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2018 Supreme(Bom) 1306
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARATI H.DANGRE, J
Meera Somil Lodaya @ Meera Chandrakant Thakkar - Appellant
Versus
Somil Hirji Lodaya and ors - Respondents
CRIMINAL REVISION APPLICATION NO.221 to 223 OF 2018
Decided on : 07-09-2018
Advocate Appeared:
For the Appellant : Mr. Rajan V. Thakkar, Adv.
For the Respondent: Mr.S.P. Kadam I/b Mr. Omkar Gopal Nagwekar, Ms.P.P. Shinde, Adv
Headnote:
Criminal Procedure Code, 1973 - Section 401, 156(3) - Domestic Violence Act - Section 31, 32 and Rule 15 - Applicant-wife in whose favour certain interim orders were passed alleges disobedience of said orders - She moved three applications on three different dates which were exhibited as Exhibit 26, Exhibit-28 and Exhibit-35 before Metropolitan Magistrate - Relief prayed is all three applications was for initiating appropriate action for noncompliance of interim orders which were granted by Magistrate - In said applications, she alleged that inspite of an order granting protection, same was not complied with, resultantly, she prayed for action against spondents for disobedience of order - Learned Magistrate proceeded to deal with said three Exhibits and took a note of fact that separate applications have been moved on different occasions under different heads and several prayers were made in said application - Exhibit 26 which is filed for protection and applicant had reiterated how she came to be dispossessed from said flat - Exhibit 28 is also a similar application where prayer is made for initiating contempt action against respondent no.2 - Application-Exhibit no.35 was moved for taking cognizance of offences under Section 156(3) Code of Criminal Procedure - Applicant was constrained to approach Sessions Court by filing an appeal - Appellate Court considered provision of Section 31 and Rule 15 of Domestic Violence Act - Court observed that proper course is to take cognizance of offences in accordance with provisions of Chapter XXI of Code of Criminal Procedure and try them summarily – Held, Court have carefully perused Revision Applications along with its annexures and also compilation of documents tendered on record by applicant which includes three complaints which have been preferred to Magistrate and also the copy of written arguments tendered in Appeal – Court have also heard submissions advanced on behalf of respective parties - Stand taken by Magistrate and concurred by Addl. Sessions Judge cannot be approved of in wake of object with which Act of 2005 has been enacted and purpose for which Magistrate is clothed with the powers under Section 31 and 32 of said Enactment - If an enactment contains a provision and authorizes particular authority to exercise its power, in order to grant protection to destitute woman who has been pivotal force of entire Enactment of 2005, and being referred to as “aggrieved person”, then power which is vested in particular authority, must be exercised for advancement of purpose for which it was conferred by Statute – Magistrate has refused to discharge responsibility and also failed to exercise his power merely on pretext that prayer made in application was to initiate proceedings under contempt - In nutshell, what was sought by applicant wife was an action for breach of interim orders and Magistrate has clearly refused same by merely observing that when prayer made was seeking invocation of contempt jurisdiction and since magistrate was not vested with power to punish for contempt, he refused to grant relief - Learned Appellate Court after going through provisions in Chapter V of the Domestic Violence Act, has reiterated findings of Magistrate, which in my considered opinion, amounts to traversity of justice and defeating provisions of Domestic Violence Act - Impugned order passed by Magistrate at Exhibit-B and appellate order passed by Addl. Sessions Judge at Exhibit-A are quashed and set aside - Backdrop of peculiar facts, said application filed by applicant before Magistrate at Exhibits 26, 28 and 35 should be treated by Magistrate as a complaint under Section 31 and he is directed to proceed in terms of Section 31 and 32 of Domestic Violence, Act, 2005 is directed to follow procedure prescribed in Chapter V of Domestic Violence Act 2005 along with Rule 15 of Domestic Violence Rules 2006 – Application Disposed of.
The three Revision Applications are filed by the wife under Section 401 of the Code of Criminal Procedure. The applicant wife is aggrieved by the order passed by the Sessions Court at Mumbai in Criminal Appeal No.880 of 2015 arising out of the order passed by the Metropolitan Magistrate, 73rd Court, Vikhroli, Mumbai. The applicant-wife in whose favour certain interim orders were passed alleges disobedience of the said orders. She moved three applications on three different dates which were exhibited as Exhibit 26, Exhibit-28 and Exhibit-35 before the Metropolitan Magistrate, Vikhroli. The relief prayed is all the three applications was for initiating appropriate action for noncompliance of the interim orders which were granted by the Magistrate on 17th September 2013 and 12th January 2014. In the said applications, she alleged that inspite of an order granting protection, the same was not complied with, resultantly, she prayed for action against the respondents for disobedience of the order.
2. The learned Magistrate proceeded to deal with the said three Exhibits and took a note of the fact that separate applications have been moved on different occasions under different heads and several prayers were made in the said application. It is mentioned that Exhibit 26 which is filed on 4th December, 2013 is for protection and applicant had reiterated how she came to be dispossessed from the said flat. Exhibit 28 is also a similar application where the prayer is made for initiating contempt action against the respondent no.2. Application-Exhibit no.35 was moved on 11th August 2014 for taking cognizance of offences under Section 156(3) of the Code of Criminal Procedure.
On hearing the learned counsel for the parties and taking note of Section 31 of the Domestic Violence Act, 2005, the learned Magistrate proceeds to record that the breach of protection order by respondent is itself made an offence under Section 31 of the Act and penalty is provided for committing breach of protection orders. The learned Magistrate observes thus :
“On perusal of section 31, it transpires that this clause provides that the breach of protection order or an interim protection order shall be an offence under the proposed litigation, punishable with imprisonment of either description which may extend to one year or with fine which may extend to Rs.20,000/ or both. Thus, separate remedy is given to the aggrieved person for committing of breach of protection order by the respondents. In eventuality of breach of protection order of the Court, applicant can file complaint u/s.31 of the Act and prosecute the concerned respondent for the act done by him. This being position, no action for contempt of court can be initiated for breach of protection order by the respondent. There is no such provision for initiating contempt action as prayed by the applicant. Applicant is at liberty to file separate complaint against respondent for commission of offence punishable u/s.31 of the Act. Consequently, I hold that present applications are liable to be rejected”.
The learned Magistrate has, therefore, concluded that a separate remedy is provided to the person alleging breach of protection orders and there is separate remedy provided of prosecuting the respondent and contempt proceedings is not permissible remedy, resultantly, all three exhibits filed by the applicant came to be rejected by the order dated 15th September 2015.
3. Being aggrieved, the applicant was constrained to approach the Sessions Court by filing an appeal. The Appellate Court considered the provision of Section 31 and Rule 15 of the Domestic Violence Act. The Court observed that the proper course is to take cognizance of the offences in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure and try them summarily. The Court also takes cognizance of the procedure that is prescribed in Rule 15 and the manner in which the charge is required to be framed. Conclusively, the Addit
