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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
Gaddameedi Nagamani –Appellant
Vs.
The State of Telangana and Ors. – Respondent
Criminal Petition Nos. 22371 of 2015
Decided On: 17.07.2015
Criminal Law – Criminal Produce Code, 1973 – Section 482 – Protection of Women from Domestic Violence Act, 2005 – Sections (2)(i), 2(m) and 2(q) – Limitation Act – Section 14 – Sought for orders as to maintainability of quash petition – All these five matters listed for hearing on the office note for orders as to maintainability of quash petition under Section 482 Cr.P.C. in an application filed under the Protection of Women from Domestic Violence Act, 2005 (for short the Act) that was taken cognizance to file and numbered and learned Magistrate issued summons consequently, by impugning the same – Heard the learned counsel for the petitioners in the respective criminal petitions and the learned Public Prosecutors of Telangana and Andhra Pradesh States at length with reference to the relevant provisions and propositions and perused the material on record – Held, once such is the case, though reading of Section 29 it also to be read Section 28(1) of all proceedings with reference to Section 26 of the procedure provided in the criminal procedure code with reference to Section 190 Cr.P.C. to say even the taking of cognizance is also within the sweep of the order as can be seen the expression of the Kerala High Court relied upon by one of the learned counsel. Once such is the case, even taking of cognizance and numbering of D.V.C. is within the meaning of the order used in Section 29 of the Act and against which once there is an efficacious appeal remedy under Section 29 of the Act and from Bhajan Lal (supra) guidelines it is very clear that once there is an alternative and efficacious remedy, but for that, the proceedings under Section 482 Cr.P.C. are not sustainable. Hence, office objection holds good thereby all applications are liable to be rejected – Having regard to the above, while upholding office object and at request of learned for petitioners, the un-numbered petitions are disposed of with following terms – Needless to say if any appeal is filed by any of the petitioners herein, they can file for period beyond one month with application invoking Section 14 of Limitation Act before learned Sessions Judge to entertain as it is of bona fide prosecution in this Court instead of proceeding by appeal before the Court of Sessions, within the sweep of Section 14 of Limitation Act. Further, if any application is filed under Rule 37 of Criminal Rules of Practice or under Section 126(2) or Section 205 to represent through special vakalat or through advocate or for one to represent others as case may be,learned Magistrate shall entertain, hear and pass appropriate orders granting same with necessary conditions – Directions issued – Criminal petitions disposed of – (Paras 19,20 and 21)
B. Siva Sankara Rao, J.
1. All these five matters listed for hearing on the office note for orders as to maintainability of quash petition under Section 482 Cr.P.C. in an application filed under the Protection of Women from Domestic Violence Act, 2005 (for short the Act) that was taken cognizance to the file and numbered and the learned Magistrate issued summons consequently, by impugning the same.
2. Perused the office objection.
3. Heard the learned counsel for the petitioners in the respective criminal petitions and the learned Public Prosecutors of Telangana and Andhra Pradesh States at length with reference to the relevant provisions and propositions and perused the material on record.
4. As per Section (2)(i) of the Act, Magistrate means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;
5. As per Section 2(m) of the Act, prescribed means prescribed by rules made under this Act.
6. As per Section 2(q) of the Act, respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
7. The reliefs and procedure for obtaining orders or reliefs provided in Chapter-IV of the Act, of which Sections 12 to 29 are relevant. Before going to that, the Chapter-V miscellaneous relating to protection officers, penalty for breach of protection order by respondent and its cognizance defined in Section 32 are as follows:
Chapter-V-Section 32:
Cognizance and proof.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.
8. Among which Section 32(i) referred supra speaks of the offence provided by Section31 is a cognizable and non-bailable offence, notwithstanding anything contained in the Cr.P.C. (which mean including Schedule-II as Schedule-I deals with I.P.C. offences and Schedule II covered the offences under any other enactments). It is to say, Section 32 is worded with non-obstante clause. To understand the emphasis, before going to the scope of Sections 26 to 29 of the Act, it is essential to read Sections 4(2) and 5 of Cr.P.C. and also Section 190 Cr.P.C. Section 190 Cr.P.C. speaks of cognizance of offence by the Magistrate in three ways, viz., upon receiving a complaint of facts, upon a police report or upon information received from any person other than a police officer or upon his own knowledge.
9. Cognizance is not defined in the Code of Criminal Procedure. Victim is defined in 2(w)(a). Cognizance to mean application of judicial mind to the facts on hand. It is to say even taking on file of a case as can be seen from wording of Section 190 Cr.P.C. supra is taking of cognizance of the offence or the case as it may be of other matter covered by the Code.
10. Now coming to Sections 4 and 5 of Cr.P.C., Section 4(1) deals with offences under Indian Penal Code whereas Section 4(2) deals with other offences. Section 4(2) reads that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions(of the Code), but subject to any enactment for the time being in force regulating the matter or place of investigating, inquiring into, trying or otherwise dealing with such offence. Section 5 speaks saving clause that nothing contained in
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