Telangana High Court
Fariduddin Shaik Imam vs The State Of Telangana on 14 November, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.6669 OF 2024
ORDER:
This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioner/accused No.2 in D.V.C.No.36 of 2023 on the file of the learned IV Metropolitan Magistrate, Integrated Court of Family Disputes, Kalpataru Complex at Purani Haveli, Hyderabad.
2. Heard Sri Sujith Jaiswal, learned counsel appearing on behalf of the petitioner as well as Sri D. Arun Kumar, learned Additional Public Prosecutor appearing on behalf of respondent No.1-State.
3. Learned counsel for the petitioner submitted that as per the judgment of this Court in Khairunnisa Begum and others v. State of Telangana and another 1 , and Delhi High Court in Harbans Lal Malik v. Payal Malik 2, D.V.C petitions can also be quashed under Section 482 of Cr.P.C., 1 2023 SCC OnLine TS 296 2 2010 (118) DRJ 582 2 SKS,J Crl.P.No.6669 of 2024 hence prayed the Court to quash the proceedings against the petitioner in D.V.C.No.36 of 2023 by considering the above said judgments.
4. On the other hand, learned Additional Public Prosecutor appearing on behalf of the respondent No.1-State opposed the submissions made by the learned counsel for the petitioner stating that as per the judgment of this Court in Gaddameedi Nagamani v. State of Telangana 3 quashing of D.V.C. against the petitioner does not arise. Hence, prayed the Court to dismiss the criminal petition.
5. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, to quash the proceedings in Domestic Violence Case is not maintainable, as Section 29 of the Protection of Women from Domestic Violence Act, 2005 affords an efficacious remedy by way of an appeal against the act of the trial Court in taking cognizance and numbering the D.V.C. Further, this Court in Gaddameedi Nagamani (supra 3), categorically held in taking cognizance and maintainability of D.V.C., which reads as follows:
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2015 (2) ALD (CRL.) 764 3 SKS,J Crl.P.No.6669 of 2024 "Undisputedly, more than three expressions of different single Benches of this Court held, if not also by referring to Section 29 and also referring clause (f) of State of Haryana v. Ch. Bhajan Lal, that there is a statutory and substantial, besides efficacious remedy available under Section 29 of the Act. Thereby quash proceedings are not automatically sustainable. It is important to note from one of the guidelines in Bhajan Lal (supra) that where there is a specific provision in the code or the concerned Act, providing efficacious redress for grievance of the aggrieved party, quash proceedings are not maintainable under Section 482 Cr.P.C. to invoke. From this proposition, needless to say, the expression relied upon of Pepsi Foods Ltd. V. Special Judicial Magistrate, it was held that an accused can approach the High Court under Section 482 Cr.P.C. or Articles 226 or 227 of the Constitution of India. Learned counsel for the petitioners by placing reliance on it want to impress the Court that when constitutional remedies available under Articles 226, 227 of the Constitution of India or Section 482 Cr.P.C.
equally irrespective of Section 29 of appeal remedy though statutory and efficacious, Section 482 Cr.P.C. proceedings are maintainable. In fact that expression is by giving approval to the expressing and the guidelines of Bhajan Lal (supra) and not even explaining much less dissenting to the guidelines. Undisputedly, guidelines of Bhajan Lal (supra) still rules the field as law of land under Article 141 of the Constitution of India.
Now coming back to Sections 26, 28 and 29 of the Act, even referring to Sulochana v. 4
SKS,J Crl.P.No.6669 of 2024 Kuttappan (supra) the very expression says in para - 12 that I have no hesitation to agree that the expression 'the order' must take within its sweep all orders under Sections 18 to 23 and I find no reason to exclude, going by language and semantics; an order under Section 23 from the sweep of the expression as order used in Section 29 is not an exclusive but an inclusive expression. It is with reference to it, even one reads Section 28, it speaks that all the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and one reads the same with Section 190 Cr.P.C.,; numbering the same is by applying judicial mind and that tantamount to taking of cognizance. This also for the reason Section 28 is preceded by Section 29. In this regard cloud is cleared by the expression of the Apex Court way back in Dharangadhra Chemical Works v.
Dharangadhra Municipality particularly referring to expression in Kutner v. Philips, [1891] 2 W.B. 267 at 272. Zaverbai Amaidas v. The State of Bombay [1955] 1 S.C.R. 799, that not only in two legislations to prevail the subsequent one; even in one legislation among the provision in the order if any inconsistency or irreconcilability, the latter provision prevails over the earlier provision. 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 5 SKS,J Crl.P.No.6669 of 2024 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, the office objection holds good thereby all the applications are liable to be rejected. Needless to say if any appeal is filed by any of the petitioners herein, they can file for the period beyond one month with application invoking Section14 of the Limitation Act before the 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 the 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 the case may be, the learned Magistrate shall entertain, hear and pass appropriate orders granting the same with necessary conditions."
6. In the present case, as observed by this Court in Gaddameedi Nagamani (supra 3), the petitioner has to file an appeal before the Court under Section 29 of the Protection of Women from Domestic Violence Act, 2005. 6
SKS,J Crl.P.No.6669 of 2024 Further, the judgments relied upon by the learned counsel for the petitioner relied upon the Judgment of the Delhi High Court in Harbans Lal Malik (supra 2), this judgment is prior to the judgment of this Court in Gaddameedi Nagamani and also there is no reference of Section 29 of the DVC Act. Further, the Judgment of this Court in Khairunnisa Begum (supra 1), reference of judgment Gaddameedi Nagamani was not mentioned and decided basing on the facts. Though there is a provision under Section 29 of the Act, these judgments are not applicable to the facts of the case on hand as they do not discussed about the maintainability of the D.V.C. petitions under Section 482 of Cr.P.C. Therefore, there are no merits in the criminal petition to quash the proceedings against the petitioner and the same is liable to be dismissed.
7. In view thereof, the criminal petition is dismissed. However, in view of the request made by the learned counsel for the petitioner, the appearance of the petitioner before the trial Court in D.V.C.No.36 of 2023 on the file of the learned IV Metropolitan Magistrate, Integrated Court of Family Disputes, Kalpataru Complex is dispensed with, 7 SKS,J Crl.P.No.6669 of 2024 except on the dates whenever his presence is required by the trial Court, and he shall be represented by his counsel on every date of hearing and in case of default, this order gets vacated automatically.
Miscellaneous petitions, if any pending, shall also stand closed.
______________ K. SUJANA, J Date: 14.11.2024 SAI