Harsherekha A. Garg And Anr vs The State Of Maharashtra
2022 Latest Caselaw 5266 Bom

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                             WRIT PETITION NO.4412 OF 2021

                      Harsherekha Ajay Garg and Another                        ...Petitioners
                                 vs.
                      The State of Maharashtra and Another                    ...Respondents
VISHAL
SUBHASH               Mr. Ashok Kumar Upadhyay, for the Petitioners.
PAREKAR               Mr. Aabad Ponda, Senior Advocate a/w. Mr. Niranjan Mundargi
Digitally signed by
                      i/b. M/s. MDP Partners, for Respondent No. 2.
VISHAL SUBHASH
PAREKAR
                      Ms. Anamika Malhotra, App for the State.
Date: 2022.06.10
18:06:09 +0530
                                                   CORAM :                 N.J. JAMADAR, J.
                                                   RESERVED ON :           19th APRIL, 2022
                                                   PRONOUNCED ON :         10th JUNE, 2022

                                                         ---------------

                      JUDGMENT :

1. This petition under Article 226 of the Constitution of India

and section 482 of the Code of Criminal Procedure, 1973 (the

Code) assails the legality, propriety and correctness of an order

dated 30th September, 2021 passed by the learned Metropolitan

Magistrate, 40th Court, Girgaon, Mumbai issuing process against

the petitioners/respondent Nos. 1 and 3 for the offences

punishable under section 31 of the Protection of Women from

Domestic Violence Act, 2005 (the DV Act, 2005).

2. The background facts leading to this petition can be stated

in brief as under:

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a]       The marriage of the petitioner No. 2 was solemnized with

respondent No. 2 on 12th February, 2011. The petitioner No. 2

and respondent No. 2 were blessed with the twins, on 5 th

September, 2014. Their marital life was, however, afflicted with

discord. In the wake of matrimonial discord, it seems, a number

of proceedings came to be instituted, including a complaint

under DV Act, 2005, being CC No.6/DV/2020 wherein the

respondent No. 2 complainant sought multiple reliefs in the

nature of protection order, residence order and monetary

reliefs. In the said complaint, apart from Mr. Anirudha Garg

(petitioner No. 2 herein) the husband of respondent No. 2, Mr.

Ajay Garg, father in law, and Mrs. Harshrekha Garg, mother in

law, (the petitioner No. 1 herein) were also impleaded as party

respondents.

b] Without delving into the allegations and counter-

allegations, it would be suffice to note that the respondent No. 2-

complainant preferred an application in the said proceeding i.e.

CC No.6/DV/2020, for interim reliefs. By an order dated 29 th

February, 2020, the learned Metropolitan Magistrate, 40 th

Court, Girgaon, Mumbai partly allowed the said interim

application and prohibited the respondents therein (petitioners

herein and Mr. Ajay Garg) from dispossessing the applicant and

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her children from matrimonial home i.e. 224, Tahnee Heights,

wing, 22nd Floor, Napean Sea Road, Mumbai. The respondents

were also directed to hand over a key of the main entrance of the

said matrimonial home to the respondent No. 2/complainant. It

was further ordered that the parties shall respect each other's

privacy and dignity and ensure that no disturbance is caused in

the said matrimonial home.

3. The respondent No. 2/complainant preferred an

application alleging breach of the aforesaid order. It was alleged

that on 5th March, 2020, the respondent Nos. 1 and 3/petitioners

herein, in flagrant violation of aforesaid order, installed five

CCTV cameras (wifi enabled) in the aforesaid matrimonial home

of respondent No. 2, in respect of which the learned Magistrate

had passed protection orders. The respondent No. 2 furnished

the particulars of the locations where the CCTV cameras were

installed. It was further alleged that the petitioner No. 2

threatened that he would monitor the movements of the

complainant and record the conversations 24 x 7. This act of the

petitioners constituted an invidious infringement on respondent

No.2's right to privacy and in clear breach of the direction that

the parties shall respect each other's privacy and dignity.

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4.       The           learned   Magistrate   recorded   the   verification

statement of the respondent No. 2/complainant. After perusal of

the complaint and consideration of the material, the learned

Magistrate recorded that a prima facie case of breach of interim

protection order, passed on 29th February, 2020, was made out.

Thus process was ordered to be issued for the offence punishable

under section 31 of the DV Act, 2005 against the petitioners

(respondent Nos. 1 and 3) only.

5. Being aggrieved, the petitioners have invoked writ and

inherent jurisdiction of this Court. The petitioners, inter alia,

assert that the learned Magistrate committed a grave error in

holding that a prima facie case for the offence punishable under

section 31 of the DV Act, 2005 was made out. The installation of

CCTV cameras in the common areas of the subject premises

would not amount to invasion of the privacy of respondent No. 2

and breach of the interim protection order passed by the learned

Magistrate.

6. When the petition was taken up for admission, the

respondent No. 2/ complainant appeared and challenged the

tenability of the petition on the ground that the petitioners have

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a statutory remedy under section 29 of the DV Act, 2005. In the

face of a provision of statutory appeal, which is an efficacious

remedy, this Court would not be justified in entertaining the

petition in exercise of the extraordinary writ and inherent

jurisdiction.

7. In the backdrop of the said challenge, it was considered

expedient to hear the parties on the point of maintainability of

the petition.

8. Mr. Aabad Ponda, learned senior advocate for respondent

No. 2 and Mr. Ashokkumar Upadhyay, the learned counsel for

the petitioners, advanced submission in opposition to, and in

support, of the tenability of the petition, respectively. I have also

perused the material on record.

9. Mr. Aabad Ponda, the learned senior advocate submitted

that the issue in the instant case is not one of existence of an

alternative remedy before a forum created by statute. In the

case at hand, the Court is confronted with a situation where the

statute provides a remedy of an appeal to the Court constituted

under the Code. The limitation on exercise of writ jurisdiction

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where there is a statutory appeal to the Court created under the

Code operates with greater force. Mr. Ponda would urge that the

petitioners are not sought to be relegated to a remedy before

some quasi-judicial forum. The petitioners have, according to Mr.

Ponda, a statutory right of appeal before a superior Court

constituted under the Code. In such a situation, the exercise of

writ jurisdiction would not be permissible, urged Mr. Ponda.

10. To bolster up this submission, Mr. Ponda placed a strong

reliance on the judgments of the Supreme Court, in the cases of

Thansingh Nathmal vs. Superintendent of Taxes, Dhubri and

Others1; Commissioner of Income Tax and Others vs. Chhabil

Dass Agarwal2 and Authorized Officer, State Bank of Travancore

and Another vs. Mathew K.C.3

11. Mr. Ponda would further urge that the issue is also covered

by a full bench judgment of this Court in the case of Nandkishor

Pralhad Vyawahare vs. Mangala Pratap Bansar4 wherein the full

bench ruled that, in a given case, the High Court may exercise

the inherent power to quash a proceeding under the DV Act,

1 AIR 1964 SC 1419.

2 (2014) 1 Supreme Court Cases 603.

3 (2018) 3 Supreme Court Cases 85.

4 2018 (3) Mh.L.J. 913.

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2005. However, the Full Bench administered a note of caution as

regards the self-imposed restrictions, including the factor of

availability of equally efficacious alternate remedy under

Section 29 of the D.V. Act, 2005.

12. Mr. Ponda further submitted that a learned single Judge of

this Court in the case of Siddharth Sabharwal vs. State of

Maharashtra5 has held that in view of the existence of an

alternative and efficacious remedy of appeal, a writ petition

challenging an order passed by the learned Magistrate under DV

Act, 2005 may not be entertained.

13. Per contra, Mr. Upadhyay, the learned counsel for the

petitioners submitted that there is no embargo on the power of

the High Court to exercise the writ and inherent jurisdiction

where the petitioner succeeds in demonstrating that the

continuation of the proceeding under the DV Act, 2005 would be

an abuse of the process of the Court. The inherent powers of the

Court are designedly saved. According to Mr. Upadhyay where

the Court comes to the conclusion that no prima facie case is

made out, it would be justified in quashing such proceeding.

5 2019 SCC OnLine Bom 3106.

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14. Mr. Upadhyay sought to place reliance on the judgments of

the Supreme Court in the cases of Pepsi Foods Limited vs.

Special Judicial Magistrate6; Dhariwal Tobacco Products Limited

vs. State of Maharashtra and Another7 and Parbatbhai Aahir @

Parbatbhai Bhimsinhbhai Karmur & Ors. vs. State of Gujarat

and Another8 wherein the contours of the inherent powers

under section 482 of the Code were enunciated. Special

emphasis was laid on the pronouncement of the Supreme Court

in the case of Dhariwal Tobacco Products Limited and Others vs.

State of Maharashtra and Another9 wherein the Supreme Court

inter alia held that an application under section 482 of the Code

cannot be dismissed only on the premise that an alternative

remedy of filing revision under section 394 of the Code is

available.

15. I have given my anxious consideration to the rival

submissions.

16. Before adverting to deal with the aforesaid submissions, it

may be expedient to extract section 29 of the DV Act, 2005. It

6 (1998) 5 Supreme Court Cases 749.

7 (2009) 2 Supreme Court Cases 370.

8 (2017) 9 Supreme Court Cases 641.

9 (2009) 2 Supreme Court Cases 370.

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reads as under:

29. Appeal -- There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

On a plain reading of section 29, it becomes evident that

the provision of appeal is worded in unhinged terms. It simply

provides that an appeal shall lie to the Court of Session against

an order made by the Magistrate. Section 29 does not explicitly

spell out the orders which would be "appealable" thereunder.

However, it does not imply that each and every order passed by

the learned Magistrate would be susceptible to appeal.

17. In the life of a proceeding, at different stages, the Court

passes various orders. Some deal with procedural aspects. Some

decide the matter at the moment. Few are of interim nature. Few

partake the character of interlocutory order. Each and every

order is not appealable. The orders which decide the rights and

liabilities of the parties either finally or at an interim stage may

be legitimately subjected to appeal.

18. In the case of Abhijit Bhikaseth Auti vs. State of

Maharashtra and Another10 a learned single Judge of this Court 10 2009 Cri. L.J. 889.

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considered the question whether an appeal will lie under section

29 of the DV Act, 2005 against every order passed by the

learned Magistrate in a proceeding initiated on the basis of an

application made under section 12 of the DV Act, 2005. After

adverting to the provisions of section 29, the learned single

Judge enunciated that the orders contemplated under the DV

Act, 2005 can be broadly divided under three categories. First

category is of the final order passed on an application under sub

section (1) of section 12. The second category is of the ex-parte

ad-interim orders under sub-section (2) of section 23 of the said

Act and the third category will be of the interim orders under

sub section (1) of section 23 of the said Act. Categorizing thus

the nature of the orders which can be passed under the DV Act,

2005, the learned single judge, after following the judgment of

the Supreme Court in the case of Shankarlal Aggarwal vs.

Shankarlal Poddar11 on the aspect of the construction of

provision which provides for an appeal, ruled that an appeal will

lie under section 29 of the DV Act, 2005 against the final order

as well as the interim orders passed under sub section (1) of

section 23 of the DV Act, 2005. However, an appeal under

section 29 will not be maintainable against purely procedural

orders such as orders on application for amendment of 11 AIR 1965 SC 507.

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pleadings, orders refusing or granting adjournment, orders

issuing witness summons, or orders passed for executing the

orders passed under the said Act, which do not decide or

determine the rights and liabilities of the parties.

19. At this juncture, the nature of the impugned order

assumes significance. Section 31 of the DV Act, 2005 provides

that a breach of the interim protection order by the respondent

shall be an offence under the Said Act and shall be punishable

with imprisonment of either description for a term which may

extend to one year, or with fine which may extend to twenty

thousand rupees, or with both. Section 32 declares that the

offence under sub-section (1) of section 31 shall be cognizable

and non-bailable.

20. In the case at hand, the learned Magistrate had recorded a

prima facie finding that by installing the CCTV cameras, the

respondent committed breach of the interim protection order

dated 29th February, 2020. Evidently, the nature of the order is

such that if the Court of Session, in exercise of the appellate

power, under section 29 reverses the order passed by the

Magistrate, the proceeding before the Magistrate would

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terminate. From this stand-point, the impugned order cannot be

said to be purely of a procedural nature, so as to fall outside the

amenability to appeal under section 29 of the Act, 2005.

21. Consistent with the aforesaid view, if the impugned order

is considered to be appealable, the challenge to the tenability to

the petition, in the context of the remedy of appeal under section

29, deserves to be considered.

22. Undoubtedly, the existence of an alternative relief is a self-

imposed restraint. The High Court in exercise of the plenary

powers under Article 226 is not precluded from exercising the

jurisdiction despite the existence of an alternative remedy. The

exceptional situations in which the High Court may justifiably

exercise the jurisdiction in the face of an alternative remedy are

well recognized, namely, where the infringement of the

fundamental rights is alleged, where the principles of natural

justice or fundamental principles of judicial process have been

violated or where the order or proceeding are wholly without

jurisdiction or were the vires of the law under which the order is

or purports to be passed is challenged.

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23. In the case of Thansingh Nathmal (supra) the Constitution

Bench of the Supreme Court enunciated the principles as under:-

7. .......Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up.

(emphasis supplied)

24. In the case of Chhabil Agarwal (supra), the Supreme Court

elaborately considered the restraint on exercise of writ

jurisdiction in the face of availability of an alternative statutory

remedy in the light of the previous pronouncements on the said

issue. The legal position was culled out as under:-

15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills

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case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

25. It is imperative to note that the Full Bench of this Court in

the case of Nandkishor Vyawahare (supra) while upholding the

contention that the High Court would be justified in exercising

the inherent jurisdiction under section 482 of the Code

expressly referred to the necessity to be alive to the existence of

alternative statutory remedy of appeal under section 29 of the

Code. The observations in paragraph 53 are material and hence

extracted below.

53. This would mean that generally the provisions of Cr.P.C. would be applicable, to all proceedings taken under Sections 12 to 23 and also in respect of the offence under Section 31 of the D.V. Act, subject to the exceptions provided for in the Act including the one under sub-section (2) of Section 28. It would then follow that it is not the nature of the proceeding that would be determinative of the general applicability of Cr.P.C. to the proceedings referred to in Section 28(1) of the D.V. Act, but the intention of the Parliament as expressed by plain and clear language of the Section, which would have it's last word. We have already held that Section 28 of the D.V. Act announces clearly and without any ambiguity the intention of the Parliament to apply the criminal procedure generally subject to the exceptions given under the Act. So, the inherent power of the High

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Court under Section 482 of Cr.P.C., subject to the self-imposed restrictions including the factor of availability of equally efficacious alternate remedy under Section 29 of the D.V. Act, would be available for redressal of the grievances of the party arising from the orders passed in proceedings under Sections 12, 18, 19, 20 21, 22 and 23 and also in respect of the offence under Section 31 of the D.V. Act.

(emphasis supplied)

26. A learned single judge of this Court in the case case of

Siddharth Sabharwal (supra), where an order of ex parte

interim relief was directly assailed in writ petition, declined to

entertain the petition on the ground that the petitioners therein

had an alternative and efficacious remedy of appeal. Paragraphs

19 to 21 read as under:-

19. So far an argument of availability of alternate remedy of Appeal is concerned, it would be apt to reproduce herein below Section 29 of the DV Act, Appeal - There shall lie an appeal to the Court of Sessions within thirty days from the date o which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

20. It is abundantly clear from the careful perusal of Section 29 of the said Act mentioned herein above that, there shall lie an appeal to the Court of Sessions within thirty days from the date of the order made by the Magistrate is served upon the aggrieved person or the respondent, as the case may be, whichever is later. Therefore, it was possible for the Petitioner to file the appeal instead of filing the present petition.

21. According to the learned counsel appearing for Respondent No. 2, second Respondent did follow the mandate of Rule 7 and filed the affidavit in Form III,

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as required under DV Act and Rules there under. Even if the case of the petitioner is accepted as it is that, the proper procedure has not been followed by the learned Metropolitan Magistrate or proper affidavit was not filed by Respondent No. 2; in that case also, for redressal of said grievance, it is open for the Petitioner to invoke an appellate jurisdiction under Section 29 of the DV Act. The Petitioner also has an opportunity to cause his appearance which reads as under:- before the learned Magistrate, if already not caused, and put forth his contentions. Therefore, this Court is of the opinion that, in the peculiar facts and circumstances of the case, when the learned Magistrate has passed the ex parte order assigning cogent reasons, which are legally sustainable, the interference by this Court in the impugned order, on the ground of non adherence to the procedure as alleged by the Petitioner, is not warranted. This Court is of the opinion that, the Petitioner ought to have availed of an appropriate remedy of appeal, so also it was possible for the Petitioner to approach before the Metropolitan Magistrate Court, in that view of the matter an interference in the impugned order is not called for. In the light of discussion in foregoing paragraphs, without entering into the merits of the matter, this Court is of the opinion that, in view of alternate and efficacious remedy available to the Petitioner or the Petitioner can also contest the proceeding pending before the Metropolitan Magistrate, the petition deserves no consideration.

27. The conspectus of the aforesaid consideration is that the

existence of an alternative remedy of appeal before the Court

constituted under the Code can hardly be disputed. The question

that wrenches to the fore is, whether in the backdrop of the facts

of the case, this Court would be justified in exercising the writ

and inherent jurisdiction despite the existence of the statutory

remedy.

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28. The petitioners have made no endevour to bring the case

within the well recognized exceptions for the exercise of writ

jurisdiction in the face of alternative remedy, indicated above.

From the tenor of the petition one gets an impression that the

factum of installation of CCTV cameras is not sought to be

seriously disputed. It appears that it is the bold stand of the

petitioners that the installation of CCTV cameras in common

areas of the subject premises does not impinge upon the

respondent No.2's right to privacy. Nor does it constitute the

breach of the interim protection order passed by the learned

Magistrate, which forms the substratum of the prosecution

punishable under section 31 of the DV Act, 2005. The

controversy is thus essentially rooted in thickets of facts.

Whether the act of installation of the CCTV cameras violates the

interim protection order to respect the privacy of the

respondent No. 2, is the moot question.

29. In my considered view, in the backdrop of the aforesaid

nature of challenge to the impugned order, the High Court would

not be justified in exercising the writ jurisdiction despite

existence of the alternative statutory remedy. The appellate

Court can very well look into the grievance of the petitioners

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and correct the mistake, if any, committed by the learned

Magistrate.

30. The upshot of the aforesaid discussion is that the challenge

to the tenability of the petition appears well founded.

Resultantly, I am persuaded not to entertain the petition.

Hence, the following order.

                                ORDER

a]       The petition stands dismissed.

b]       The petitioners are, however, at liberty to avail the

statutory remedy of appeal, if so advised.

c] In the event the petitioners avail the statutory remedy of

appeal, the time spent by the petitioners in prosecuting this

petition shall be excluded while computing the period of

limitation.

                                          (N.J. JAMADAR, J.)




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