Mayank Gupta and Others vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare , J.—Heard learned counsel for the applicants, Sri Shishir Tandon, learned counsel who has put in appearance on behalf of opposite party no.2 and the learned AGA for the State-respondent.

The present 482 Cr.P.C. petition has been filed for quashing the proceedings of complaint case no.1335 of 2011, under Sections 12, 18, 19, 20, 22 & 23 of the Protection of Women from Domestic Violence Act, 2005, pending before the Judicial Magistrate-I, Court No.9 Jhansi.

Learned counsel for the applicants contends that the opposite party no.2 had also initiated proceedings against the applicants under Sections 498-A, 323, 504, 506 IPC and , in case crime no.2689 of 2007, which was challenged by the applicants by filing 482 Application No.22648 of 2010 before this Court, which matter was referred to the Mediation Centre of this Court which mediation had failed between the parties therefore, the matter was taken up and it was finally disposed of with the direction that the applicant may file an application for discharge which may be considered as per the directions contained in the said order, copy of the said order has been filed as Annexure-12 to the affidavit accompanying the present application and till decision of the discharge application, coercive action be kept in abeyance. It is contended that the proceedings under the charged sections was initiated by the opposite party no.2, in spite of the fact that the American Court had granted decree of divorce in favour of applicant no.1, who is pursuing higher studies in America. Learned counsel for the applicants contends that by the order dated 7.12.2008, Judicial Magistrate, Court No.9, Jhansi has directed to proceed ex party against the applicant nos.1,2,3,4 & 8 as notices have been served upon them and further directed to issue fresh notices along with notice by publication to the applicant nos.5, 6 & 7, copy of which has been filed as Annexure-2 to the affidavit accompanying the present application. It is contended by the learned counsel for the applicants that the application of opposite party no.2 filed under the Protection of Women from Domestic Violence Act is barred by Section 468 Cr.P.C. inasmuch as complaint could have been filed within one year from the date of the incident, in view of the provisions of Sections 28 and 32 of the Protection of Women from Domestic Violence 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 the Hon''ble Apex Court in the matter of Japani Sahoo Vs. Chandra Sekhar Mohanty, and Noida Entrepreneurs Association Vs. NOIDA and Others, . Learned counsel for the applicants has relied upon the Judgments of the Hon''ble Apex Court, passed in SLP (Criminal) No.7787 of 2010 in support of his contention.

Sri Shishir Tandon, learned counsel for the opposite party no.2 contends that as only notices have been issued to the applicants for filing objection and cognizance has only been taken against five applicants, the applicants have right to file objection before the concerned Magistrate and the present petition is pre-mature. He has placed reliance upon the Judgment reported in 2008 JIC 2134 in the matter of Vinod Parashar Vs. State of U.P. and has argued that this Court has held that the proceedings under the Protection of Women from Domestic Violence Act is essentially of civil nature and it is only for purposes of cutting down procedural delays and, therefore, the present petition is not maintainable. However, he does not dispute that cognizance have been taken against five applicants.

After hearing the learned counsel for the applicants, Sri Shishir Tandoen, learned counsel for the opposite party no.2 and the learned AGA and after perusing the averments contained in the present petition, the present 482 Cr.P.C. petition is finally disposed of with liberty to the applicant to file objection before the Judicial Magistrate-I, Court No.9, Jhansi within one month from today raising all the grievances as the applicants may be advised and the concerned Magistrate may consider and decide the aforesaid objection as expeditiously as possible, strictly in accordance with law, after hearing the parties, preferably within a period of three months thereafter. For a period of four months from today or till disposal of the objection whichever is earlier, no coercive action shall be taken against the applicants in complaint case no.1335 of 2011, under Sections 12, 18, 19, 20, 22 & 23 of the Protection of Women from Domestic Violence Act, 2005, pending before the Judicial Magistrate-I, Court No.9 Jhansi.

In case the objection is not filed by the applicant within the time stipulated, interim protection granted above, shall stand automatically vacated.