Keshav Singh and others v. State of U.P. and another), under Section
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:150757 (Sl.No.10) Court No. - 79 Case :- APPLICATION U/S 482 No. - 20824 of 2024
Legal Reasoning
judgment was passed after considering the provisions of Section 28 and 29 of the Domestic Violence Act. He further submits that in view of the law laid down by this Court in the application under Section 482 Cr.P.C. challenging the proceedings under Section 12 of the Domestic Violence Act is not maintainable. Therefore, learned AGA seeks dismissal of the instant application as not maintainable. 5. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. From the record of the case, it is apparent that the opposite party no.2 had filed the application under Sections 12, 18, 19, 20 and 22 of the Domestic Violence Act, which was allowed ex parte vide order dated 16.05.2022 passed by the learned Magistrate and following reliefs were granted: "3- ववपकक ससखयय 01 2000/- रपयक पवतमयह पयसथरयय व पपतक कक 2000/- कक शव सससह रयघव कक यह भक वनररवशत वकयय जयतय हह वक वह आरकश कक वतसथ सक रपयक उसकक आधयरभभत आवशयकतयओस, पढयई रपयक पवतमयह वरवकतसय आवर हकतप परयन वकयय जयनय कप ल वमलयकर 4,000 /- खरयर, भरण-पकषण, रकनय सपवनवशत करर। उक धनरयवश असगकजक कलहणडर कक पवतमयह कक रसवव तयरकख तक रकय हकगक। 4- ववपककगण ससखयय-01 सकधन वयपस न करनक कक एवज मर ववपककगण एक मपशत 30,000/- ( कक आरकवशत वकयय जयतय हह वक वयवरयय शकमतक ममतय कय समस तकस हजयर) सकधन वयपस कररगक/ लगययत 03 रपयक वमलकर अरय कररगक। 5- ववपककगण ससखयय-01 लगययत-03 कक अनरर मयनससक ससतयप व भयवनयतमक कष कक कक आरकवशत वकयय जयतय हह वक वह आरकश कक वतसथ सक रक मयह पनदह हजयर) रपयक सलयक एक मपशत 15,000/- ( पवतकर कक रप मर पयसथरनक ममतय कक अरय करर 6- ववपककगण ससखयय-01 लगययत 03 कक यह भक वनररवशत वकयय जयतय हह वक वह आरकश कक वतसथ सक 02 मयह कक भकतर पयसथरनक कक कवतपभवतर कक रप मर परयन करर। आरकश कक एक- एक पवत वयवरयय, सजलय सरसकण असधकयरक अलकगढ एवस समबननधत थयनयधयक कक वननशपलक परयन करययक जययक। ववपककगण कक आरकश कक पवत जररयक पसजककक त डयक पकवषत कक जययक। सजलय ससरकण असधकयरक अलकगढ एवस समबननधत थयनयधयक कक वनररवशत वकयय जयतय हह वक आरकश कक अनपपयलन कक रशय मर आवकरन वकयक जयनक पर आरकश कय अनपपयलन ववसधनपसयर सपवनवशत करययर।" 6. Against the aforesaid ex parte order datdd 16.05.2022, the applicants herein had filed an appeal under Section 29 of the Domestic Violence Act on 20.02.2023 along with an application for stay of operation of the order passed by the Magistrate. Vide impugned order dated 12.03.2024, the appellate court has admitted the appeal and has stayed the operation of the order of the Magistrate subject to deposit of 50% of the amount awarded by the learned Magistrate, against which the instant application has been filed. The judgment of Apex Court in Shalu Ojha (supra), which has been highly relied upon by learned counsel for the applicant to contend that the application under Section 482 is maintainable. The relevant portion, which has been relied upon by learned counsel for the applicant reads as under: "30. We presume (we emphasize that we only presume for the purpose of this appeal) that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and conditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does not have the power to grant interim orders during the pendency of the appeal, the Sessions Court ought not to have stayed the execution of the maintenance order passed by the Magistrate. Since the respondent did not comply with such conditional order, the Sessions Court thought it fit to dismiss the appeal Challenging the correctness of the said dismissal, the respondent carried the matter before the High Court invoking Section 482 of the Code of Criminal Procedure, 1973 and Article 227 of the Constitution." 7. In the considered opinion of this Court, the aforesaid observations are only the narration of facts and does not lay down any law with regard to the maintainability of the application under Section 482 Cr.P.C. So far as the provisions of Sections 28 and 29 of the Domestic Violence Act are concerned, that have been well considered by the Co-ordinate Bench of this Court in Smt. Suman Mishra (supra) and after considering the entire provisions as well as also considering the judgment of Apex Court in Kamatchi vs. Lakshmi Narayanan, (2022) 15 SCC 50 as well as the judgment of the Madras High Court in Dr. P.Pathmanathan and others vs. Smt. V. Monica and another, 2021 SCC Online Mad 8731 has held that the application under Section 482 Cr.P.C. challenging the proceedings under Section 12 of the Domestic Violence Act is not maintainable. 8. In view thereof, since the Co-ordinate Bench of this Court has held that the application under Section 482 Cr.P.C. challenging the proceedings under Section 12 of the Domestic Violence Act is not maintainable, therefore, this Court has no good reason to entertain the instant application and the same is accordingly, dismissed. Order Date :- 17.9.2024 Ashish Pd. (Anish Kumar Gupta,J.)
Arguments
Applicant :- Keshav Singh Raghav And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Byas Kumar Prasad,Pradeep Kumar Keshri Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J. 1. Heard Sri Vyas Kumar Prasad, learned counsel for the applicants and Sri Rajeev Kumar Singh, learned AGA for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 12.03.2024 passed by the In-charge Session Judge, Aligarh as well as the entire criminal proceeding of Criminal Appeal No. 46 of 2024 (Keshav Singh and others vs. State of U.P. and another), under Section 29 of the Protection of Women from Domestic Violence Act, 2005, P.S. Jawan, District Aligarh. 3. Learned counsel for the applicants relying upon the Section 28 of the Domestic Violence Act submits that the application under Section 482 Cr.P.C. is maintainable against the order passed under Section 12 of the Domestic Violence Act. He has further relied upon the Apex Court judgment in Shalu Ojha vs. Prashant Ojha, AIR 2015 Supreme Court 170 and relying upon para 30 of the said judgment, he submits that the application under Section 482 Cr.P.C. is maintainable against the orders passed by the Magistrate under Sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act and further orders passed in the appeal under Section 29 of the Domestic Violence Act. 4. Per contra, learned AGA submits that the judgment of Shalu Ojha (supra) relied upon by the learned counsel for the applicant does not lay down any law and in para-30 of the said judgment, which has been highly relied upon by the learned counsel for the applicant, only narration of facts have been made by the Apex Court, which does not mean any law laid down by the Apex Court. Learned AGA has further raised an objection that in view of the judgement and order dated 31.07.2024 passed by a Co-ordinate Bench of this Court in Application u/S 482 Cr.P.C. No. 6975 of 2013 (Smt. Suman Mishra vs. The State Of U.P And Ors.), wherein it has been categorically held that the application under Section 482 Cr.P.C. is not maintainable against the proceedings initiated under the provisions of the Domestic Violence Act. Learned AGA further submits that the aforesaid