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2024 Supreme(Online)(KAR) 38495
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 27128 OF 2024 (GM-RES)
BETWEEN:
DR. SUPRIYA N.R., W/O. MR. KISHAN NAGESH, AGED ABOUT 43 YEARS, EARLIER RESIDING AT FLAT NO. 201, DIAMOND NEST APARTMENT, 99 BDA MAIN ROAD, N.R. COLONY, OLD AIRPORT ROAD, BENGALURU-560 017, NOW RESIDING AT FLAT D008, GRAND GANDHARVA APARTMENTS, Digitally signed PLOT NO. 40/1A, by KAVYA G 1ST MAIN ROAD, Location: HIGH COURT OF KENHENAHALLI, KARNATAKA RAJARAJESHWARI NAGAR, BANGALORE-560 098.
…PETITIONER (BY SMT. DR. SUPRIYA N.R., ADVOCATE)
AND:
1. MR KISHAN NAGESH S/O. SRI. NAGESH, AGED ABOUT 44 YEARS, EARLIER RESIDING AT PEPE JEANS INDIA LIMITED, III FLOOR, C WING, CORPORATE AVENUE, ANDHERI GHALKOPER LINK ROAD, CHAKALA, ANDHERI (EAST), MUMBAI-400 093.
NOW R/AT NO. 119, BRIGADE NORTHRIDGE, IN SY. NO. 108/2, BELAHALLI ROAD, KOGILU, YELAHANKA, BENGALURU-560 064.
2. KIRTHI NAGESH D/O. NAGESH KOKKADA, AGED ABOUT 32 YEARS, RESIDING AT NO. 8/2, CMH ROAD, OPP. METRO, PILLAR 95, NEXT TO MUTHOOT FINCORP, LAKSHMIPURAM, INDIRANAGAR, BENGALURU-560 008.
3. NAGESH KOKKADA S/O. LATE RAMU, AGED ABOUT 61 YEARS, 4. SUNITHA NAGESH W/O. NAGESH KOKKADA, AGED ABOUT 57 YEARS, BOTH ARE RESIDING AT SRI SAI GRIHA, NO.14, 2ND MAIN, 2ND BLOCK, SIR. M. V. NAGAR, RAMAMURTHYNAGAR, BENGALURU-560 016.
…RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W 482 OF CRPC PRAYING TO QUASH THE ORDER DATED. 09.08.2024 ON IA NO. 1/2023, IN CRL.MISC. 244/2019 ON THE FILE OF HONBLE JUDICIAL MAGISTRATE TRAFFIC COURT-I MAYO HALL , BANGALORE (VIDE ANNEXURE-A) AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question an order dated 09.09.2024, passed by the Judicial Magistrate Traffic Court-I, Mayo Hall Division in Crl. Misc. No.24/2019 wherein the court below allowed I.A. in part, filed by the respondent under Section - 21 of the Protection of Women from Domestic Violence Act, 2005.
2. Heard Smt.Dr.Supriya N.R., learned counsel for petitioner and perused the records.
3. The issue in the lis need not detain this Court for long or delve deep into the matter, as this Court has dealt with an identical issue of maintainability of this petition, which calls in question the order on an application filed under Section 23(2) of the Act of the concerned Court, as the petitioners have an alternative, efficacious and statutory remedy available before the Sessions Court under Section 29 of the Act, as is held in Crl.P.No.3578/2022 in the case of A.RAMESH BABU vs. DHARANI S., disposed on 28.06.2024. It is held as follows:
“10. A Full Bench of the High Court of Bombay, in the case of NANDKISHOR PRALHAD VYAWAHARE v. MANGALA1 in which the issue was whether the High Court can exercise the power under Section 482 of the Cr.P.C. in respect of proceedings under the Act, answers it after considering the entire spectrum of the Act and the precedents then obtaining as follows:
“…. …. ….
42. We have seen that the nature of proceeding initiated under the D.V. Act is predominantly of civil nature. But, can we say, only because the proceedings have a dominant civil flavour, the applicability of the provisions of Criminal Procedure Code to the proceedings under the D.V. Act, is excluded or to be precise inherent
power of the High Court under section 482 of Criminal Procedure Code is not available to deal appropriately with these proceedings, in spite of express application of the provisions of Criminal Procedure Code by the Parliament as provided under section 28 of the D.V. Act? In other words - Would the nature of the proceedings decide the fate of section 28 or the intention of the Parliament as expressed in section 28 of the D.V. Act would? To find out an answer, as a first step, we must look into the express language of the provision of section 28 of the D.V. Act and then if required, we may look for external aids, if any, as dictated to us by the settled principles of statutory interpretation.
… … …
50. Coming to the second part of section 28 of the D.V. Act, which is in sub-section (2), our view is no different than what we hold for the other exceptions we have expressed our mind on. This provision also stands as an exception to the generality of the applicability of the provisions of Criminal Procedure Code. It only enables the Court to lay down its own procedure, notwithstanding the general applicability of the provisions of Criminal Procedure Code to all the proceedings under the D.V. Act, as laid down in section 28(1). As it is only an enabling provision of law, it may or may not be put to use by the Court in a given case and everything will depend upon fact situation of each case. An enabling section, empowering the Court to make an exception to the generality of the previous section, does not by itself divest the previous section of its general character and affects the generality of the previous section only when it is actually put to use in a particular case. Whenever, such power conferred by the enabling section is used, it comes to an end the moment the proceeding is concluded. This power under section 28(2) exists for speedy and effective disposal of an application under section 12 or under sub- section (2) of section 23 and as soon as the purpose is achieved, the power extinguishes itself. In other words, the power under sub-section (2) of section 28 begins, if at all it begins, upon the decision taken by the Court on the commencement of or during the course of the proceeding under section 12 or section 23(2) and comes to an end the moment the proceeding is disposed
