Sarfraj Khalil Pathan v. State Of Maharashtra And ANR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3413 OF 2022 Sarfraj Khalil Pathan
...Petitioner
Versus
State Of Maharashtra And Anr.
...Respondents
....
Mr. Sarvajit B. Patil, Advocate for the Petitioner. Mr. Arfan Sait, APP for the Respondent - State. ....
CORAM
:
PRAKASH D. NAIK, J.
DATE :
20th SEPTEMBER, 2022.
PER COURT :
1.
The petitioner has challenged the proceedings initiated by Respondent No.2 under Section 12 of the protection of Women from Domestic Violence Act (for short 'DV Act'). 2.
The petitioner is husband. Respondent No.2 is wife of petitioner. Respondent Nos.3 & 4 are their children. The Respondent No.2 filed application below Exh.5 under Section 23 of the said Act. The Respondent No.2 had prayed for maintenance and directions to issue search warrant and production of son Kashyaf aged around four years before the Court. Vide order dated 05.01.2022, the learned J.M.F.C. Miraj issued search warrant and Miraj issued search warrant and directed Police Inspector Satara Digitally signed by SAJAKALI LIYAKAT JAMADAR Date:
2022.10.04 11:05:56 +0530 SAJAKALI LIYAKAT JAMADAR
Police Station to search child and produce the child. The petitioner challenged the order dated 05.01.2022 by preferring appeal before sessions Court. The appeal was partly allowed vide order dated 20.01.2022. Order dated 05.01.2022 was set aside, and learned Magistrate directed learned J.M.F.C. to decide the application Exhibit - 5 afresh without prejudice to earlier order in the light of criteria laid down under Section 21 of DV Act. The respondent No.2 preferred application Exhibit - 45 for interim custody of son Kashyaf. Vide order dated 02.03.2022 passed by learned J.M.F.C., temporary custody of child was directed to be handed over to respondent No.2 . The order dated 02.03.2022 was challenged by petitioner by preferring appeal before Sessions Court. The sessions Court vide order dated 31.03.
2022 allowed the appeal and set aside order dated 02.03.2022 passed by learned J.M.F.C., with direction to decide application below Exhibit - 5 expeditiously without prejudice to earlier order on merits as per criteria laid down in Section 21 of the Act. The learned J.M.F.C., vide order dated 25.08.2022 directed petitioner to handover temporary custody of child Kashyaf to Respondent No.2.
3.
Learned Advocate for petitioner submitted that impugned proceedings are bad in law. No incident of harassment took place
as alleged by Respondent No.2. In Paragraph - 6 of the application under the said Act, the respondent No.2 has referred to incident of assaulting, abusing, and harassing the respondent No.2 and children. She approached Satara Police Station. Police visited house. While respondent No.2 was going to Miraj with the help of Police, the petitioner forcefully took their son and filed away. The petitioner preferred application under RTI to Satara Police Station, seeking information whatever any complaint, NC or FIR is registered against them on 11.12.2021. He received reply on 02.01.2022 that such information is not available on record. The impugned proceedings are based on alleged incident dated 11.12.2021. However, there is no complaint on record which shows that allegations are false. There is no domestic violence. The proceedings were initiated as counterblast to FIR dated 26.02.2022 lodged by petitioner vide C.R. No.157/2022 for offences under Sections 323, 504, 506 of Indian Penal Code and other provisions.
4.
The averments in application under Section 12 of the said Act refers to several allegations. In refers to abuses, assault, physical and mental harassment the respondent No.2 has prayed for several reliefs. Merely on the basis of RTI reply relied upon by
petitioner, proceedings cannot be quashed. The grounds urged by petitioner will have to be dealt with during trial. The petitioner is devoid of merits.
ORDER
Criminal Writ Petition No.3413 of 2022 is dismissed and disposed off.
(PRAKASH D. NAIK, J.)