Nisha Singha vs Kumar Gaurav Singh
2024 Latest Caselaw 5434 Gua

Gauhati High Court

Nisha Singha vs Kumar Gaurav Singh on 1 August, 2024

                                                                        Page No.# 1/4

GAHC010150632024




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.Pet./880/2024

            NISHA SINGHA
            W/O SRI KUMAR GAURAV SINGH
            R/O HOUSE NO. 2, SINGH BHAWAN,
            AKASH PATH, JYOTIKUCHI
            P.S. FATASIL AMBARI
            P.O.SAWKUCHI
            DIST. KAMRUP (M), ASSAM
            PHONE NO. 6207837005
            PIN- 781040



            VERSUS

            KUMAR GAURAV SINGH
            S/O LT. HARENDRA SINGH
            R/O AKASHI PATH
            JYOTIKUCHI
            P.O. SAWKUCHI
            P.S. FATASIL AMBARI
            DIST. KAMRUP (M), ASSAM
            PIN- 781040



Advocate for the Petitioner   : MR J PAYENG, MS A PAYENG,MS. SUSMITA DOLEY

Advocate for the Respondent : ,
                                                                       Page No.# 2/4

                        BEFORE
         HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                    ORDER

Date : 01.08.2024

Heard Mr. J. Payeng, learned counsel for the petitioner.

This is an application under Section 529 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for setting aside and quashing the order dated 04.07.2024, passed by the learned Additional Session Judge No. 5, Kamrup(M), Guwahati in Crl. Appeal Case No. 80/2024, whereby the Protection order dated 28.05.2023, passed by the learned SDJM(M)- 2 Kamrup(M), Guwahati in Domestic Violence Case No. 95/2024, was stayed.

Issue notice to the respondent, returnable within 4 (four) weeks.

Petitioner side to take steps for service of notice on the sole respondent by registered post with A/D as well as by usual process within a week from today.

Heard on the interim prayer.

It is submitted by Mr. Payeng, learned counsel for the petitioner, that the present accused/petitioner is a destitute lady and after severe torture on her both mentally and physically, she filed a case under D.V. Act, wherein the learned Trial Court below, vide Order dated 28.05.2024, had passed the interim Protection Order and also provided the order of shared household directing the Page No.# 3/4

present respondent to provide a room and a separate kitchen to her and also not to commit any domestic violence on her. But against the said order of the learned Magistrate, the respondent moved an appeal under Section 29 of the D.V. Act before the learned Additional Sessions Judge, which is registered as Criminal Appeal No. 80/2024, wherein the order passed by the learned Magistrate has been stayed till disposal of the appeal. Mr. Payeng further submitted that in the appeal, the order passed by the learned Magistrate was stayed considering the submissions of the respondent that the present petitioner earlier assaulted the mother of the respondent and hence, there is a life risk of the mother of the respondent. However, Mr. Payeng submitted that if the said order of learned Magistrate is stayed then the present petitioner, who is a destitute lady, has no place to take shelter along with her two minor children. Accordingly, Mr. Payeng submitted that the order passed by the learned Additional Session Judge may be stayed.

Further he submitted that the learned Additional Session Judge in exercise of jurisdiction under Section 29 of the D.V. Act has no power to pass the interim orders staying the execution of the order and it is a matter to be examined in an appropriate case while such power is expressly conferred on the Magistrate under Section 23 of the said Act. In this context, he also relied on a decision of Apex Court passed in Shalu Ojha Vs. Prashant Ojha [(2015) 2 SCC 99] and emphasize on paragraph No. 20 of the judgment, which reads as under:

"20. Questioning the correctness of the Magistrate's order in granting the maintenance of Rs. 2.5 lakhs per month the respondent carried the matter in appeal under Section 29 to the Sessions Court and sought stay of the execution of the order of the Magistrate during the pendency of the appeal. Whether the Sessions Court in exercise Page No.# 4/4

of its jurisdiction under Section 29 of the Act has any power to pass interim orders staying the execution of the order appealed before it is a matter to be examined in an appropriate case. We only note that there is no express grant of power conferred on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is not always inherent in every court. Such powers are either expressly conferred or implied in certain circumstances. This court in Super Cassettes Industries Ltd. v. Music Boradcast (P) Ltd., examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of his appeal, for that issue has not been argued before us."

Considering the submission made by the learned counsel for the petitioner and also considering the facts and circumstances on the record, further proceeding of Crl. Appeal Case No. 80/2024, pending before the Court of learned Additional Session Judge No. 5, Kamrup(M), Guwahati as well as the impugned order dated 04.07.2024 passed therein, stands stayed till disposal of the present petition.

List the matter after 4 (four) weeks.

JUDGE

Comparing Assistant