THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. M. C. No. 11 of 2021
Anil Jain,
S/o Babulal Jain,
R/o Sr. No. 121, Khandwe Nagar,
Lohegaon, Pune,
Maharashtra - 411 047.
..... Petitioner
Versus
Rekha Jain,
W/o Anil Jain,
R/o D. P. H. Road,
Near Janta Bhawan,
Gangtok, East Sikkim - 737 101.
.....Respondent
An application under Section 482 of the Code of Criminal
Procedure, 1973.
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Appearance:
Ms. Gita Bista, Ms. Pratiksha Gurung and Ms. Anusha
Basent, Advocates for the Petitioner.
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21st of December, 2021
J U D G M E N T (O R A L)
Bhaskar Raj Pradhan, J.
1. This is an application under Section 482 of the Code of
Criminal Procedure, 1973 (in short Cr.P.C) for quashing of
private complaint case no. 06 of 2021 pending before the Court 2 Crl. M. C. No. 11 of 2021 Anil Jain vs. Rekha Jain
of learned Chief Judicial Magistrate, East Sikkim (for short
learned CJM) and all order passed by the learned CJM in it.
2. Heard Ms. Gita Bista, learned counsel for the petitioner.
3. An application under section 31 of the Protection of
Women from Domestic Violence Act, 2005 (for short DV Act) was
filed by the respondent on 08.04.2021. It complained that
despite the interim order dated 24.09.2019 the petitioner had
failed to make payment of the interim monetary relief and had
made payments only on three occasions. The application also
complained about the petitioner having not wilfully complied
with the order dated 24.09.2019 and handing over the birth
certificate of their minor daughter to the respondent. It was
stated that a total amount of Rs.4,25,000/- was payable but the
petitioner had paid Rs.60,000/- only. It was submitted that the
failure to make the payment was wilful and tantamount to
violation of the protection order passed by the learned CJM.
4. The learned CJM passed an order dated 08.04.2021 on
the said application. The learned CJM noted that no compliance
report had been filed to evidence payment of the interim relief
granted by the order dated 24.09.2019. Relying upon the
judgment of the Madhya Pradesh High Court in Surya Prakash
vs. Smt. Rachna1, the learned CJM was of the view, prima facie,
that non-payment of maintenance as complained by the
respondent was a breach of protection order and section 31 of
1 2018 CRI. L. J. 2545 3 Crl. M. C. No. 11 of 2021 Anil Jain vs. Rekha Jain
the DV Act could be invoked. Thus, the learned CJM listed the
matter on 13.04.2021 for initiating proceedings under section
31 of the DV Act.
5. On 13.04.2021 the learned CJM heard the parties, noted
that despite several reminders the petitioner had failed to
comply with the order passed more than a year ago. The
affirmation of the respondent on affidavit was sufficient to make
out an offence under section 31(1) of the DV Act. The learned
CJM thereafter directed respondent to take necessary steps for
institution of a fresh case for trial of the petitioner for the
offence under section 31(1) of the DV Act.
6. On 22.04.2021, the learned CJM registered private
complaint case no. 06 of 2021, examined the complaint and
found sufficient materials to proceed further and took
cognizance of the offence. Thereafter, non-bailable warrant of
arrest was issued. The subsequent order records the failure to
execute the non-bailable warrant and re-issuance of non-
bailable warrant against the petitioner.
7. The learned counsel for the petitioner submits that the
orders of the learned CJM directing the respondent to file a
private complaint and thereafter issuing non-bailable warrant
against the petitioner is wrong in view of the judgment of
Supreme Court in Rajnesh vs. Neha & Anr.2 as well as the
judgment of the High of Judicature at Allahabad in Manoj
2 (2021) 2 SCC 324 4 Crl. M. C. No. 11 of 2021 Anil Jain vs. Rekha Jain
Anand vs. State of U.P & Anr.3 and the Madras High Court in S.
Jeeva Ashok vs. Kalarani4.
8. The Supreme Court in Rajnesh (supra) was examining the
case in which an application for interim maintenance was filed
under section 125 of the Cr. P.C. The Supreme Court in the
facts of the said case decided to lay down certain guidelines.
Attention was drawn by the learned counsel to the final
directions issued i.e., direction (e) regarding
enforcement/execution of order of maintenance. The direction of
the Supreme Court was for enforcement/execution of orders of
maintenance. It was directed that an order or decree of
maintenance may be enforced under section 28 (A) of the Hindu
Marriage Act, 1956; section 20(6) of the DV Act; and section 128
of Cr.P.C as may be applicable. The order of maintenance may
be enforced as a money decree, including civil detention,
attachment of property, etc. as per the provisions of the Code of
Civil Procedure (for short CPC), more particularly sections 51,
55, 58, 60 read with Order 21 CPC.
9. The High Court of Judicature at Allahabad in Manoj
Anand (supra) examined the criminal revision against the order
passed by the learned Magistrate under section 31 of the DV
Act. By the said order dated 22.01.2011, the learned Magistrate
had proceeded to punish the revisionist under section 31 of the
DV Act for failure to pay the interim maintenance ordered on
3 Criminal Revision No. 635 of 2011 4 Criminal Revision Case (MD) No. 291 of 2014 5 Crl. M. C. No. 11 of 2021 Anil Jain vs. Rekha Jain
20.03.2010, which order had been upheld. The High Court of
Judicature at Allahabad on a perusal of section 18 held that the
order passed for the maintenance or interim maintenance is not
included or covered by section 18 of the DV Act; that there was
no substance in the contention of revisionist that power under
section 31 was not available to the Magistrate to implement the
order of interim maintenance passed under section 23 of the DV
Act and proceed to punish him for the breach thereof. Even
clause (g) of section 18 which includes, any other act as
specified in protection order would not include the order of
interim maintenance.
10. The Madras High Court in S. Jeeva Ashok (supra) was also
of the view, on examination and the decision rendered by the
Rajasthan High Court in Kanchan vs. Vikramjeet Setiya5 and
the Kerala High Court in Kanaka Raj vs. State of Kerala &
Anr.6, that the order passed under section 23 of the DV Act
cannot be construed as the protection order and therefore it is
not enforceable under section 31 of the DV Act.
11. The High Court of Madhya Pradesh in Surya Prakash
(supra) also examined the judgment passed in Kanchan (supra)
and Manoj (supra). It noted that in Kanchan (supra) it was held
that maintenance is provided under section 20 of the DV Act
dealing with monetary relief, therefore, the said order can be
executed in the manner provided under section 125 of Cr.P.C.
5 Crl. L. J. 85 (Rajasthan High Court) 6 Crl. L. J. (NOC) 447 (Ker.) 6 Crl. M. C. No. 11 of 2021 Anil Jain vs. Rekha Jain
The High Court of Madhya Pradesh also examined the phrase
"domestic violence", "economic abuse" and various other
provision including section 31 of the DV Act and concluded that
section 18 of the Act empowers the Magistrate to pass the
protection order in affirmative in favour of the aggrieved person
when he is satisfied that domestic violence has taken place or is
likely to take place. The Magistrate is also competent to prohibit
the respondent from committing any act of domestic violence or
such other acts as mentioned in the said section. The domestic
violence has been defined in section 3 of the Act which includes
causing physical abuse, sexual abuse, verbal and emotional
abuse and economic abuse. "Economic abuse" has been
explained in clause (iv) of Explanation 1 of section 3 of the Act
wherein 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 is an expression of domestic violence. The amount of
maintenance awarded by the Magistrate is an amount which an
aggrieved person requires to meet necessities of life and for
survival. Such amount is not limited to household necessities
but also includes payment of rental related to the shared
household. It includes maintenance as well. Therefore, the order
passed by the Magistrate granting maintenance is an affirmative
order of protection in relation to domestic violence as defined in 7 Crl. M. C. No. 11 of 2021 Anil Jain vs. Rekha Jain
section 3 of the Act. For such violation, the penalty is provided
in section 31 of the Act. It was held that non-payment of
maintenance is a breach of protection order and therefore,
section 31 of the Act can be invoked. It was also held that in
view of the definition of domestic violence, proceedings under
section 31 of the Act would be maintainable.
12. Admittedly, the interim order on maintenance passed by
the learned CJM has not been complied with. On a query, the
learned counsel for the petitioner submits that till date an
approximate amount of Rs. 60,000/- only was paid. It is
admitted that if the interim order passed by the learned CJM
was to be complied with an amount of more than Rs.4,00,000/-
approximately would be payable.
13. The ground for quashing the complaint under inherent
powers of the Court is well settled. Where the uncontroverted
allegations made in the complaint and the evidence collected in
support of the same do not disclose the commission of any
offence and make out a case against the accused the complaint
may be quashed. It is settled that the jurisdiction under section
482 has to be exercised sparingly, carefully and with caution
and only when such exercise is justified. It should not be
resorted to like remedy of appeal or revision. It can be exercised
to prevent abuse of the process of the Court and only when no
other remedy is available to the litigant and not where a specific
remedy is provided by the statute.
8
Crl. M. C. No. 11 of 2021 Anil Jain vs. Rekha Jain
14. On perusal of the petition and documents annexed thereto
including the complaint and the interim orders this Court is of
the view that this is not a fit case to exercise jurisdiction under
section 482 Cr. P.C. The petition is dismissed leaving it open to
the petitioner to seek appropriate remedy before the Courts in
which the matters are pending.
15. Pending interlocutory application also stands disposed.
(Bhaskar Raj Pradhan)
Judge
21.12.2021
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