Thursday, 22 October 2015

Whether issue of limitation provided under S 468 of crpc is applicable to domestic violence proceeding?

So far as issue of limitation provided under section 468 CrPC is concerned, it has no application to section 12 of the Act of 2005 as it is not a complaint and does not provide punishment. Section 12 of the Act of 2005 provides for an application by the aggrieved person or even by the protection  officer. The petitioners have wrongly construed it to be a complaint so as to attract section 468 CrPC. In view of above, even second argument is not legally tenable. 
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
ORDER 
SB Cr Misc Petition No.4452/2013
Pankaj Sharma & anr versus Smt Priyanka Sharma 
Dated;1.4.2015  
HON'BLE MR. JUSTICE MN BHANDARI

REPORTABLE
Citation; 2015 CRLJ 3924

By this criminal misc. petition, a challenge is made to the order dated 13.11.2013 and 17.5.2013. Vide order dated 17.5.2013, application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act of 2005') was allowed followed by dismissal of the appeal vide order dated 13.11.2013. The petitioner No.1 has been directed to pay 60% of the amount of his gross salary to the non-petitioner. 

Learned counsel for petitioners submits that an application under section 12 of the Act of 2005 was entertained for the incidence prior to the Act of 2005, though it has not been given retrospective effect. The application was not maintainable on the aforesaid ground. He placed reliance on the judgments of this court  wherein the Act of 2005 was not found to be retrospective. 

The other argument is regarding limitation as provided under section 468 CrPC. A reference of the judgment of the Hon'ble Supreme Court has been given wherein the complaint under section 12 of the Act was not held maintainable, if barred by limitation, thus on the aforesaid ground also, challenge is made. 

It is lastly contended that the maintenance is highly excessive as 60% of the gross salary has been awarded in favour of the non-petitioner. If, at all, maintenance is payable, it has to be reasonable and  determined on lump sum amount and, if not, then on the net salary, instead of gross salary. The impugned order deserves to be quashed even on that count also. 

Per contra, learned counsel for non-petitioner submit that the application under section 12 of the Act of 2005 is maintainable even for an event took place before coming into force the Act of 2005.  Reference of the judgment of the Hon'ble Supreme Court on the issue has been given. 

So far as issue of limitation provided under section 468 CrPC is concerned, it has no application to section 12 of the Act of 2005 as it is not a complaint and does not provide punishment. Section 12 of the Act of 2005 provides for an application by the aggrieved person or even by the protection  officer. The petitioners have wrongly construed it to be a complaint so as to attract section 468 CrPC. In view of above, even second argument is not legally tenable. 

Coming to the facts, it is submitted that the petitioner No.1 is alone having no dependent. His other family members are in service, thus looking to the aforesaid and the fact that the respondent is to support herself and a baby girl, reasonable view has been taken by the court below while passing the impugned order. The order contains sufficient reasons for award of 60% of the gross salary towards maintenance. In view of above, interference in the impugned orders may not be caused even on merit. 

I have considered rival submissions of the parties and perused the record. 

The challenge to the impugned orders has been made in reference to limitation provided under section 468 CrPC. For ready reference, aforesaid provision is quoted hereunder -

“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 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.

(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.”

The provision quoted above provides for cognizance of the offence within period of limitation given therein. The provision aforesaid refers to duration of the punishment to determine limitation. To invoke section 468 CrPC, not only cognizance of the offence is required but it should refer to the punishment, on conviction, so as to determine the limitation. Section 12 of the Act of 2005 does not provide it to be a complaint requiring cognizance of the offence or duration of punishment while passing the order. In absence of the aforesaid, section 468 CrPC cannot apply to the present case. 

It is true that the provisions of the CrPC would apply to the proceedings but it can be to the extent  made applicable and cannot go blindly,  specially for a provision, which cannot be applied with any stretch of imagination. If section 468 CrPC is applied, question would be as to  what should be the limitation for taking cognizance. Whether it should be six months, a year or  three years because it depends on the sentence provided for respective offence. When no sentence has been provided, how the limitation would be determined. The aforesaid could not be answered by the learned counsel for petitioners. 

A reference of the judgment of Hon'ble Supreme Court in the case of “Inderjit Singh Grewal versus State of Punjab & anr” [2012 CrLR(SC) 16] has been given with specific reference of para 24, which is quoted hereunder for ready reference -

“24.Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this Court in Japani Sahoo Vs. Chandra Sekhar Mohanty, AIE 2007 SC 2762; and Noida Entrepreneurs Association Vs. Noida & Ors., (2011) 6 SCC 508.”

Perusal of the para does not reveal that an application under section 12 of the Act of 2005 would be considered to be a complaint and  limitation provided under section 468 CrPC would apply.  In fact, the issue before the Apex Court was different than what has been referred herein. The issue taken up by the court was formulated in para 2 of the judgment itself i.e. as to whether judgment and decree of a competent civil court can be declared null and void in collateral proceedings, that too, in criminal proceedings. The issue of limitation was not raised and determined by the court. 

It is settled law that any observation against the statutory provision is  to be taken per incuriam though no observation contrary to the statutory provision exist in the judgment supra. 

Section 468 CrPC has no application to the application under section 12 of the Act of 2005. The view aforesaid has been taken by the Bombay High Court in the case of  “Shaikh Ishaq Budhanbhai versus Shayeen Ishaq Shaikh & ors”, [2014(10) RCR (Criminal) 640/ 2013(1) Crimes 222 and applies to this case. 

The question regarding retrospective effect of the Act of 2005 has been raised. Reference of the judgment of this court in the case of “Praveen Bairwa versus Smt Aarti & ors”, [2012(2) CrLR (Raj) 822] has been given apart from the judgment in the case of “Hema @ Hemlata (Smt) & anr versus Jitender & anr” [2009(1) CrLR(Raj) 291]. In both the judgments, the Act of 2005 was held to be prospective in nature. Unfortunately, learned counsel for the parties appearing in those cases, did not refer the judgment of the Hon'ble Supreme Court, wherein, similar issue was decided. It was in the case of “VD Bhanot versus Savita Bhanot”, [AIR 2012 SC 965].  Para 5 and 8 of the said judgment are reproduced hereasunder -

“5. Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. After considering the constitutional safeguards under Article 21 of the Constitution, vis-`-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the statement of objects and reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that the Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. The learned Judge, accordingly, set aside the order passed by the Additional Sessions Judge and directed him to consider the appeal filed by the Respondent wife on merits.

8. The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.”

In view of the judgment of the Hon'ble Supreme Court on the issue, the judgments of this court cannot be relied. Thus, second issue raised by learned counsel for petitioners cannot be accepted. 

The question now comes as to whether maintenance so awarded is excessive or adequate. The maintenance awarded to the non-petitioner is 60% of the gross salary of the petitioner No.1. It is on the ground that petitioner is alone having other family members in government service. As against the aforesaid, non-petitioner being single with a baby girl. The justification seems to be there but it cannot be taken to be proper by awarding 60% of the gross salary. It would mean that whatever deductions would be made in the salary, it has to be borne by the petitioner No.1. If that is allowed, the maintenance would be more than 60% to the net salary of the petitioner No.1. The aforesaid cannot be said to be reasonable and, otherwise also, even 60% of the gross salary is excessive. The petitioner No.1 is stated to be a clerk and presently drawing salary of Rs.17,500/- approximately. He is not an officer getting huge salary so as to survive with 40% thereof. It is true that survival of non-petitioner would also be difficult, if a meagre amount is given, thus a reasonable view is to be taken  for survival to both the parties. 

Taking into consideration over all facts and circumstances of the case where the petitioner has to survive and at the same time non-petitioner is to survive with a baby girl, I deem it proper to modify the impugned order of maintenance, which, in my opinion, is excessive. Accordingly, criminal misc. petition is disposed of with modification that instead of 60% of the gross salary, petitioner No.1 would pay 40% of the gross salary as maintenance to the  non-petitioner from today. While doing so, proper care is taken to statutory deductions made from the salary apart from other aspects. With the aforesaid modification, impugned order is maintained. The parties would further be at liberty to settle the dispute inter se, on lump sum amount, if they can do it. Record be sent back immediately.

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