2019 Supreme(Kar) 1681

IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
K.S. MUDAGAL, J.
Sayeeda Fakrunissa Begum W/o Late Abdul Jabbar – Petitioner
Versus
Asiya Parveen W/o Abdul Rehmaan – Respondent
Criminal Petition No. 200687 of 2018
Decided On : 31-07-2019

Headnote:

DV Act - Section 12 - Domestic Violence Act – Indian Penal Code - Section 498(A) – Criminal Procedure Code - Section 70(2) - Issuing non-bailable warrant – Quash of order - Whether material relied upon by accused is sound reasonable and indubitable material is of sterling and impeccable quality - Whether material relied upon by accused would rule out assertions contained in charges leveled against accused material is sufficient to reject and overrule factual assertions contained in complaint material is such as would persuade a reasonable person to dismiss and condemn factual basis of accusations as false - Whether material relied upon by accused has not been refuted by prosecution/complainant and/or material is such that it cannot be justifiably refuted by prosecution/complainant - Whether proceeding with trial would result in an abuse of process of Court and would not serve ends of justice - Whether matter is covered under aforesaid judgment - Purpose of convenience parties will be referred to henceforth by their ranks before trial Court - Marriage of first respondent with petitioner was solemnized at Hyderabad - Out of said wedlock couple have son born - Respondent No. 2 is mother and respondent Nos. 3 to 5 are siblings of first respondent - Petitioner alleged that at time of marriage on demand of respondents several household and valuable articles were given and marriage was performed incurring - She alleged that respondents subjected her to physical and mental abuse and thus sought aforesaid reliefs - Respondent Nos. 2 to 5 alone appeared before Magistrate - Magistrate had passed interim order against respondent No. 1 for payment of interim maintenance per month to petitioner and per month to minor son - Respondent No. 2 appeared before Magistrate and consented to take petitioner to shared household – Thereafter she did not appear before Court - Magistrate issued non-bailable warrant against respondent Nos. 2 to 5 - Respondent Nos. 2 to 5 filed application before Magistrate under Section 70(2) Criminal Procedure Code to recall non-bailable warrant issued against them - Trial Court rejected said application – Held, In fact procedure of seeking domestic incidents report referred to in proviso to Section 12 of DV Act relates to a final order to be passed under said Section - Per contra Section 23 of DV Act empowers Court to pass such interim orders as Magistrate deems just and proper - Section 23 of DV Act is not subject to Section 12 of DV Act - Therefore there is no merit in contention that proceedings amount to abuse of process of Court for non-compliance of Section 12 of DV Act or Rules 6, 9 and 12 of rules framed there under - Further respondents challenged proceedings in Criminal Miscellaneous and sought for quashing of same by filing Criminal Petition - Annexure-C goes to show that on hearing said petition was dismissed - Now this Court does not find any changed circumstance to consider quashing of proceedings again in this petition - Regarding personal appearance of parties relying upon judgment of Honble Supreme Court in case referred to supra it was contended that proceedings are civil in nature therefore Court cannot insist for personal appearance of respondents - Said case arose out of criminal proceedings under Section 498(A) IPC therefore said judgment is not applicable – Further judgment in case was later reviewed by Larger Bench of Honble Supreme Court in Social Action Forum for case referred to supra - Perusal of proceedings of DV Act and scheme of Act makes it clear that Act does not bar Court from seeking personal appearance of parties – Therefore there is no merit in contention that Court cannot insist for personal appearance of parties - So far as age of respondent No. 2 for appearance this Court in Criminal Petition granted liberty to her to file exemption application before trial Court but she did not appear and file application and only filed application to recall order issuing NBW - Records of this case show that respondent No. 2 executed in this case in Gulbarga but she contends that she cannot appear before trial Court due to her old age - That shows reluctance of respondents to appear before trial Court which cannot be appreciated - So far as legal position of rejection of application for recalling NBW learned counsel for respondents submits that respondents filed said application without appearing before trial Court and trial Court was forced to issue such order as respondents were prolonging proceedings - In case relied upon by learned counsel though it was held that Section 70(2) Criminal Procedure Code does not contemplate personal appearance of parties to seek recalling NBW ultimately in final order accused was directed to appear before trial Court and non-bailable warrant was recalled - Petition is partly allowed