High Court of TripuraCrl.Petn./77/2014disposed of

Sumitra Debnath v. Ratan Debnath And ANR.

2015-03-20Hon'Ble Mr. Justice S. Talapatra22 pages

INTHEHIGHCOURTOFTRIPURA AGARTALA CRL.PETN.No.77of2014. Smt.SumitraDebnath,

! " .........Petitioner -Versus- ShriRatanDebnath,

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" ! " ........Respondent TheStateofTripura, "

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"Ihavegonethroughtheimpugnedorderandin thatconnection,theorderpassedbythelearned Court below in C.R. 237 of 2011 on 22.08.2012 grantingvariousreliefstothepetitioner.Inthat order, learned Court below referring to Section 18subsection8oftheActpassedthedirection totherespondenthereintoreturnthestridhans including the cash amount of Rs.1,00,000/> to the appellant.

It is obvious that due to an inadvertent error learned Court below referred sub section 8 of Section 18 of the Act which oughttohavebeen sub section8ofSection 19 oftheActfirstlybecausethereisnoexistenceof anysubsectionunderSection18oftheActand secondly,itissubsection8ofSection19ofthe ActwhichempowerstheMagistratetodirectthe respondent to return the stridhans to the aggrievedperson.Now,turningtoSection31of the Act, it provides for penalty for breach of protection order passed in favour of the aggrieved person. The Section specifically mentions that a breach of any protection order or interim protection order by the respondent shallbepunishablewithimprisonment.

Itisthus evident that it is only the protection order passed under Section 18 of the Act that would comewithinthescopeofSection31oftheAct. LearnedCourtbelowintheimpugnedorderhas very nicely drove her point home giving referencetovariouscitations. I have gone through the citations referred by leaned Counsel for the appellant which were in fact also referred before the learned Court below.Innoneofthethreecitationsthematter in controversy in this case was addressed not beingthesubjectmatterofdisputeinanyofthe cases.So,thecitationsarenotatallapplicable. On the other hand, the citation referred by the learnedCounselfortherespondentfortifiesthe conclusionarrivedatbythelearnedCourtbelow andsoalsobythisCourt."

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"Intheresult,therespondentnamelySriRatan Debnath is hereby restrained from causing any short of domestic violence to the aggrieved petitioner in view of Section 18 from the enjoymentofamenitiesoflife,food,shelterand clothing. In view of sub section (8) of section 18 the respondent is directed to return to the possession of the aggrieved person her stridhans namely, khat, alna, sofa set, freeze, dressing table, TV, tea table and other utensils Tama,Kasa,beddingandotherwearingapparel suchassariandotherthings,onering,twopairs ear ring and one VIP Suitcase and cash of Rs.

1,00,000/>(Rupeesonelakh)asgivenbythe father of the petitioner for purchasing MIS certificates to the aggrieved petitioner within 1 month from the passing of this order i.e. from 22.08.2012. Inconnectionwiththistheaggrievedpetitioner is directed to purchase MIS certificate of this Rs.1,00,000/>(Rupeesonelakh)asgivenbyher father and submit proof before this Court regardingthepurchaseofherMIScertificateto ensurefinancialstabilityofherlife. In respect of the petition of the petitioner claiming residence order U/S 19. The respondent is direct to secure same level of alternate accommodation for the aggrieved person and thus he is directed to pay a rent of Rs.1,000/> (Rupees one thousand) per month beingthehouserentw.e.

f.06.08.2012. In regard the petitioner claiming maintenance U/S20therespondentfailedtorebuttheclaim oftheaggrievedpetitionerthatsheisentitledto get maintenance for herself and as such she is entitledtogetreliefU/s20.So,therespondent is directed to a pay a monthly maintenance allowance of Rs.1,500/> (Rupees one thousand five hundred) per month to the aggrieved petitioner w.e.f. 06.08.2012 and the same shall bedepositedintheBankaccountwhichshallbe intimated by the aggrieved petitioner within 10th day of every month for the preceding month. OCWestAgartalaPSisherebydirectedtocause supervision of the observance of this order by therespondenttwiceinamonth."

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4 28.-(1)Saveasotherwiseprovided in this Act, all proceedings under sections 12,18,19,20,21,22 and 23 and offences under section31shallbegovernedbytheprovisionsof the Code of Criminal Procedure, 1973 (2 of 1974). (2)Nothinginsub>section(1)shallpreventthe court from laying down its own procedure for disposal of an application under section 12 or undersub>section(2)ofsection23. [7]

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4 " 'Protection order' means an order made in termsofSection18;" [9] !

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' " 4 "18. Protection orders.-The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being

satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from- (a)committing any act of domestic violence; (b)aidingorabettinginthecommissionof actsofdomesticviolence; (c)enteringtheplaceofemploymentofthe aggrieved person or, if the person aggrievedisachild,itsschooloranyother placefrequentedbytheaggrievedperson;

(d)attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written orelectronicortelephoniccontact; (e)alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointlybythepartiesorseparatelybythem withouttheleaveoftheMagistrate; (f)causing violence to the dependants, otherrelativesoranypersonwhogivethe aggrievedpersonassistancefromdomestic violence; (g)committinganyotheractasspecifiedin theprotectionorder." [10] , , -

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4 "6.OnlythoseordersasprovidedinClauses(a) to(g)ofSection18,wouldbeaprotectionorder as defined in Section2(o)of the Act.

Section19provides for residence order and Section20providesformonetaryreliefs. 7. Section31provides penalty for breach of protection order or an interim protection order bytherespondent.Itreads: 31. Penalty for breach of protection order byrespondent.>(1) Abreachofprotection order,orofaninterimprotectionorder,by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a termwhichmayextendtooneyear,orwith finewhichmayextendtotwentythousand rupees,orwithboth. (2)TheoffenceunderSub>section(1)shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have beencausedbytheaccused.

(3) While framing charges under Sub> section(1),theMagistratesmayalsoframe charges under Section498Aof the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions. Section32of the Act provides that notwithstanding anything contained in the CriminalProcedureCodetheoffenceunderSub> section(1)ofSection31shallbecognizableand non>bailable. Section28(1)provides that except as provided under the Act, all proceedings for theoffencesunderSection31shallbegoverned bytheprovisionsofCodeofCriminalProcedure. 8.

Under Sub>section (1) of Section31, if the respondent breaches a protection order or an interimprotectionorder,heshallbepunishable for the sentence provided therein. Under Sub> section (2) the offences, as far as practicable, shallbetriedbytheMagistrate,whopassedthe order, the breach of which has been alleged to have been caused by the accused. The offences under Sub>section (1) of Section31is cognizableandnon>bailable. 9. It is thus clear that an offence under Section31oftheActisonlyforbreachofeither aprotectionorderoraninterimprotectionorder passed under Section18and as defined under Section2(o)of the Act.

Procedure in view of the mandate under Section28oftheActasSection28providesthat except as provided under the Act, all proceedings under Sections 12,18,19,20,21, 22 and 23 and offences under Section31shall be governed by the provisions of Code of Criminal Procedure.Thereforeonlyiftheorderpassedby theMagistrateisaprotectionorderoraninterim protection order, the Magistrate can direct registrationofthecaseandinvestigatethecase underSection31oftheAct." [Emphasisadded] [12] , (

Kanchan (Smt.) vs. VikramjeetSetiya, " 2013Cri.L.J.85.

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4 "7. A perusal of Section20of the Act of 2005 reveals that exhaustive procedure for the execution of monetary relief has not been laid down in this Section because sub>Sections (4) and (5) of Section20provide the consequences to an order of monetary relief. Sub>Section (6) of Section20of the Act of 2005 entitles the Magistrate to direct the employer or debtor of the respondent to directly pay to the aggrieved personortodepositwiththeCourtaportionof wagesorsalariesordebtdueoraccruedtothe creditoroftherespondenttowardsthemonetary relief payable by the respondent.

However, this provisionislimitedtothepersonwhomayhave accrued credit or is a salaried person, but in case of a self>employed person, this provision wouldbeofnohelptotheclaimant. 9. Resultantly, this Court is of the opinion that theprovisionsoftheCodeofCriminalProcedure in relation to execution of the order under Sec.125Cr.P.C. have to be resorted to by the Court below for giving force to the order of monetaryrelief. 10.LookingtothenatureoftheLegislationand thepurposeforwhichthesamewasenacted,it isherebydirectedthathenceforthalltheorders of monetary relief under the provisions of the Act of 2005 shall be executed in the manner provided under Sec.125Cr.P.C.

the order is passed under Sec.12or23of the Actof2005fordirectingthemonetaryrelief,the Court, after the period provided for appeal is over, shall

issue warrant of recovery forrecoveryofthemonetaryreliefdirectedtobe paidandintheeventofwarrantforrecoverynot beingsatisfiedthentheconsequenceofsending therespondenttociviljail,aspertheprocedure providedunderSec.125Cr.P.C.,shallberesorted to." [Emphasisadded] [13] @

ShahulHameedvs.Nabeesa Beevi ,89/5 /&&5 D

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01&//&0& 4 "7. The breach of order under S.17 does not comewithintheambitofSection31atall.This aspect has been considered in the decision reported in Velayudhan Nair vs. Chimminikkara Karthiyani : 2009 (3) KHC 377, wherein it was heldasfollows: 'Protection Order is defined under sub> section9(o)ofSection2asanordermade intermsofSection18.Therefore,onlyifan order, which is allegedly broken by the petitioner, is a protection order as defined under Section 2(o), cognizance could be takenunderSection31oftheAct.Suchan order should be made in terms of Section 18.

AnorderunderSections19or20isnot an order made in terms of Section 18 and hence, cannot be CR MC 3829/09 a protection order. The order itself shows that directions given were under Sections 19and20oftheActandnotunderSection 18.AstheorderpassedunderSections19 and20cannotbeanorderpassedinterms of Section 18, as defined under Section 2(o), the Magistrate cannot take cognizance under Section 31 if there is breach of an order passed under Sections 19 and 20. Section 28 provides that provisions of Code of Criminal Procedure applies to an order passed under Sections 12,18,19,20,21 and 22 of the Act, Magistrateisentitledtotakeactionagainst therespondentasprovidedundertheCode ofCriminalProcedure.'

A reading of the above decision would clearly showsthatS.31doesnottake withinits ambit, anorderunderS.17oftheAct."

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" * 4 "The Magistrate may direct the respondent to returntothepossessionoftheaggrievedperson for her stridhan or any other property or valuablesecurityinwhichsheisentitledto."

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4 "6. Upon the failure on the part of the respondent to make payment in terms of the orderundersub>section(1),theMagistratemay direct the employer or a debtor of the respondent, to directly pay to the aggrieved personortodepositwiththecourtaportionof thewagesorsalariesordebtduetooraccrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payablebytherespondent." $ " * *

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! " * 4 "15.BreachofProtectionOrders.- (1)An aggrieved person may report a breach of protection order or an interim protectionordertotheProtectionOfficer. (2)Everyreportreferredtoinsub>rule(1) shall be in writing by the informant and dulysignedbyher. (3)The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders. (4)The aggrieved person may, if she so desires, make a complaint of breach of protectionorderorinterimprotectionorder directly to the Magistrate or the Police, if shesochooses.

(5)If,atanytime after a protectionorder has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking helpfromthelocalpolicestationandassist the aggrieved person to lodge a report to the local police authorities in appropriate cases.

(6)Whenchargesareframedundersection 31 or in respect of offences under section 498AoftheIndianPenalCode,1860(45of 1860),oranyotheroffencenotsummarily triable, the Court may separate the proceedingsforsuchoffencestobetriedin the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974) and proceedtosummarilytrytheoffenceofthe breach of Protection Order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure,1973(2of1974).

(7)Any resistance to the enforcement of theordersoftheCourtundertheActbythe respondent or any other person purportedly acting on his behalf shall be deemedtobeabreachofprotectionorder or an interim protection order covered undertheAct. (8)A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as providedundersections31and32.

(9)While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protecttheaggrievedpersonandtoensure the presence of the accused before the court,whichmayinclude- (a)an order restraining the accused from threatening to commit or committinganactofdomesticviolence; (b)an order preventing the accused from harassing, telephoning or making anycontactwiththeaggrievedperson; (c)an order directing the accused to vacate and stay away from the residence of the aggrieved person or anyplacesheislikelytovisit; (d)an order prohibiting the possession or use of firearm or any other dangerousweapon; (e)an order prohibiting the consumptionofalcoholorotherdrugs; (f)any other order required for protection,safetyandadequatereliefto theaggrievedperson."

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: A copy of the order of [maintenance or interim maintenance and expenses of proceeding, as the case may be,] shall be given without payment to the person in whosefavouritismade,ortohisguardian, if any, or to the person [whom the allowance for the maintenance or the allowancefortheinterimmaintenanceand expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place wherethepersonagainstwhomitismade maybe,onsuchMagistratebeingsatisfied as to the identity of the parties and the

non>payment of the [allowance, or as the casemaybe,expenses,due]. [21] @ 0/9

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4 "(3)Ifanypersonsoorderedfailswithout sufficient cause to comply with the order, anysuchMagistratemay,foreverybreach oftheorder,issueawarrantforlevyingthe amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's[allowanceforthemaintenanceor the interim maintenance and expenses of proceeding,asthecasemaybe,]remaining unpaid after the execution of the warrant, to imprisonment for a term which may extent to one month or until payment if soonermade.

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a periodofoneyearfromthedateon which itbecamedue: Provided further that if such person offers to maintain his wife on condition of her livingwithhim,andsherefusestolivewith him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing."

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