Kerala High Court
Sabari S. Nair vs State Of Kerala on 1 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
CRL.REV.PET NO. 689 OF 2024
AGAINST THE JUDGMENT DATED 15.06.2024 IN CA NO.99/2024 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT-V, THIRUVANANTHAPURAM/II ADDITIONAL
MACT ARISING OUT OF THE ORDER DATED 03.05.2024 IN CMP NO.1536/2023 IN
M.C.NO.11/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV (MOBILE),
THIRUVANANTHAPURAM.
REVISION PETITIONER/APPELLANT/RESPONDENT/RESPONDENT IN M.C.:
SABARI S.NAIR,
AGED 39 YEARS, SON OF LATE P.SASIDHARAN NAIR,
HARISREE, KAILAS NAGAR, PALLICHAL, PUNNAMOODU,
KALLIYOOR P.O., THIRUVANANTHAPURAM, PIN-695020.
BY ADVS.T.RAMPRASAD UNNI
K.RAMAKUMAR (SR.)
S.M.PRASANTH
ASWINI SANKAR R.S.
SHEHIN S.
RESPONDENTS/RESPONDENTS & STATE/PETITIONER/1ST APPLICANT IN M.C.:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN-682031.
2 DIVYA G.G.,
D/O. GIRIJAKUMARI P., FLAT NO. 5C,
LE ROYALE, KUNNUKUZHY, THIRUVANANTHAPURAM
AND ALSO HAVING ADDRESS AT T.C. 28/1044,
KARTHIKA, PUNNAPURAM FORT P.O.,
THIRUVANANTHAPURAM, PIN-695023.
R1 SRI.M.P.PRASANTH, PUBLIC PROSECUTOR
R2 ADVS.KISHORE D
MEERA GOPINATH(K/001803/1999.)
R.MURALEEKRISHNAN (MALAKKARA)(K/000583/2008)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Rev..Pet. No.689 of 2024
-:2:-
'C.R.'
ORDER
Dated this the 1st day of August, 2024
This Criminal Revision Petition has been filed by the
petitioner under Section 438 of the Bhartiya Nagrik Suraksha
Sanhita, 2023 challenging judgment in Crl. Appeal No.99/2024
dated 15.06.2024 on the files of the Additional Sessions Court,
Thiruvananthapuram and order in CMP No.1536/2023 in
M.C.No.11/2023 on the files of the Judicial First Class Magistrate-
IV/Mobile Court, Thiruvananthapuram.
2. The parties in this revision will be referred as to their
status before the trial court.
3. The summary of the case is as under:-
M.C. No.11/2023 was filed by the wife as the petitioner,
seeking reliefs under the Protection of Women from Domestic
Violence Act ('DV Act' for short hereinafter), where the revision
petitioner herein got arrayed as the respondent.
4. The summary of CMP No.1536/2023 is that the
respondent/revision petitioner herein is the husband of the 1 st
petitioner/respondent herein. The 1st petitioner, who is
aggrieved by the acts of domestic violence at the instance of the
respondent, had filed the M.C. Along with the M.C., she sought for
an interim order and obtained an interim protection order
against the respondent. The petitioner is now residing at the
shared household, viz., Flat No.5C, Le Royale, Kunnukuzhy,
Thiruvananthapuram, which is jointly owned by the petitioner
and respondent. It is her specific allegation that the respondent,
in order to alienate their shared household, had threatened her
and her daughter, warning them to evict from the house at the
earliest. On 20.08.2023, the respondent forcefully took away her
Toyota Fortuner Car (White Pearl Crystal colour) bearing
registration No.KL-01-CG-7777 which was parked at the parking
space of the shared household. She informed this matter to the
nearby police station and the police had directed the 1 st
petitioner to get an order from the court. According the 1 st
petitioner, the vehicle was used to pick up and drop the 2 nd
petitioner from her school and the respondent was doing all the
above said alleged acts only to harass the petitioner. Accordingly,
she sought for the custody of the car.
5. The application was objected on the ground that the
husband made payment for the vehicle. Therefore, the absolute
ownership claimed by the wife, though she is the registered
owner is not sustainable.
6. After adjudicating the matter, the learned Magistrate
passed an order directing the respondent/husband to return the
car, which was admitted to be in possession of the respondent,
within one week from the date of the order. Challenging the said
order, Crl. Appeal No.99/2024 was filed before the Sessions
Court and the Additional Sessions Court confirmed the order.
7. Before issuance of the interim order in CMP
No.1536/2023, initially the wife and minor child filed Crl.M.P.
No.2283/2023 seeking interim reliefs, and thereby the
Magistrate granted two reliefs as per order dated 10.08.2023.
i) The respondent is hereby restrained from
committing any act of physical violence against the
petitioners.
ii) The respondent is restrained from evicting the
petitioners from the petitioner's shared household
of Flat No.5C, Le Royale, Kunnukuzhy,
Thiruvananthapuram until further orders.
8. Challenging the reliefs granted in Crl.M.P.
No.2283/2023 dated 10.08.2023 and the relief granted in CMP
No.1536/2023 in M.C. No.11/2023, O.P. (Crl.) No.468/2024 had
been filed before this Court and a learned Single Judge of this
Court dismissed the petition holding that the remedy of the
petitioner is to file a revision petition. The learned Single Judge
also found that as far as the relief granted in CMP No.1536/2023
is concerned, the interim order stood merged with the appellate
judgment.
9. It is at this juncture, the present revision petition has
been filed. While challenging the orders, a specific point raised
by the learned counsel for the revision petitioner is that if an
interim order under Section 18 is passed, another order should
not be passed except in accordance with the mandate of Section
25(2) of the DV Act.
10. The learned Senior Counsel read out Section 25(2)
and submitted that the present relief granted in a separate CMP
(CMP No.1536/2023), which derogates the mandate of Section
25(2) is not maintainable and therefore, the orders impugned
would require interference.
11. Per contra, it is submitted by the learned counsel for
the respondent wife that going by Section 5 of the DV Act, a
Police Officer, Protection Officer, Service Provider or Magistrate
would apprise an aggrieved person when a complaint of
domestic violence or when an incident of domestic violence in
front of him or or when the incident of domestic violence is
reported to him.
12. Sub-section (a) to (e) of Section 5 of the DV Act
provides as under:-
a) of her right to make an application for obtaining a
relief by way of a protection order, an order for
monetary relief, a custody order, a residence order, a
compensation order or more than one such order
under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection
Officers;
(d) of her right to free legal services under the Legal
Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498-
A of the Indian Penal Code (45 of 1860), wherever
relevant:
Provided that nothing in this Act shall be construed in
any manner as to relieve a police officer from his duty
to proceed in accordance with law upon receipt of
information as to the commission of a cognisable
offence.
13. According to the learned counsel for the petitioner,
regarding the question of maintainability of the revision petition,
as early in Harshakumar and another v. State of Kerala and
others [2011 (3) KHC 15], this Court considered the question
and answered as under:-
The next question is whether the judgment of the
Court of Sessions in an appeal under Sec.29 of the
Act is amenable to the revisional jurisdiction of the
High Court under Secs.397(1) and 401 of the Code. I
stated that the appeal is governed by the provisions
of the Code though right of appeal is provided by
Sec.29 of the Act. The Act does not say that
judgment of the Court of Sessions is subject to
challenge before any other court. Under Sec.397(1)
of the Code, High Court may call for and examine the
records of any proceeding before any inferior
Criminal Court. A Court of Sessions is a criminal
court inferior to the High Court for the purpose of
exercise of revisional power under Sec.397(1) and
401 of the Code. Sec.397(1) of the Code empowers
the courts specified therein to call for records of the
inferior Criminal Court and examine them for the
purpose of satisfying themselves as to whether a
sentence, finding or order of such inferior Court is
legal, correct or proper or whether the proceedings
of such inferior Court is regular. The object of
conferring revisional power is to give the superior
Criminal Courts supervisory jurisdiction in order to
correct miscarriage of justice arising from
misconception of law, irregularity of procedure,
neglect of proper precautions or apparent
harshness of treatment which has resulted on the
one hand in some injury in the due maintenance of
law and order, or on the other hand in some
undeserved hardship to individuals. The power of
revision is supervisory in character enabling the
superior Courts to call for records of the inferior
Criminal Courts and examine them for the purpose
of satisfying themselves that the sentence, finding,
order or proceeding of such inferior Court is legal,
correct or proper. Judgment of the Court of Sessions
in an appeal though preferred under S.29 of the Act
being of an inferior Criminal Court, is revisable by
the High Court in exercise of its power under
S.397(1) and 401 of the Code. Petitioners have to
take recourse to that remedy. In the circumstances, I
am not inclined to exercise the extraordinary
jurisdiction conferred on this Court under S.482 of
the Code.
14. Now the question arises for consideration is whether
a revision petition is maintainable challenging order in criminal
appeal arising out of a proceedings under the DV Act? In this
connection, the learned counsel for the respondent also placed
full bench decision of the Allahabad High Court in Dinesh Kumar
Yadav v. State of U.P. and another [2017 KHC 2210], where the
Allahabad High Court considered the decision of the Apex Court
in Shalu Ojha v. Prashant Ojha [(2015) 2 SCC 99] and held that,
in paragraph 27 of the above decision, the Honourable Apex
Court had only said that in DV Act, no further appeal or revision
had been provided, but the Code of Criminal Procedure had not
been excluded in the DV Act. In Dinesh Kumar Yadav (supra),
the Division Bench of Allahabad High Court addressed the
following questions:-
"i) Whether a revision under S.397/401 of the Code of
Criminal Procedure, 1973 is maintainable before the
High Court challenging an order passed by the Court of
Sessions under S.39 of the Act 2005?
ii) Whether the decisions in the case of Nishant
Krishna Yadav (Criminal Revision No.4016 of 2015)
and Manju Shree Robinson and Ors. Vs State of U.P. and
Ors. (Writ Petition No.7926 (MS) of 2015) lay down
correctly on the question of maintainability of a
Revision under S.397/401 of the Code of Criminal
Procedure before the High Court against an order
passed by the Court of Sessions under S.29 of the Act
2005 in view of the earlier decisions of the Supreme
Court in the case of Thakur Das Vs State of Madhya
Pradesh and Anr., [(1978) 1 SCC 27]; National Sewing
Thread Co. Ltd., Chidambaram Vs James Chadwaick
and Bros., AIR (1953) SC 357]; Maharashtra State
Financial Corporation Vs Jayee Drugs & Pharm,
[(1991) 2 SCC 637]; and ITI Ltd. Vs Siemens Public
Communications Networks Ltd., [(2002) 5 SCC 510]?"
15. In answer to the same, paragraph 25 is as under:-
"In the result, we answer the first question in the
affirmative holding that the decisions in Nishant
Krishna Yadav (supra) and Manju Shree Robinso
(supra) do not lay down the law correctly. In other
words, we hold that a revision under S.397/104 of
Cr.P.C. against a judgment and order passed by the
Court of Sessions under S.29 of the Act, 2005 is
maintainable and that the decisions in Nishant
Krishna Yadav (supra) and Manju Shree Robinson
(supra) do not lay down the law correctly."
16. Now as per the judgment rendered by this Court in
O.P.(Crl.) No.468/2024, it has been held by the learned Single
Judge of this Court that the remedy is to challenge the present
orders by filing a revision. Reading the ratio in Shalu Ojha
(supra), in paragraph 27, the Apex Court held that "it can be
seen from the DV Act that no further appeal or revision is
provided to the High Court or any other court against the
order of the Sessions Court under Section 29." Indubitably, no
provisions in the DV Act provide further appeal or revision
challenging the judgment of an appellate court rendered under
Section 29 of DV Act. But Section 28 of the DV Act deals with the
procedure to go under the DV Act. Section 28 (1) and (2) of the
DV Act provide as under:-
(1) Save as otherwise provided in this Act, all
proceedings under sections 12,18, 19, 20, 21, 22
and 23 and offences under section 31 shall be
governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the
court from laying down its own procedure for
disposal of an application under section 12 or
under sub-section (2) of section 23.
17. Similarly, Section 401 of the Code of Criminal
Procedure ('Cr.P.C.' for short hereinafter) empowers the High
Court to exercise power of revision. Section 401 of Cr.P.C.
provides as under:-
(1) In the case of any proceeding the record of
which has been called for by itself or which
otherwise comes to its knowledge, the High Court
may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by sections 386, 389,
390 and 391 or on a Court of Session by section 307
and, when the Judges composing the Court of
revision are equally divided in opinion, the case
shall be disposed of in the manner provided by
section 392.
(2) No order under this section shall be made to
the prejudice of the accused or other person unless
he has had an opportunity of being heard either
personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to
authorise a High Court to convert a finding of
acquittal into one of conviction.
(4) Where under this Code an appeal lies and no
appeal is brought, no proceeding by way of revision
shall be entertained at the instance of the party
who could have appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High
Court by any person and the High Court is satisfied
that such application was made under the
erroneous belief that no appeal lies thereto and
that it is necessary in the interests of justice so to
do, the High Court may treat the application for
revision as a petition of appeal and deal with the
same accordingly.
18. The above discussion leads to the conclusion that the
power of revision available to the High Court can be resorted to,
in order to challenge an appellate judgment delivered under
Section 25 of DV Act, since as per Section 28, all proceedings
under Sections 12, 18, 19, 20, 21, 22 23 and 31 shall be governed
by the provisions of the Code of Criminal Procedure. Therefore, it
held that the revision challenging a judgment in a criminal
appeal delivered under Section 25 of DV Act with the aid of
revisional power of the High Court under the Code of Criminal
Procedure and under the Bhartiya Nagrik Suraksha Sanhita is
maintainable before the High Court.
19. Reverting back to the question posed, as to whether
after passing an interim order under Section 18, another order
should not be passed except in accordance with the mandate of
Section 25(2) of DV Act? Here, initially, in an interim petition
was filed before the Magistrate Court and the petitioner sought
two reliefs, the same were granted. Again, a fresh petition filed
seeking an interim order, to handover the vehicle bearing
Registration No.KL-01-CG-7777 to the petitioner. The said relief
was sought for, mainly contending as stated in paragraphs 5 and
7 as under:
"5. Now the respondent is trying to alienate his share over
the sharehold house and is spreading the message to his
men that he is going to sell this flat. As a result, nowadays,
so many people were coming to out residence with the
intention of inspecting the house before purchase and
causing nuisance to me and my daughter. The respondent
is also visiting the sharehold house with proposed
purchasers and causing disturbances and nuisance to out
peaceful living. He is also threatening me and my daughter
and warning us to evict from the house at the earliest.
xxxx xxxx xxxx
7. On 20th August 2023 the respondent forcefully took
away my Toyota Fortuner Car(White Pearl Crystal colour)
bearing No.KL-01-CG-7777 which was parked in the
parking space of the sharehold house. Petitioner
informed this matter to the nearby police station
and the police directed the petitioner to get an order
from hon'ble court. It is the vehicle which the
petitioner used for their travelling purpose and use to
pickup and drop the 2nd petitioner from her school.
The respondent did all these things only to harass
and to give fortune to the petitioner."
20. Coming to Section 18 of the DV Act, the same provides
as under:-
"18. The Magistrate may, after giving the aggrieved
person and the respondent an opportunity of being
heard and on being prima facie satisfied that domestic
violence has taken place or is likely to take place, pass
a protection order in favour of the aggrieved person
and prohibit the respondent from
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of
domestic violence;
(c) entering the place of employment of the aggrieved
person or, if the person aggrieved is a child, its school
or any other place frequented by the aggrieved
person;
(d) attempting to communicate in any form,
whatsoever, with the aggrieved person, including
personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or
bank accounts used or held or enjoyed by both the
parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including her
stridhan or any other property held either jointly by
the parties or separately by them without the leave of
the Magistrate;
(f) causing violence to the dependants, other relatives
or any person who give the aggrieved person
assistance from domestic violence;
(g) committing any other act as specified in the
protection order.
21. As per Section 3 dealing with definition of Domestic
Violence Act. Explanation to (I)(iv)(a) provides as under:-
(iv) "economic abuse" includes- (a) "deprivation
of all" or any economic or financial resources to
which the aggrieved person is entitled under any
law or custom whether payable under an order of
a court or otherwise or which the aggrieved
person requires out of necessity including, but
not limited to, house hold necessities for the
aggrieved person and her children, if any,
stridhan, property, jointly or separately owned by
the aggrieved person, payment of rental related to
the shared house hold and maintenance.
22. In this matter, admittedly, the registered owner of the
vehicle is the wife (2nd respondent herein), though the petitioner
husband would allege that he had paid the money towards
purchase of the vehicle. It is submitted by both sides that both of
them have fair employment with lucrative earnings. The case
put up by the petitioner is that on 20.08.2024, the husband
forcefully took away the Car bearing registration No.
KL-01-CG-7777, which was parked at the parking space of the
shared household and he has been attempting to alienate his
share in the shared household also. Further allegation is that he
threatened to evict the wife and child.
23. Coming to the question as to whether, after passing an
interim order under Section 18, another order under Section 18
in a separate application should not be passed except in
accordance with the mandate of Section 25(2) of DV Act, as
discernible from the reliefs provided under Section 18 of DV Act,
the said reliefs of interim nature can be sought for. In case, an
interim relief once granted is confined to a distinct relief which is
in force and the same would require interference by the
Magistrate, the option of the aggrieved person or that of the
respondent is to file an application under Section 25(2) seeking
alteration, modification or revocation of the order so made. It is
provided under Section 25 that a protection order made under
Section 18 shall be in force till the aggrieved person applies for
discharge and if the Magistrate, on receipt of an application from
the aggrieved person or the respondent, is satisfied that there is
a change in the circumstances requiring alteration, modification
or revocation of any order made under this Act, he may, for
reasons to be recorded in writing pass such order, as he may
deem appropriate.
24. Therefore, once an interim order is passed granting a
particular/distinct relief, alteration, modification and revocation
of the same can be resorted to under Section 25(2) of DV Act, but
the same doesn't mean that once a particular/distinct relief is
sought for and granted under Section 18 of DV Act, a distinct and
different relief which is separable from the relief already granted
and not in force would not be asked or allowed without resorting
to Section 25(2) of DV Act.
25. Coming to the matter in issue, here the car owned by
the petitioner herein is sought to be repossessed by an interim
order passed under Section 18 of the DV Act. Naturally, the
question would arise as to whether such a relief is contemplated
under Section 18. Section 18 (a) to (g) deals with different types
of protection orders on alleging act of domestic violence and
Section 18 (e) provides that alienating any assets, operating
bank lockers or bank accounts used to held or enjoyed by both
the parties, jointly by the aggrieved person and the respondent
or singly by the respondent, including her stridhan or any other
property held either jointly by the parties or separately by them
without the leave of the Magistrate. Similarly, Section 18(g)
provides that committing any other act as specified in the
protection order. So grant of relief under Section 18 is to protect
the aggrieved person from the acts of domestic violence.
26. As per Explanation I (iv)(a) of Section 3, "economic
abuse" is defined as extracted hereinabove in Paragraph 21 and
the same includes "deprivation of all" or any economic or
financial resources to which aggrieved person is entitled under
any law or custom whether payable under an order of a court or
otherwise or which the aggrieved person requires out of
necessity including, but not limited to, house hold necessities for
the aggrieved person and her children.
27. Going by the definition, the term 'economic abuse' is
exhaustive and wide enough to address the grievance of the
aggrieved person, including any element of economic or financial
resources to which the aggrieved person is entitled. If so, a
Magistrate dealing with a petition under Section 12 could very
well order the repossession of a vehicle owned and registered in
the name of the aggrieved person to protect her financial
resource without being misused or destroyed, resorting to
Section 18 of the DV Act.
28. In view of the discussion, it is held that orders
impugned do not require any interference. Accordingly, this
Criminal Revision Petition stands dismissed. Interim order
stands vacated.
Registry shall forward a copy of this order to the trial court
for information and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
bpr
