Patna High Court
Dinesh Prasad Sinha And Ors vs State Of Bihar And Anr on 29 March, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.14656 of 2015
Arising Out of PS. Case No.-2678 Year-2014 Thana- BHOJPUR COMPLAINT CASE
District- Bhojpur
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1. Dinesh Prasad Sinha Son of Late Dharam Nath Sahay,
2. Indu Sinha, Wife of Shri Dinesh Prasad Sinha,
3. Niraj Kumar Srivastava Son of Dinesh Prasad Sinha,
4. Manish Kumar, Son of Dinesh Prasad Sinha,
5. Lovely Kumari, Daughter of Dinesh Prasad Sinha, All residents of village -
Atimi, Police Station - Navanagar, District - Buxar, Petitioner No. 3
presently posted at State Bank of Patiyala, Regional Office, Jalandhar
Punjab.
... ... Petitioner/s
Versus
1. State Of Bihar
2. Vandana Srivastava, Wife of Niraj Kumar Srivastava, Daughter of
Kamleshwar Prasad Srivastava, at present residing at Mohalla New Shital
Tola, Ara, Police Station Nawada, District - Bhojpur.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. K.N. Chaubey, Sr. Adv.
Mr.Gopal Swaroop Dubey, Advocate
For the State : Mr.Jitendera Kumar Singh, APP
For the O.P. : Mr. Ravindra Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
Date : 29-03-2023
Heard Mr. K. N. Chaubey, learned Senior Counsel
for the petitioners and Mr. Rabindra Kumar Singh for the
opposite party no.2 as also Mr. Jitendra Kumar Singh, learned
APP for the State.
2. The present petition has been preferred for
quashing of the Complaint Case No. 2678 (C) of 2014 filed
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
before the learned Chief Judicial Magistrate, Bhojpur at Ara
under sections 12, 18, 19, 20, 21 and 22 of the Protection of
Women from Domestic Violence Act, 2005 (henceforth for short
'the 2005 Act').
3. As per the complaint, the opposite party no.2
Vandana Srivastava was married to Niraj Kumar Srivastava
(petitioner no.3) on 12.6.2011. It has been alleged that at the
time of 'Sindur Dan' itself, demand of a four wheeler or Rs. 5
lakh was made. As already Rs. 12 lakh was given and further
ornaments worth of Rs. 2 lakh was also presented, her father
was unable to pay the amount and when they again created the
same situation at the time of 'Bidai', her father finally relented
and assured that the amount will be given.
4. However, as her father failed to pay the amount,
she was always tortured for dowry. In between, a female child
was born on 25.4.2012 at Jalandhar where her husband was
posted. Further, she was regularly abused/assaulted by her
husband and the allegation is that on 1.6.2012, her husband and
father-in-law forcibly put her in a car and made her leave in
laws' place for her parents home. Although, the complainant
tried her level best to compromise the matter, as they did not
relented, the FIR vide Ara-Nawada P.S. Case No. 326 of 2012
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
was lodged followed by the present complaint petition under
'the 2005 Act'.
5. Learned Senior Counsel, Mr. K. N. Chaubey,
raised technical points in the matter. According to him, from the
complaint petition, it is clear that the alleged assault took place
on 1.6.2012 whereas the complaint was filed on 21.11.2014
under 'the 2005 Act'. He submits that the maximum period of
punishment is one year and as the petition was filed beyond one
year, the same was not maintainable in the light of Section 468
of the Cr.P.C.. He has drawn attention of this Court to section
468 of the Cr.P.C. which reads as follows:
468. Bar to taking cognizance
after lapse of the period of
limitation.
(1) Except as otherwise provided
elsewhere in this Code, no Court
shall take cognizance of an
offence of the category specified
in sub-section (2), after the
expiry of the period of
limitation.
(2) The period of limitation shall
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
be- (a) six months, if the offence
is punishable with fine only,
(b) one year, if the offence is
punishable with imprisonment
for a term not exceeding one
year;
(c) three years, if the offence is
punishable with imprisonment
for a term exceeding one year
but not exceeding three years.
2[(3) For the purposes of this
section, the period of limitation,
in relation to offences which
may be tried together, shall be
determined with reference to the
offence which is punishable with
the more severe punishment or,
as the case may
be, the most severe punishment.]
6. He as such submits that the complaint preferred by
the opposite party no.2 is in the teeth of Section 468 of the
Cr.P.C. and thus the same is fit to be quashed.
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
7. The second point taken by the learned Senior
Counsel is that as the entire occurrence took place in Jalandhar
(Punjab), under no circumstances, the complaint could have
been lodged at Bhojpur at Ara and on this account also, the
order needs interference.
8. In support of his point of filing complaint beyond
the period of limitation is impermissible, he has drawn attention
of this Court to an order of Patna High Court in the case of
Santosh Kumar Vs. The State of Bihar and Anr. reported in
2017(4) BBCJ 163 which read as follows:
"Code of Criminal Procedure, 1973- Section
482 r/w Sections 18, 19, 20 and 27 of the
Domestic Violence Act- Complaint filed in
the Present case after the expiry of the
period of limitation- Complaint under the
D.V. Act be filed only within a period of one
year from the date of incident in view of the
provisions of Section 28 and 32 of the D.V.
Act-Dissolution of marriage filed by the
petitioner for dissolution of marriage was
allowed-Complaint under the D.V. Act filed
after more than four months of passing of the
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
decree of divorce- Complaint under the D.V.
Act by the ex-wife after divorce not
maintainable in law- Complaint and the
entire proceeding including the impugned
order quashed."
9. He as such submits that the present petition be
allowed.
10. Per contra, Mr. Rabindra Kumar, learned Counsel
who represents the O.P. No. 2, on the point of jurisdiction has
drawn attention of this Court to Section 2(i) of 'the 2005 Act'
which read as follows:
"2. Definitions.--In this Act,
unless the context otherwise require,-
(i) "Magistrate" means the
Judicial Magistrate of the first class,
or as the case may be, the
Metropolitan Magistrate, exercising
jurisdiction under the Code of
Criminal Procedure, 1973 (2 of 1974)
in the area where the aggrieved
person resides temporarily or
otherwise or the respondent resides or
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
the domestic violence is alleged to
have taken place;"
11. He has further drawn attention to this Court to
Section 27 which read as follows:
27. Jurisdiction (1) The court of Judicial
Magistrate of the first class or the
Metropolitan Magistrate, as the case may
be, within the local limits of which -
(a) the person aggrieved permanently or
temporarily resides or carries on business or
is employed; or
(b) the respondent resides or carries on
business or is employed; or
(c) the cause of action has arisen, shall be
the competent court to grant a protection
order and other orders under this Act and to
try offences under this Act (2) Any order
made under this Act shall be enforceable
throughout India.
12. Learned counsel for the O.P. No. 2 has drawn
attention of this Court to a case of Shyamlal Devda vs
Parimala reported in 2020 Criminal Law Journal 2114 with
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
specific reference to paragraph 10 which is on the point of
jurisdiction.
13. In that case, the husband was residing at Chennai
while the lady was with her parents at Bengaluru. Further, as the
lady refused to join her matrimonial home, the appellant
preferred petition under Section 9 of the 'Hindu Marriage Act' of
restitution of conjugal rights before the Family Court, Chennai.
Thereafter, the respondent lady claiming herself to be a victim
of domestic violence seeking protection under Section 18 and
residence order under Section 19 as also monetary relief under
Section 20 of 'the Act' preferred petition before the Court of
learned Metropolitan Magistrate at Bengaluru against her
husband, in- laws and other relatives who were residing in
different parts of the country viz. Chennai, Rajasthan and also in
Gujarat.
14. The learned Magistrate, Bengaluru vide an order
dated 16.04.2015 issued notice to the appellants by holding that
the Court has jurisdiction to entertain the petition filed by the
respondent under Section 27 of Domestic Violence Act.
15. Aggrieved, the appellants preferred petition under
Section 482 Cr.P.C. before the High Court seeking quashing of
the entire proceeding which was dismissed by holding that the
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
complaint filed by the respondent giving instances of domestic
violence at Chennai, Rajasthan or Gujarat have been narrated
and therefore, the complaint filed in Bengaluru is maintainable
under Section 27 of the Domestic Violence Act.
16. Still aggrieved, the appeal was preferred before
the Hon'ble Apex Court, which in para 10 observed as follows:
10. Insofar as the jurisdiction of the
Bengaluru Court, as pointed out by the High
Court, Section 27 of the Protection of
Women from Domestic Violence Act, 2005
covers the situation. Section 27 of the Act
reads as under:
27. Jurisdiction-
(1) The court of Judicial Magistrate of the
first class or the Metropolitan Magistrate, as
the case may be, within the local limits of
which-
(a) the person aggrieved permanently or
temporarily resides or carries on business or
is employed; or
(b) the respondent resides or carries on st
business or is employed; or
(c) the cause of action has arisen, shall be 5-
the competent court to grant a protection or-
Es der and other orders under this Act and
to try offences under this Act
(2) Any order made under this Act shall be
enforceable throughout India.
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
A plain reading of the above provision makes
it clear that the petition under the Domestic
Violence Act can be filed in a court where
the "person aggrieved" permanently or
temporarily resides or carries on business or
is employed. In the present case, the
respondent is residing with her parents
within the territorial limits of Metropolitan
Magistrate Court, Bengaluru. In view of
Section 27(1)(a) of the Act, the Met-
ropolitan Magistrate court, Bengaluru has
the jurisdiction to entertain the complaint
and take cognizance of the offence. There is
no merit in the contention raising objection
as to the jurisdiction of the Metropolitan
Magistrate Court at Bengaluru.
17. A plain reading of the order of the Hon'ble Apex
Court, it is clear that the lady herein has rightly filed the case at
Ara and the same does not need any interference.
18. This Court has taken note of the different sections,
(as submitted) of 'the 2005 Act' and a conjoint reading of the
two sections of 'the 2005 Act' clearly shows that the makers of
'the Act' have taken great care in incorporating the aforesaid
sections to the benefit of the women for which it was envisaged.
It is further clear that the aggrieved person residing temporarily
or otherwise at the place of residence or where the violence has
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
been taken place can file a complaint and thus so far as the
jurisdictional part is concerned, the O.P. No. 2 had the option of
lodging the complaint either at Jalandhar or Bhojpur (Ara)
where she is staying with her parents and thus that cannot be
questioned.
19. Learned Counsel submits that section 468 of the
Cr.P.C. puts a bar on taking cognizance after lapse of period of
limitation. However, in the present case, Section 468 of the
Cr.P.C. will not come into play as it is not the case of the
petitioners that cognizance has been taken in the matter and/or
they are challenging the cognizance order rather only complaint
was filed on which the petitioners were put on notice.
20. On the limitation point learned counsel for the
informant brought another judgment of the Hon'ble Apex Court
in Kamatchi vs Lakshmi Narayanan reported in AIR 2022
Supreme Court 2983 and has drawn attention of this Court to
paragraph 15 which read as follows:
15. Let us now consider the
applicability of these principles to
cases under the Act. The
provisions of the Act contemplate
filing of an application under
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
Section 12 to initiate the
proceedings before the concerned
Magistrate. After hearing both
sides and after taking into account
the material on record, the
Magistrate may pass an
appropriate order under Section
12 of the Act. It is only the breach
of such order which constitutes an
offence as is clear from Section 31
of the Act. Thus, if there be any
offence commit- ted in terms of
the provisions of the Act, the
limitation prescribed under
Section 468 of the Code will apply
from the date of commission of
such offence. By the time an
application is preferred under
Section 12 of the Act, there is no
offence committed in terms of the
pro- visions of the Act and as such
there would never be a starting
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
point for limitation from the date
of application under Section 12 of
the Act. Such a starting point for
limitation would arise only after
there is a breach of an order
passed under Section 12 of the
Act.
21. He has further taken this Court to paras 19 and 20
of the said order which again read as follows:
"19. In the first instance, it is,
therefore, necessary to examine
the areas where the D.V. Act or
the D.V. Rules have specifically
set out the procedure thereby
excluding the operation of Cr.PC,
as contemplated under Section
28(1) of the Act. This takes us to
the D.V. Rules. At the outset, it
may be noticed that a "complaint"
as contemplated under the D.V.
Act and the D.V. Rules is not the
same as a "complaint" under
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
Cr.P.C. A complaint under Rule
2(b) of the D.V. Rules is defined as
an allegation made orally or in
writing by any person to a
Protection Officer. On the other
hand, a complaint, under Section
2(d) of the Cr.PC. is any
allegation made orally or in
writing to a Magistrate, with a
view to his taking action under the
Code, that some person, whether
known or unknown has com-
mitted an offence. However, the
Magistrate dealing with an
application under Section 12 was
decided of the Act is not called
upon to take action for the
commission of an offence. Hence,
what is contemplated is not a
complaint but an application to a
Magistrate as set out in Rule 6(1)
of the D.V. Rules. A complaint
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
under the D.V. Rules is made only
to a Protection Officer as
contemplated under Rule 4(1) of
the D.V. Rules.
20. Rule 6(1) sets out that an
application under Section 12 of
the Act shall be as per Form II
appended to the Act. Thus, an
appli- cation under Section 12 not
being a complaint as defined
under Section 2(d) of the Cr.P.C.
the procedure for cognizance set
out under Section 190(1)(a) of the
Code followed by the procedure
set out in Chapter XV of the Code
for taking cognizance will have no
applilcation to a proceeding
under the D.V. Act. To reiterate,
Section 190(1)(a) of the Code
and the procedure set out in the
subsequent Chapter XV of the
Code will apply only in cases of
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
complaints, under Section 2(d) of
Cr Cr.P.C, given to a Magistrate
and not to an application under
Section 12 of the Act."
22. Finally, the learned Counsel took this Court to
para 22 of the order which read as follows:
22. Lastly, we deal with the
submission based on the decision
in Adalat Prasad. The ratio in that
case applies when a Magistrate
takes cognizance of an offence
and issues process, in which event
instead of going back to the
Magistrate, the remedy lies in
filing petition under Section 482
of the Code. The scope of notice
under Section 12 of the Act is to
call for a response from the
respondent in terms of the Statute
so that after considering rival
submission, appropriate order can
be issued. Thus, the matter stands
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
on a different footing and the
dictum in Adalat Prasad 4 would
not get attracted at a stage when a
notice is issued under Section 12
of the Act.
23. Again, the conjoint reading of the three
paragraphs, which the learned counsel for the informant has
drawn attention to clearly shows that when the learned
Magistrate took cognizance of an offence and issued process,
only then, the Section 482 of Cr.P.C. can be invoked.
24. However, in the present case, when only notice
under 'the 2005 Act' was issued with direction to submit
response so that an appropriate order could be passed, the same
stands on different footing and the order passed in Santosh
Kumar vs. The State of Bihar and Anr. (supra) cited by the
learned Senior Counsel for the petitioner cannot come to his
rescue.
25. Thus, this Court holds that when only notice was
issued on the complaint preferred by the opposite party under
'the 2005 Act' seeking their response and no cognizance order
was passed, the limitation under Section 468 of the Cr.P.C.
cannot come into picture/will be applicable.
Patna High Court CR. MISC. No.14656 of 2015 dt.29-03-2023
26. Further, under 'the 2005 Act' the aggrieved lady do
have the liberty to file complaint where she permanently or
temporarily resides or carries on business or is employed. In
sum, her right to complain has not been limited to the place of
occurrence.
27. Considering the aforesaid facts, the rival
submissions as also the cases cited by the respective parties, this
Court has to go with the views expressed by the Hon'ble Apex
Court as recorded in above paragraphs and in that view of the
matter, the petition preferred for quashing of the entire
proceeding of Complaint Case No. 2678 (C) of 2014 pending
before the learned Judicial Magistrate, Ara under 'the 2005 Act'
needs no interference.
28. The petition as such preferred under Section 482
of the Cr.P.C. is devoid of merit and is accordingly rejected.
(Rajiv Roy, J)
Ravi/-Kiran
AFR/NAFR AFR
CAV DATE 21.3.2023
Uploading Date 29.03.2023
Transmission Date
