted that on the verbal direction of the Hon’ble Court, case FIR No. 40/2022 under Section 31 Domestic Violence Act, 2005, was registered and investigation was taken up and the case is still under investigation.

4. Heard learned counsel for the parties, perused the record and consider the matter. the matter.

5. Counsel appearing for the petitioner in order to strengthen the case set up by the portioner has stated that the offence under which the FIR has been lodged is not a cognizable offence, as such, the Police Station concerned was not having the jurisdiction to lodge the FIR against the petitioner, as such, the registration of an FIR against the petitioner is the abuse of process of Court and law and has resulted in the serious miscarriage of justice. Counsel for the petitioner has submitted that proviso of Section 31 relates to the breach of protection order and not a remedy to recover the arrears as such the FIR is registered against the petitioner is nothing but the abuse of process of law. It is further averred that the registration of FIR against the petitioner on the directions of the Court below prima facie discloses the miss use of provisions of domestic violence Act, 2005. It is further stated that the Police Station concerned has registered the FIR only on the basis of direction of the Court of Judge of Small Causes, Srinagar, which clearly has resulted in the abuse of law and misuse of the social welfare legislation.

6. Domestic Violence Act, 2005 has been enacted to provide more effective protection to the rights of women. Section 12 of the Act gives right to aggrieved person to move an application before the Magistrate for grant of reliefs as mentioned therein. protection to the rights of women. Section 12 of the Act gives right to aggrieved person to move an application before the Magistrate for grant of reliefs as mentioned therein.

7. As can be seen from perusal of the file a complaint under Section 12 of the Act was filed by respondent No. 5, before the trial Court in which vide order dated 21.01.2022, petitioner was directed to pay Rs. 8,000/- per month as maintenance allowance besides medical expenses. This order was challenged in an appeal before the Principal Session Judge, Srinagar, but was upheld except residence, which was to be decided by the trial Court after hearing both parties. Both parties preferred separate applications. Thereafter one more application was preferred on 09.06.2022. On 10.06.2022, the trial Court directed SHO P/S Chanapora, to recover an amount of Rs. 66,000/- from the petitioner herein and pay it to the respondent No. 5 and in the event of failure of petitioner, FIR in terms of Section 31 of the Act be lodged. This seems to have been a pretext to lodge FIR impugned, and as a consequence whereof the instant petition. the Act was filed by respondent No. 5, before the trial Court in which vide order dated 21.01.2022, petitioner was directed to pay Rs. 8,000/- per month as maintenance allowance besides medical expenses. This order was challenged in an appeal before the Principal Session Judge, Srinagar, but was upheld except residence, which was to be decided by the trial Court after hearing both parties. Both parties preferred separate applications. Thereafter one more application was preferred on 09.06.2022. On 10.06.2022, the trial Court directed SHO P/S Chanapora, to recover an amount of Rs. 66,000/- from the petitioner herein and pay it to the respondent No. 5 and in the event of failure of petitioner, FIR in terms of Section 31 of the Act be lodged. This seems to have been a pretext to lodge FIR impugned, and as a consequence whereof the instant petition.

8. Section 31 of the Act, provides as under:-

8. Section 31 of the Act, provides as under:- “31. Penalty for breach of protection order by respondent.—(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.” breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

CRM(M) No.270/2022

CrlM No. 831/2022

9. Bare reading of Section 31 of the Act, provides that when there is a breach of an order passed under and in terms of the Act, the Magistrate may itself take the responsibility of getting the orders passed by it complied with and for that matter the defaulter can be punished with imprisonment for a term of one year or with fine of Rs. 20,000/- or with both. It is the Magistrate who can frame charges under Section 498A IPC or any other provision of IPC or Dowry Prohibition Act. breach of an order passed under and in terms of the Act, the Magistrate may itself take the responsibility of getting the orders passed by it complied with and for that matter the defaulter can be punished with imprisonment for a term of one year or with fine of Rs. 20,000/- or with both. It is the Magistrate who can frame charges under Section 498A IPC or any other provision of IPC or Dowry Prohibition Act.

10. The Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered scope and ambit of Section 482 Cr.P.C. and Article 226 of the Constitution of India in the background of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements, the Supreme Court made certain categories of cases by way of illustration, where the power under Section 482 Cr. P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which gives seven categories of cases where power can be exercised under Section 482 Cr. P.C. are reproduced as follows: scope and ambit of Section 482 Cr.P.C. and Article 226 of the Constitution of India in the background of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements, the Supreme Court made certain categories of cases by way of illustration, where the power under Section 482 Cr. P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which gives seven categories of cases where power can be exercised under Section 482 Cr. P.C. are reproduced as follows:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

11. In the above backdrop it may be appropriate to mention here that Section 482 of the Code of Criminal Procedure, preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. 482 of the Code of Criminal Procedure, preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice.

12. In the instant case, impugned order itself shows that FIR was to be lodged only after non-compliance of the orders of trial Court vis-à-vis payment of maintenance. Perusal of objections /status filed by official respondents reveals that upon receipt of the direction of the trial Court, the petitioner paid an amount of Rs. 33,000/-, but trial Court verbally directed SHO to register FIR impugned. only after non-compliance of the orders of trial Court vis-à-vis payment of maintenance. Perusal of objections /status filed by official respondents reveals that upon receipt of the direction of the trial Court, the petitioner paid an amount of Rs. 33,000/-, but trial Court verbally directed SHO to register FIR impugned.

CrlM No. 831/2022

13. It is pertinent to mention here that orders passed by the trial Court on the petition of respondent No. 5, were aiming at to provide maintenance to respondent No. 5. Once petitioner is put in custody and forced to face ramifications of impugned FIR, he has been put in quandary incapacitating him to discharge his obligation that he has towards his family or say his wife. Better it would have been for the trial Court to take other recourse for recovery as it would have provided succour to aggrieved person. In that view of the matter, the impugned FIR falls within the categories of (3) and (5) of Bhajan Lal case (supra) and as such, requires to be quashed; so is impugned order. the petition of respondent No. 5, were aiming at to provide maintenance to respondent No. 5. Once petitioner is put in custody and forced to face ramifications of impugned FIR, he has been put in quandary incapacitating him to discharge his obligation that he has towards his family or say his wife. Better it would have been for the trial Court to take other recourse for recovery as it would have provided succour to aggrieved person. In that view of the matter, the impugned FIR falls within the categories of (3) and (5) of Bhajan Lal case (supra) and as such, requires to be quashed; so is impugned order.

14. For the foregoing reasons, the instant petition is allowed and order dated 10.06.2022 passed by the Court of Judge Small Causes, Srinagar, to the extent of lodgment of FIR is set aside. FIR No. 40/2022 P/S Chanapora, or any proceeding initiated thereon, is also quashed. 10.06.2022 passed by the Court of Judge Small Causes, Srinagar, to the extent of lodgment of FIR is set aside. FIR No. 40/2022 P/S Chanapora, or any proceeding initiated thereon, is also quashed.

15. Allowed and disposed of as above.

16. Copy of this order be sent to Court below.

Srinagar30.12.2022.“M. Yasin Dar”

(VINOD CHATTERJI KOUL)

JUDGE

Whether the order is reportable: Yes/No.