Bombay High Court
Dhiraj S/O Mahadeorao Bhivgade ... vs Minal W/O Dhiraj Bhivgade (Ku. ... on 21 February, 2022
Bench: Avinash G. Gharote
apl415.20.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 415 OF 2020
(Dhiraj Mahadeorao Bhivgade and ors ...Versus... Minal Dhiraj Bhivgade)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. Raju Kadu, Advocate for the applicant.
Mr. Arjun Jain (Raoka) Advocate for the respondent
CORAM : AVINASH G. GHAROTE, J.
DATE : 21/02/2022
1] Heard Mr. Kadu, learned counsel for the
applicant and Mr. Jain, learned counsel for the respondent.
2] This application under Section 482 of Cr.P.C.
challenges the institution of the proceedings under Section 12
r/w Sections 18, 19, 20(1)(d), 22 and 23 of the Protection of
Women from Domestic Violence Act, filed by the respondent/
wife against her husband, brother-in-law and sister-in-law for
allegedly having made a demand and physical & mental
harassment and torture to the respondent.
3] Mr. Kadu, leaned counsel for the applicant
submits that the complaint itself discloses that the
respondent-wife was residing separately from the applicant
No.1-husband since 20.5.2017, and therefore, the complaint
filed on 4.1.2020 was beyond the period of one year and
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therefore, was not maintainable under Section 468 of Cr.P.C.,
for which reliance is placed upon (i) Inderjit Singh Grewal
vrs. State of Punjab, (2011) 12 SCC 588 (para 32, 33),
(ii) N. Prasad vrs. Harithalakshmi, 2020 SCC Online Madras
1767 (para 6 and 7) (iii) Preeti Gupta and anr vrs. State of
Jharkhand and anr, (2010) 7 SCC 667 (paras 30, 32, 33) and
(iv) Japani Sahoo vrs Chandra Sekhar Mohanty, 2007 (7)
SCC 394, which holds that the relevant date for the purpose
of computing the period of limitation would be the date of
filing of the complaint or initiating criminal proceedings and
not the date of taking cognizance by the Magistrate or
issuance of process.
4] That apart, on merits, learned counsel for the
applicant submits that the complaint filed by the respondent-
wife, dated 4.1.2020 is vague and does not disclose any
specific allegations, considering which also, the initiation of
the complaint was not correct and proper. He therefore,
prayed that by invoking the powers under Section 482 of
Cr.P.C., the complaint needs to be quashed, as it is an abuse of
the process of law.
5] Mr. Jain, learned counsel for the respondent,
vehemently opposes the application and submits that in so far
as issue of limitation is concerned, the proceedings under
Domestic Violence Act are quasi civil & the embargo of
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Section 468 of Cr.P.C would not be attracted, for which
reliance is placed upon judgment of the Full Bench of this
Court in Nandkishor Pralhad Vyawhare vrs. Mangala Pratap
Bansar, 2018 (3) Mh.L.J. 913, relying upon Kunapareddy
alias Nookala Shanka Balaji vrs. Kunapareddy Swarna Kumari
2016 11 SCC 774. Further relying upon Athish Rakesh
Agarwaal vrs. Pallavi Athish Agarwaal and anr, decided by
learned Single Judge of this Court on 18.2.2020 (Criminal
Writ Petition No. 261/2020), it is contended that Section 468
of Cr.P.C has no application so far as proceedings under
Section 12 of the D.V. Act is concerned, as it is an enabling
provision and there is no limitation prescribed in the D.V. Act,
though reference is made to the applicability of some
provisions of the Cr.P.C. Further reliance is placed upon
Krishna Bhatacharjee vrs. Sarathi Choudhury and anr,
2016 (2) SCC 705 (para 23 and 31), to hold that in case of
continuing offence, the question of limitation does not arise.
Reliance is also placed on Juveria Abdul Majid Patni vrs. Atif
Iqbal Mansoori, 2014 (10) SCC 736 and Ritesh Ratilala Jain
& ors vrs. Sandhya Ritesh Jain & anr, 2013 ALL MR (Cri)
3233, holding that no time limit is fixed for filing proceedings
under the D.V. Act.
6] In so far as the issue about the limitation is
concerned, though in the complaint it has been stated that
the complainant/respondent-wife had separated from the
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applicant no.1 on 20.5.2017 and had gone to her parental
house, in so far as proceedings under the D.V. Act is
concerned, considering that it has been held by the Full
Bench in Nandkishore Pralhad Vyawahare (supra), to be a
proceeding predominantly of a civil nature, the strict rigor of
Section 468 of the Cr.P.C. would clearly not be applicable.
Even Inderjeet Grewal (supra) does not in my considered
opinion lay down that in all cases where the complaint has
been filed beyond the period of one year, the same cannot be
entertained by the Court, but ought to be rejected. In Krishna
Bhatacharjee (supra), after considering Inderjeet Grewal, the
Court has held that the concept of continuing offence is
applicable to the proceedings and the wife can always put
forth her claim under Section 12 of the D.V. Act. N. Prasad
(supra) relied upon by Mr. Kadu, learned counsel for the
applicant, which solely relies upon Inderjeet Grewal, to hold
that the complaint beyond the period one year under the D.V.
Act cannot be made applicable, as it is interdicted by the Full
Bench of this Court, which holds the proceeding under the
D.V. Act, as quasi civil, which was not the position under
consideration in Inderjee Singh Grewal (supra).
7] Thus, considering the above position, in my
considered opinion, the complaint as filed by the respondent-
wife, cannot be thrown out on the sole ground that it is filed
one year beyond the period of separation, which is so also for
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the reason that the D.V. Act is a beneficial piece of litigation,
enacted for protection of the rights of the women who have
suffered at the hands of the other side and the concept of a
continuing wrong would squarely be applicable.
8] That takes me to the second contention that the
complaint does not disclose any offence. Perusal of the
complaint dated 4.1.2020, would demonstrate that though
allegations have been made in the complaint against all the
applicants, the allegations against the applicant Nos. 3 and 4
are absolutely vague, bereft of any details and are merely
generalized. The complaint does not disclose a single specific
allegation against the applicant Nos. 3 and 4, both of whom
were not resident of Nagpur at the time when the marriage
was taken place, nor thereafter. Even the complaint indicates
that applicant Nos. 3 and 4 were not resident of Nagpur, even
at the time of filing of the complaint also. The contention of
Mr. Jain, learned counsel for the respondent-wife that in
para 3, a specific demand has been made by the applicant
No. 3 of Rs. 10 lakh, in my considered opinion is not spelt out
from what is quoted there, rather it is merely a statement
which does not spell out any demand. The averments in paras
4, 5, 11 also do not spell out any specific allegations as
against applicant Nos. 3 and 4, considering which a case is
made out by the applicant Nos. 3 and 4 for interference
under Section 482 of Cr.P.C. In so far as applicant Nos 1 and 2
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are concerned, the complaint spells out some allegations
against them and the truthfulness of the same will have to be
tested on the basis of evidence to be laid, considering which
in so far as they are concerned, I am not inclined to interfere.
9] In light the above discussion, the application is
partly allowed. The proceedings in so far as applicant Nos. 3
and 4 is concerned, are hereby quashed and set aside. In so
far as the applicant Nos. 1 and 2 are concerned, the
proceedings shall go on against them.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:22.02.2022 14:59
