G.Jaganath v. Smt. Mala Jain & Ors.

Order

03-09-2010 Between: G.Jaganath ..Petitioner

1. Smt. Mala Jain and another ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.4357 of 2007 Oral order: This petition under Section 482 Cr.P.C. is to quash the Crime No.82 of 2007 registered for the offence under Sections 506 and 504 IPC by the Kachiguda Police Station, Hyderabad.

The first respondent/complainant lodged a complaint with the Chairman, Permanent Lok Adalat stating that two days prior to the date of report, the petitioner along with two others (accused) came to her house and threatened her with dire consequences by using filthy language and further threatened to kidnap her and her children and also warned that they will come again after 5 P.M. on 28-03-2007. The learned Chairman made an endorsement on the compliant in Dis.No.127/2007, dated 28-03-2007 and forwarded the same to PS Kachiguda, Hyderabad under proviso to Section 5 of the Protection of Women from Domestic Violence Act, 2005 for investigation into cognizable offences under Sections 506 and 504 IPC and necessary protection to the victim and send a line in reply about the action taken in the matter for information. On forwarding the same the Kachiguda police registered a case in Cr.No.82 of 2007 under Section 5 of the Domestic Violation Act, 2005 and Sections 506 and 504 IPC. Questioning the same the present criminal petition is filed. Learned counsel for the petitioner contends that both the offences are non-cognizable offences; that the police cannot investigate into the same without there being an order of the Magistrate for registering the same. Therefore, registration of the complaint for the said offence is liable to be quashed. On the other hand, learned counsel for the 1st respondent/complainant contends that the Chairman, Permanent Lok Adalat forwarded the compliant to the Station House Officer, Kachiguda Police station, on which basis crime was registered and initiated proceedings in view of Section 460 Cr.P.C. Therefore, the same cannot be quashed at the initial stage. Admittedly, the complaint allegations do not constitute any domestic violence. The word “domestic violence” has been defined under Section 2(g) of the Protection of Women from Domestic Violence Act, 2005 which says that “domestic violence” has the same meaning as assigned to it in Section 3. Section 3 the Protection of Women from Domestic Violence Act, 2005 defines “domestic violence”: any act, omission or commission or conduct of the respondent shall constitute domestic violence as enumerated therein constitute domestic violence. The word ‘respondent’ has been defined under section 2(q) the Protection of Women from Domestic Violence Act, 2005, which means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the Protection of Women from Domestic Violence Act, 2005. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. In view of the same, the endorsement made by the Chairman, Permanent Lok Adalat and forwarding the representation to the Station House Officer, Kachiguda Police Station under proviso to Section 5 of the Protection of Women from Domestic Violence Act, 2005 and also describing the offence as cognizable offence is total non-application of mind. Admittedly, the offences under Sections 504 and 506 IPC are non-cognizable and compoundable. There is no order of the Magistrate to investigate into the case for enabling the police to register the crime. Sub-section (5) of Section 19 of the Legal Services Authority Act, 1987 prescribes a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in a respect of- (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised. Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. Section 22(c) (1) deals with cognizance of cases by Permanent Lok Adalat. Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute. Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law. Sub-Section (2) of Section 22(c) prohibits invocation of jurisdiction of any court in the same dispute after an application is made under sub-section (1) to the Permanent Lok Adalat. Sub-section (3) and (7) of Section 22(c) deals with the procedure to be followed for arriving settlement on receipt of written statement or counter in opposition of the application filed before it and assist the parties in reaching an amicable settlement to the dispute and passes an award in terms thereof and furnish copy of the same to each of the parties concerned. Under Regulation 32 (2) of the A.P. State Legal Services authority Regulations, 1996, the Secretary of the District Authority organizing the Lok Adalat shall constitute Benches of the Lok Adalats, each Bench comprising two or three members (i) a sitting or retired Judicial Officer; (ii) a senior member of the Local Bar and (iii) a social worker. Regulation 36(2) deals with functioning of the Lok Adalat. The Secretary of the High Court Committee or the District Authority or the Chairman of the Taluk Committee, as the case may be, prepare a ‘cause list’ for each Bench of the Lok Adalat and intimate the same to all concerned atleast two days before the date of the Lok Adalat. Regulation 38 deals with the procedure for effecting compromise or settlement at Lok Adalat. Regulation 39 deals with the Award to be drawn up and the parties to the dispute shall be required to affix their signatures or thumb impression, as the case may be, on the award of the Lok Adalat. Every Bench of the Lok Adalat may evolve its own procedure for conducting the proceedings before it and shall not be bound by either the Civil Procedure Code or the Evidence Act or the Code of Criminal Procedure subject, however, to the principles of natural justice. The scheme of the Act as envisaged above, only authorises the Permanent Lok Adalat to settle the dispute where the offence is compoundable, on party applying to compound the offence, it can record compounding of the offence, passes an award to the said effect. The scheme, as referred to above, do not indicate referring the complaint by the Chairman of the Permanent Lok Adalat directly to the police in exercise of powers under Section 155(2) of the Code of Criminal Procedure. He may at the most call for the parties whether they are agreeable to compound the offence or not. If the parties are not agreeable to compound the offence before the Lok Adalat, he has to refer the compliant to the concerned Magistrate. On such reference being made, the Magistrate is at liberty to follow the procedure under Section 190 Cr.P.C. Under sub-section (2) of the Section 155 Cr.P.C., the police officer is prohibited to investigate a non-cognizable case without the order of a Magistrate having power to try such case and commit the case for trial. The police officer on receipt of such order exercise the same powers in respect of investigation as an officer in charge of a police station may exercise in a cognizable case. Admittedly, in the absence of any order referring the matter to the police under sub-section (2) of Section 155 Cr.P.C., the police cannot register the crime and investigate into the same. The present case squarely falls under illustration (2) enumerated by the Supreme Court in STATE OF HARYANA v. BHAJAN LAL[1], which reads as under: “(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. “ In view of the same, the proceedings initiated against the petitioner in Cr.No.82 of 2007 of Kachiguda Police Station, Hyderabad are hereby quashed. The Criminal Petition is accordingly allowed. _________________ A.GOPAL REDDY, J. 03-09-2010 Murthy [1] 1992 Supp (1) SCC 335 = AIR 1995 SC 601