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Joined: Sun Oct 09, 2011 2:44 pm
Posts: 14
Quote:
Please read the success story of Indore guy http://www.bhaskar.com/news-fli/MP-IND-iit-topper-implicated-dowry-case-won-the-case-itself-fighting-4952285-PHO.html


Sat Apr 04, 2015 4:38 am
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Joined: Tue Jan 14, 2014 9:32 am
Posts: 258
Bhai,

Could you translate it in English?


Sat Apr 04, 2015 6:15 am
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Joined: Mon Jul 14, 2014 3:39 am
Posts: 382
Summary of what is written, not the exact word to word translation:

They guy was a topper in his studies of BTech. Worked for a respectable company, Lehman Brothers, Japanese division. His wife put a false dowry case on his family. He spent time in jail, got beaten by police, came out and fought his own case and won in two years and four months. There is a special mention that he read a lot of court judgements of the High Court and the Supreme Court.

-He had bought a flat in his wife’s name.
-The guy was arrested 1:30 am in the morning while his mother was lying in an Intensive Care Unit in a hospital.
-He used discrepencies in the witnesses’s statements against them.
-He showed photos of the couple having good times to prove his case.
-He did a sting-operation on the wife how she was nicely showing up for the maintenance case hearings in the family court but was not coming to the district court. After he showed this to the court, the court sped up the trial.
-He said he decided to fight his own case because he had already lost his job. He went prepared for every hearing by reading law books and HC, SC judgements on the internet.

At the end of the article, the wife’s mother is quoted as saying that the acquittal is injustice and they would appeal.


Sat Apr 04, 2015 8:28 am
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Joined: Tue Sep 06, 2011 11:17 am
Posts: 603
it is good that the person appeared as party-in-person. if u have time and interest to defend ur case, PIP is a better option. in 498a, dv cases, u need not gather much evidence to disprove the allegations. read thoroughly he complaint/petition, their chief examination/evidence affidavit and then prepare for cross examn.

in cross, it should not be asked as witness No. 1 said like this, is it correct? or why are saying in another way. each witness to be questioned independently and their reply noted. at arguments, compare the complaint/petition/chief and cross of each witness and as against each of the witnesses. if u are able to bring out the contradictions in their evidence, u have won the case.

let the opp. party go for appeal. first thing is they have to engage an advocate on their own, attend each hearing of the appeal, unlike in the 498a case in the trial case wherein the PP conducts the case on her behalf and she was required to appear only for evidence.

if there is dv case still pending, u can use the judgment of AP HC in which it was stated that if 498a results in acquittal, u can approach the HC for quash of dv case, if the allegations in both are broadly the same.

* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition Nos.7289, 16576, 16607, 16608 of 2014;
76, 99, 226, 311, 388, 395 and 476 of 2015
16.02.2015
Crl.P.No.16576 of 2014:
Between:
Giduthuri Kesari Kumar
and others … Petitioners
AND
State of Telangana
Rep. by Public Prosecutor
and another. ….
Respondents
! Counsel for Petitioners : Sri G. Abdul Khader
^ Counsel for Respondent No.1 : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
1) 2010 (2) ALD (Crl.) 689 (AP)
2) (2011) 12 SCC 588
3) (2013) 4 SCC 176
4) 2013 (2) ALD (Crl.) 341(AP)
5) 2012 (2) ALD 910
6) 2010(1)ALT (Cri) 105
* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition Nos.7289, 16576, 16607, 16608 of 2014;
76, 99, 226, 311, 388, 395 and 476 of 2015
COMMON ORDER:
All these Criminal Petitions are filed under Section 482 of
Code of Criminal Procedure (Cr.P.C.) seeking to quash the
proceedings in respect of Domestic Violence Cases
(DVCs.).
2) This Court entertained a doubt regarding maintainability
of these quash petitions in view of judgment of this Court in
the case of Velisetti Chandra Rekha and another v. The
State of A.P. and another
[1]
and hence, heard learned
counsel for petitioners and learned Public Prosecutor.
3) In the above decision, in a similar petition filed to quash
the proceedings in DV case, a learned single Judge of this
High Court has observed thus:
“Para 2: The petitioners cannot be punished for any offence
under the Act. Only on violating the Protection Orders passed
under Section 18 of the Act and Residence Orders under
Section 19 of the Act, the Magistrate can proceed under
Section 31 of the Act and can summon the violators to show
cause why penalty for breach of the protection should not be
imposed on them. Further as per Section 32 of the Act, the
offence under Sub-section (1) of Section 31 of the Act shall be
a cognizable and non-bailable one. Before passing any orders,
summons have to be served on the respondents and they can
either appear before the court or can be represented by an
Advocate for passing appropriate orders under Section 18 or
19 of the Act. In view of the same, issuing of summons and
non-bailable warrants for their presence, is not at all
warranted, at the stage of passing of the protection orders or
residence orders by the concerned Magistrate. On issuing
such Non-bailable warrants on the presumption that they have
committed the offence under the Act, the petitioners
approached this Court for quashment of the proceedings.
Para 3: Since the resident orders can be passed
against all the respondents, preventing them from
interfering with the possession of the aggrieved
person in the Domestic Violence Case, mere
impleadment of the petitioners in the Domestic
Violence Case, does not give raise to a criminal
offence to quash the proceedings at the initial
stage.”(Emphasis supplied)
4) So, precisely the observation of the learned Judge is that
orders passed under Sections 18 to 22 of Protection of Women
from Domestic Violence Act, 2005 (for short “D.V Act”) are in
the nature of civil reliefs and none of the orders treat the
concerned respondent as an offender and it is only the
violation of the order passed under Sections 18 and 19 is
treated as an offence under Sections 31 and 32 of DV Act and
therefore, mere impleadment of a person as a party
respondent in a Domestic Violence Case, does not give rise to
a criminal offence to quash the proceedings at the initial stage.
5) In the light of above observations, this Court preferred a
preliminary hearing on the maintainability of the above quash
petitions.
6) Learned counsel for petitioners argued that though reliefs
under Sections 18 to 22 of DV Act are in the nature of civil
reliefs but several provisions under DV Act particularly
Sections 2 (i), 12, 28 etc. would reveal that the reliefs under
aforesaid sections shall be dealt with by the Judicial Magistrate
of First Class and the adjudication of the proceedings under
Sections 12, 18 to 23 and 31 is governed by the provisions of
Cr.P.C. and the concerned Magistrate Courts are treating the
proceedings under DV Act as criminal case and if the parties
failed to turn up for any reason, issuing NBWs. against them
which causes any amount of hardship to the parties most of
whom are unnecessarily roped in cases without their
connivance and complicity in the case and further, they are not
responsible and answerable to the reliefs sought for by the
petitioner. In this legal and factual scenario, they argued,
continuation of the proceedings against the petitioners will be
abuse of process of the Court only which can be obviated by
this Court under its inherent powers conferred by Section 482
Cr.P.C. They submitted that the observations in Velisetti
Chandra Rekha’s case (1 supra) can be confined to that
particular case and in fact in some other cases, under suitable
circumstances, the proceedings in D.V. cases were quashed
by this Court and Supreme Court as well. They relied upon the
following decisions:
1. Inderjit Singh Grewal vs. State of Punjab
[2]
2. Ashish Dixit vs. State of Uttar Pradesh
[3]
3. Markapuram Siva Rao and others vs. State of Andhra
Pradesh
[4]
They submitted that their petitions are maintainable and may be
decided on merits.
7) Per contra, learned Public Prosecutor submitted that in view
of judgment in Velisetti Chandra Rekha’s case (1 supra) the
present petitions are not maintainable. Of course, he fairly
conceded that subsequent to the above judgment, in another
judgment in Markapuram Siva Rao’s case(4 supra) a learned
Judge has quashed the proceedings in DV case.
8 ) In the light of above arguments, the nature of the
proceedings under D.V. Act is relevant to decide the issue.
9) When the statement of objects and reasons of D.V.Act is
perused, it was felt by the law framers the phenomenon of
domestic violence is widely prevalent but has remained largely
invisible in the public domain. Presently, where a woman is
subjected to cruelty by her husband or his relatives, it is an
offence under Section 498A of the Indian Penal Code but civil
law does not however address this phenomenon in its entirety. It
was with this observation the Legislature proposed to enact the
Domestic Violence Act keeping in view the rights guaranteed
under Articles 14, 15 and 21 of the Constitution to provide
for a remedy under the civil law (Emphasis Supplied) which is
intended to protect the women from being a victim of domestic
violence and to prevent the occurrence of domestic violence in
the society.
10) So, a study of statement of objects and reasons would
show that though the domestic violence against women was
addressed to some extent by the penal law under Section 498A,
the same was not addressed by the civil law it was felt. Hence,
Protection of Women from Domestic Violence Act was brought
into force w.e.f. 26.10.2006. The reliefs sought to be provided
under this enactment, as we will presently see are therefore
predominantly civil in nature in tune with the object of the Act. In
the line, Section 18 provides Protection order against domestic
violence; Section 19 intended to grant Residence order; Section
20 confers Monetary reliefs; Section 21 grants Custody order
relating to the custody of the children and Section 22 confer
compensation and damages to the victim of domestic violence.
So these remedies are purely civil in nature and it is important to
note none of the several forms of the domestic violence
committed by the respondents under these sections is referred
as an offence and respondents as offenders. It is only when an
order is passed under any of the aforesaid sections and the
breach of protection order is caused by them, such breach will be
termed as an offence under Section 31 of the D.V. Act and the
same is categorized as cognizable and non-bailable under
Section 32 of the D.V. Act. That is what held in Velisetti
Chandra Rekha’s case (1 supra). In the subsequent judgments
also similar view was expressed as below:
i) I n Gundu Chandrasekhar vs. The State of Andhra
Pradesh
[5]
, a learned judge of this High Court observed thus:
“None of the reliefs claimed in D.V.C. No.8 of 2011 by the 2nd
respondent can be called crimes. Though, the Act empowers
a Magistrate to entertain the complaint of an aggrieved person
under Section 12 of the Act and makes it incumbent on the
Magistrate to make enquiry of the same under the Code of
Criminal Procedure, 1973, reliefs under Sections 18 to 22 of
the Act are in the nature of civil reliefs only. It is only violation
of order of the Magistrate which becomes an offence under
Section 31 of the Act and which attracts penalty for breach of
protection order by any of the respondents. Similarly Section
33 of the Act provides for penalty for discharging duty by
Protection Officer. Except under Sections 31 and 33 of the
Act which occur in Chapter V, all the reliefs claimed under
Chapter IV of the Act are not offences and enquiry of rights of
the aggrieved person under Sections 18 to 22 of the Act
cannot be termed as trial of a criminal case.” (Emphasis
supplied)
ii) I n Mohit Yadam and another vs. State of Andhra
Pradesh
[6]
, a learned judge of this High Court observed thus:
“Para 22: If a statute does not provide an offender liable to
any penalty (conviction or sentence) in favour of the state, it
can be said that legislation will be classified as remedial
statute. Remedial statutes are known as welfare, beneficent
or social justice oriented legislations. A remedial statute
receives a liberal construction. In case of remedial statutes,
doubt is resolved in favour of the class of persons for whose
benefit the statute is enacted. Whenever a legislation
prescribes a duty or penalty for breach of it, it must be
understood that the duty is prescribed in the interest of the
community or some part of it and the penalties prescribed as
a sanction for its purpose. None of the provisions of the
Domestic Violence Act, 2005 has direct penal consequences.
(Emphasis supplied)
Para 23: Under Section 31 of the Domestic Violence Act,
2005, breach of protection order, or of an interim protection
order, by the Respondent shall be an offence under the Act.
Therefore, all other orders passed under Sections 17,18,19,20
and 22 of the Domestic Violence Act, 2005 have no penal
consequences, even if the Respondent committed breach of
the order, except as provided under Section 31 of the Act.”
(Emphasis supplied)
Therefore, it is clear that the proceedings conducted till
passing of the orders under Section 18 to 22 are only civil in
nature to provide a civil remedy. Thus it is a civil comfit packed
with a criminal wrapper.
1 1 ) Then the procedure is concerned, no doubt the above
reliefs are to be provided by a Judicial First Class Magistrate. As
rightly submitted by learned counsel for petitioners, under
Section 12 of D.V. Act, an application seeking one or more of the
reliefs under this Act has to be submitted to the Magistrate.
Under Section 2(i) ‘Magistrate’ means Judicial Magistrate of First
Class or as the case may be, Metropolitan Magistrate exercising
jurisdiction under the Code of Criminal Procedure in the area
where the aggrieved person resides temporarily or otherwise or
the respondent resides or the domestic violence as alleged to
have taken place. It is also true that Sec.28 speaks of the
procedure to be followed in adjudicating the applications. It
reads thus:
Section 28. Procedure:-
(1) Save as otherwise provided in this Act, all proceedings
under Sections 12,18,19,20,21,22 and 23 and offences under
Section 31 shall be governed by the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from
laying down its own procedure for disposal of an application
under Section 12 or under sub-section (2) of Section 23.”
12) A close perusal of Section 28 would show that though as
per this Section the proceedings under Sec.12, 18 to 23 and
offences under Sec. 31 are governed by the Code of Criminal
Procedure, 1973, that is not an inscrutable rule inasmuch as
Sec.28(1) is having a saving clause and also subject to subsection(
2). When we analyse the limitations of Section 28(1) with
reference to the civil nature of the remedies provided under
Sec.18 to 22 and saving provisions under Sec.13 and 23, we
can understand that for conducting enquiry, the Court need not
insist for personal attendance of the parties for each adjournment
like in criminal cases. It is because, Sec.13 lays down that the
Magistrate shall issue a notice of the date of hearing fixed under
Sec.12 to the Protection Officer for serving on the respondent. So
for securing the appearance of respondent, at the first instance,
the Magistrate need not, nay shall not issue warrant. Even if the
respondents failed to turn up after receiving notice and file their
counter affidavit if any, the Magistrate need not take coercive
steps for securing their presence and on the other hand he can
treat them as “Non-contesting respondents” and pass an exparte
order by virtue of the power conferred on him under Sec.23 of the
D.V.Act. So during the enquiry under Sec.12 and till an order is
passed under Sec.18 to 23, the Magistrate need not insist the
presence of parties for each adjournment and take coercive
steps due to their absence. It is only under exceptional
circumstances, if the Magistrate feels required, he may issue
warrants for securing the presence of the concerned party. Such
a judicial flexibility to lay down own procedure is conferred on the
Magistrate under Sec.28(2) of the D.V. Act. By following this
procedure, learned Magistrate can obviate the presence of the
respondents, some of whom in most of the cases are
unnecessarily roped in, throughout the enquiry.
13) The next aspect is having regard to the fact that the reliefs
provided under Section 18 to 22 are civil reliefs and enquiry
under Sec. 12 of D.V. Act is not a trial of a criminal case, whether
the respondents can seek for quashment of the proceedings that
they were unnecessarily roped in and thereby continuation of the
proceedings amounts to abuse of process of Court etc., pleas. In
my considered view, having regard to the facts that the scheme
of the Act which provide civil reliefs and the Magistrate can lay
his own procedure by not taking coercive steps in general course
and the enquiry being not the trial of a criminal offence, the
respondents cannot rush with 482 Cr.P.C petitions seeking
quashment of the proceedings on the ground that they were
unnecessarily roped in. They can establish their noninvolvement
in the matter and non-answerability to the reliefs
claimed by participating in the enquiry. It is only in exceptional
cases like without there existing any domestic relationship as laid
under Section 2(f) of the D.V. Act between the parties, the
petitioner filed D.V case against them or a competent Court has
already acquitted them of the allegations which are identical to
the ones leveled in the Domestic Violence Case, the
respondents can seek for quashment of the proceedings since
continuation of the proceedings in such instances certainly
amounts to abuse of process of Court.
We can find such instances in the decisions cited by the
petitioners.
i) In Inderjit Singh Grewal’s case (2 supra), the complainant
and her husband took divorce by mutual consent before the
District Judge, Ludhiana under Section 13-B of Hindu Marriage
Act and later it appears, she filed a complaint before the
Magistrate under D.V Act on the allegation that herself and her
husband obtained decree of divorce by playing fraud upon the
Court and now her husband causes domestic violence to her.
She independently filed a civil suit in the Court of Judge, Senior
Division, Ludhiana seeking declaration that the decree of divorce
was null and void as it was obtained by fraud. In this scenario,
Hon’ble Apex Court held that when she was a party to the fraud,
she cannot take advantage of it and in any event, the Magistrate
Court in criminal proceedings cannot declare the decree of Civil
Court as null and void and thus held that the continuation of
proceedings amounts to travesty of justice and quashed.
ii) In Ashish Dixit’s case (3 supra), the complainant appeared
to have filed the petition under D.V. Act not only against husband
and parents-in-law but also against some sundry persons
including the tenant of the house whose name was not known to
her. In such circumstances proceedings were quashed.
iii) In Markapuram Siva Rao’s case (4 supra), the facts were
that earlier case under Section 498-A and 506 IPC and Sections
3 and 4 of Dowry Prohibition Act were ended in acquittal against
other accused except the husband and subsequently with
identical allegations, the wife filed a petition under D.V. Act
against all of them. It was held that such petition would amount
to abuse of process of Court and quashed the proceedings
against the petitioners.
Therefore, except in exceptional circumstances stated
supra, the quash petitions are not maintainable on a simple
ground that the respondents are unnecessarily roped in the case
without their fault.
14) To sum up the findings:
i) Since the remedies under D.V Act are civil remedies, the
Magistrate in view of his powers under Section 28(2) of D.V Act
shall issue notice to the parties for their first appearance and
shall not insist for the attendance of the parties for every hearing
and in case of non-appearance of the parties despite receiving
notices, can conduct enquiry and pass exparte order with the
material available. It is only in the exceptional cases where the
Magistrate feels that the circumstance require that he can insist
the presence of the parties even by adopting coercive measures.
ii) In view of the remedies which are in civil nature and enquiry
is not a trial of criminal case, the quash petitions under Sec.482
Cr.P.C on the plea that the petitioners are unnecessarily arrayed
as parties are not maintainable. It is only in exceptional cases like
without there existing any domestic relationship as laid under
Section 2(f) of the D.V. Act between the parties, the petitioner
filed D.V. case against them or a competent Court has already
acquitted them of the allegations which are identical to the ones
leveled in the Domestic Violence Case, the respondents can
seek for quashment of the proceedings since continuation of the
proceedings in such instances certainly amounts to abuse of
process of Court.
1 3 ) In that view, when the present Criminal Petitions are
perused, except Crl.P.No.7289 of 2014, the other petitions are
filed with the plea that there is no domestic violence and the
petitioners were unnecessarily roped in the case. Hence they are
held not maintainable and accordingly dismissed. In
Crl.P.No.7289 of 2014, the ground for quashment of proceedings
is that the earlier C.C.No.554 of 2010 for the offence under
Section 498-A IPC with similar allegations was acquitted. Hence,
the said petition is taken up for hearing. Criminal Petition
Nos.16576, 16607, 16608 of 2014; 76, 99, 226, 311, 388, 395
and 476 of 2015 are dismissed.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 16.02.2015
Murthy / scs
Note:
(1) L.R Copy has to be marked.
(2) Registry is directed to send copy of this order to all the
Principal District Judges to circulate to the Magistrates.
[1]
2010 (2) ALD (Crl.) 689 (AP)
[2]
(2011) 12 SCC 588
[3]
(2013) 4 SCC 176
[4]
2013 (2) ALD (Crl.) 341(AP)
[5]
2012 (2) ALD 910
[6]
2010(1)ALT (Cri) 105


Sat Apr 04, 2015 1:53 pm
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Joined: Tue Jan 14, 2014 9:32 am
Posts: 258
Thank you Friends. Keep up the good work.


Sat Apr 04, 2015 5:21 pm
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