Dismissed

Hemant Namdeorao Nagrale v. Pratima @ Rani Hemant Nagrale and Anr.

Bombay HC24 Jan 2020APL/45/2014

Case brief

AI extract

What is this about?

The Bombay High Court dismissed an application under Section 482 Cr.P.C. seeking to quash domestic violence proceedings, holding that lack of offense cognizable under Section 468 Cr.P.C. implies no limitation bar, police reports do not replace judicial findings, and divorce decrees do not preclude claims under the D.V. Act.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; trial court directed to expedite hearing of pending domestic violence application.

Hemant Namdeorao Nagrale Vs Pratima @ Rani Hemant Nagrale… — Domestic Violence | Bombay HC (2020)

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(15)APLNo.452014(J).doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.45 OF 2014

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Shri.Hemant Namdeorao Nagrale,
Aged about 51 years, Occupation : Service,
R/at – Flat No.13A, Neelima Building,
B.G.Kher Marg, Malabar Hills,
Mumbai 400006.

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...Applicant

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Versus

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1 Smt.Pratima @ Rani Hemant Nagrale, Aged about 45 years, Occupation – Nil, R/At.C/o.Ms.Kiran Ram Moghe, Flat No.1, Jeevan Pradeep Society, Hare Krishna Mandir Road, Model Colony, Pune 411 016.

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2 State of Maharashtra Through its Government Pleader. ... Respondents

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Mr.Subir Kumar i/b. Mr.Rahul Singh Mr.C.Dhingra, Advocate for
the Applicant.

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Mr.R.S.Apte, Senior Counsel and Ms.Manisha Mohammed with
Adv.P. V. Nelson Rajan, Advocate for the Respondent No.1.

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Mr.R.M.Pethe, the Additional Public Prosecutor for the Respondent
No.2/State.

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CORAM : A.M.BADAR J.

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DATED : 24th JANUARY 2020.

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1/16

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Gaikwad RD

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(15)APLNo.452014(J).doc

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ORAL JUDGMENT:

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1 Heard.

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2Rule. Rule is made returnable forthwith. Heard finally
by consent of parties.

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3By this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the Code”
for the sake of brevity), the applicant, who happens to be
respondent in an application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to
as “the D.V.Act” for the sake of brevity) is praying for quashing the
proceedings of the said Criminal Miscellaneous Application
bearing No.2350 of 2013 including that of summons dated
07/10/2012 issued by the trial Court. The said application
bearing No.2350 of 2013 is an application under Section 12 of the
D.V.Act filed by respondent No.1 herein i.e. an aggrieved person.

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4Brief facts leading to the institution of the present
application can be summarized thus :

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According to the applicant herein/original respondent,
he is an officer of the IPS Cadre working as Joint Commissioner of
Police at Mumbai. He married the respondent No.1 herein/an
aggrieved person on 4th May 1990 at Nagpur and out of the said
wedlock two children are born. It is pleaded by the applicant

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Gaikwad RD

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(15)APLNo.452014(J).doc

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herein in his instant application that allegations leveled in the
application under Section 12 of the D.V.Act filed by the respondent
herein have been the subject matter of adjudication before this
Court in Writ Petition No.2308 of 2008 filed by the respondent
herein/aggrieved person so also before the Supreme Court and in
the Family Court Appeal bearing No.73 of 2011. Even if those
allegations are assumed to be true, application under Section12 of
the D.V.Act bearing Criminal Application No.2350 of 2013 pending
on the file of the learned Judicial Magistrate First Class, Pune is
not maintainable being barred by limitation prescribed by the
Code of Criminal Procedure. Therefore, cognizance taken by the
learned trial Magistrate is ex facie illegal. Averments regarding
medical history of the aggrieved person/respondent herein are
also found in the instant application. Various allegations are made
against the aggrieved person/respondent herein and it is
contended that she is unfortunate victim of a serious genetic
disorder and is suffering from acute paranoid schizophrenia
resulting into hallucinations and delusions drifting far away from
the reality. Facts leading to filing of divorce petition by the
applicant herein/original respondent are also pleaded in the
instant application with further pleadings regarding an attempt to
commit suicide by the respondent herein/aggrieved person in May
2007. It is pleaded that aggrieved by the pressurizing tactics,
attempt of defamation, public humiliation and insult, the applicant
herein/original respondent was constrained to file a petition for

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Gaikwad RD

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(15)APLNo.452014(J).doc

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dissolution of marriage by decree of divorce on the ground of
cruelty and other grounds before the Family Court, Bandra.
Further pleadings of the applicant shows that respondent No.1
herein/aggrieved person filed Writ Petition bearing No.2308 of
2008 making various allegations on character as well as in respect
of amassing disproportionate assets by the applicant
herein/original respondent, but that petition came to be disposed
of on the basis of Inquiry Reports submitted by the Joint
Commissioner of Police (Crime), Mumbai and Directorate of Anti-
Corruption Bureau, Mumbai. According to the applicant herein,
those reports show that contentions of the aggrieved person are
incorrect. Allegations levelled against the applicant herein in the
proceedings under the D.V.Act were inquired into by the Joint
Commissioner of Police, Mumbai and those were found to be
incorrect. The applicant herein/original respondent placed
reliance on reports of the Joint Commissioner of Police submitted
to this Court during pendency of the writ petition filed by the
respondent No.1 herein/aggrieved person. Pleadings regarding
dissolution of marriage by decree of divorce dated 25/02/2011
passed by the Family Court, Bandra are mentioned in the instant
application. It is pointed out in the application that the applicant
herein is already directed to pay Rs.20,000/- per month to the
respondent No.1 herein/aggrieved person by the Family Court,
Bandra. According to the applicant herein/original respondent,
the Judgment and Decree dated 25/02/2011 passed by the Family

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Gaikwad RD

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(15)APLNo.452014(J).doc

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Court, Bandra is subject matter of the Family Court Appeal bearing
No.71 of 2011 filed by respondent No.1 herein/aggrieved person.
The applicant has also contended in the instant application that
Civil Application No.147 of 2011 is filed by the respondent No.1
herein/aggrieved person in the said appeal filed by her and the
same came to be disposed of on 12/08/2013 by this Court. With
this, the applicant herein/original respondent denied the contents
raised in the application under Section 12 of the D.V.Act filed by
the respondent herein and he is praying for quashing the
proceedings of the said application on the grounds raised in the
instant application.

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5I have heard the learned Counsel appearing for the
applicant herein/original respondent in the proceedings under
Section 12 of the D.V.Act. He argued that domestic violence, as
alleged in the application under Section 12 of the D.V.Act took
place in April 2008, whereas the application is filed in September
2013 and, therefore, proceedings under the D.V.Act initiated by the
respondent herein are barred by limitation. It is further urged that
the aggrieved person i.e. respondent No.1 herein had preferred
Writ Petition No.2308 of 2008 making several allegations
regarding character as well as in respect of assets and it was
prayed that enquiry into those allegations be made by registering
the FIR against the applicant herein. The learned Counsel for the
applicant argued that the said petition came to be dismissed by the

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Gaikwad RD

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(15)APLNo.452014(J).doc

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Division Bench of this Court after calling reports from the Joint
Commissioner of Police, Mumbai and the Honourable Apex Court
has confirmed that dismissal. Therefore, according to the learned
Counsel, continuance of proceedings under the D.V.Act amounts to
abuse of process of Court.

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6The learned Counsel for the applicant further argued
that the Family Court while passing the decree of divorce had
ordered for payment of maintenance to the respondent No.1
herein/aggrieved person and substantial amount is already
permitted to be withdrawn towards arrangement of her residence.
Hence, according to the learned Counsel for the applicant herein,
the respondent No.1/aggrieved person cannot seek the very same
relief by filing proceedings under the D.V.Act. The divorce granted
by the Family Court is now subject matter of an appeal before this
Court and enhancement of amount of maintenance is also claimed
by the respondent No.1 herein in that appeal. Hence, she ought
not to have preferred proceedings under the D.V.Act. The learned
Counsel for the applicant further argued that on 12/03/2009, the
report came to be submitted by the Joint Commissioner of Police
in Writ Petition No.2308 of 2008 and a finding is recorded by the
said Authority which is to the effect that the complaint is an
outcome of matrimonial disharmony. Ultimately, the said writ
petition came to be dismissed. It is further argued that the
respondent No.1 herein/aggrieved person resides at Nagpur. She

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Gaikwad RD

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(15)APLNo.452014(J).doc

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alleged domestic violence at Mumbai. However, the application
under Section 12 of the D.V.Act is filed at Pune and hence the
same is not maintainable.

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7By drawing my attention to the Order below Exhibits 1
and 58 in Special Civil Suit No.917 of 2012 filed by the
respondent No.1 herein/aggrieved person, it is argued that this
Order is relevant under Section 41 of the Indian Evidence Act and
this Order belies the averments made in the proceedings under the
D.V.Act. Reliance is placed on the Judgment of the Honourable
Apex Court in the matter of K.G.Premshanker versus Inspector of
Police & Anr.1 With this, the learned Counsel contended that
proceedings initiated at the instance of respondent No.1 herein
before the learned Judicial Magistrate First Class, Pune under
Section 12 of the D.V.Act needs to be quashed and set aside.

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8The learned Senior Counsel appearing for the
respondent No.1 herein/aggrieved person opposed the application
by contending that the instant application under Section 482 of
the Code of Criminal Procedure, as framed and filed, is not
maintainable. In his submission, the applicant has invoked
Section 482 of the Code and as per Judgment of the Division
Bench of this Court in Writ Petition No.2473 of 2016 Sukumar
Pawanlal Gandhi and Anr. Versus Bhakti Sushil Gandhidecided on
27th October 2016 at Mumbai (Coram: A.S.Oka and A.A.Sayed,

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1 (2002) 8 Supreme Court Cases 87.

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Gaikwad RD

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(15)APLNo.452014(J).doc

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JJ), the applicant cannot take resort to Section 482 of the Code
seeking quashment of application under Section 12 of the D.V.Act
as the same is not the proceedings under the Code. It is further
urged that reports submitted by the Joint Commissioner of Police
were not accepted by the Court.

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9I have considered the submissions so advanced and
also perused the material placed on record of this Court.

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10The applicant herein/respondent in an application
under Section 12 of the D.V.Act has invoked provisions of Section
482 of the Code for quashing those proceedings initiated by the
respondent herein. It is well settled that powers conferred under
Section 482 of the Code are to be exercised sparingly and that too
in rarest of rare cases for securing ends of justice or to prevent
abuse of process of any Court. While exercising such power the
High Court has to form an opinion on either of the aforesaid two
objectives. Let us, therefore, examine whether the proceedings
under Section 12 of the D.V.Act initiated by the respondent No.1
herein/aggrieved person amounts to abuse of process of Court and
ends of justice requires quashment of those proceedings.

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11So far as the maintainability of the petition for
quashing the proceedings under Section 12 of the D.V.Act, the law
is crystallized by the Full Bench of this Court in the matter of
Nandkishor Pralhad Vyawahare versus Mangala w/o.Pratap

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Gaikwad RD

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(15)APLNo.452014(J).doc

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Bansar2. The Full Bench of this Court has held thus in paragraph
58 of the said rulings.

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“58. A plain reading of Section 482 of Cr.P.C., which saves
inherent power of the High Court, indicates that the
power is to be exercised by the High Court not just to
quash the proceedings, rather it has to be exercised for
specific as well as broader purposes. The exercise of the
inherent power has been delimited to such purposes as
giving effect to any order under the Code or to prevent
abuse of the process of any Court or otherwise to secure
the ends of justice. This would show that the inherent
power of the High Court can be invoked not only to seek
quashing of a proceeding, but also to give effect to any
order under the Code or to challenge any order of the
Court, which amounts to abuse of the process of the
Court or generally to secure the ends of justice. This
would mean that not only the respondent-man but also
the aggrieved person-woman may feel like approaching
the High Court to give effect to any order or to prevent
abuse of the process of Court or to secure ends of justice.
This would show that this power is capable of being used
by either of the parties and not just by the respondent
seeking quashing of the proceedings under Section 12 of
the D.V. Act. If this power is removed from Section 28 of

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2 2008 (3) Mh.L.J. 913.

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Gaikwad RD

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(15)APLNo.452014(J).doc

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the D.V. Act, the affected woman may as well or equally
get adversely hit, and this is how, the very object of the
D.V. Act may get defeated.”

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In this view of the matter it cannot be said that the
instant application under Section 482 of the Code of Criminal
Procedure, as framed and filed, is maintainable.

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12Now, let us see whether in view of the report filed by
the Joint Commissioner of Police, Mumbai in Writ Petition
No.2308 of 2008, the proceedings under the D.V.Act are required
to be quashed and set aside. For that purpose, one has to peruse
the application under Section 12 of the D.V.Act filed by the
respondent No.1 herein/aggrieved person before the learned
Judicial Magistrate First Class, Pune. In the said application, the
aggrieved person has categorically stated that she was in domestic
relationship with the applicant herein/original respondent he
being her husband and they live together in a shared household.
She has made categorical averments about domestic violence
suffered by her at the instance of the applicant herein/original
respondent. Paragraph 7 onwards of the said application contain
pleadings regarding domestic violence allegedly committed on her
by the applicant herein. Instances of physical, verbal and
emotional abuses as well as economic abuses are pleaded in the
said application under Section 12 of the D.V.Act. On careful
scrutiny of averments made in the application under Section 12 of

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Gaikwad RD

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(15)APLNo.452014(J).doc

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the D.V.Act, I am satisfied that the applicant therein has made
clear and cogent averments regarding domestic violence while she
was in domestic relationship with applicant herein/original
respondent.

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13During pendency of the Writ Petition No.2308 of 2008,
it seems that the Joint Commissioner of Police made inquiry into
the allegations levelled by the respondent No.1 herein/aggrieved
person and the said Officer by conducting inquiry gave conclusion
on the basis of material collected by him that prior to 28/03/2008,
there was no complaint of any harassment by the respondent No.1
herein and prima facie her complaints are an outcome of
matrimonial disharmony between couple which has unfortunately
grown due to the psychiatric disorder of the respondent No.1
herein/aggrieved person. In my considered opinion, report given
by the officer of the Police Department on the basis of inquiry
conducted by him in the matter of complaints by the wife cannot
take place of judicial verdict on commission or non-commission of
acts of domestic violence. This report of the office of the Police
Department while conducting administrative inquiry cannot made
use of to throttle the provisions of welfare legislation such as the
D.V.Act. Ultimately, when an application under Section 12 of the
D.V.Act is moved by the aggrieved person, it needs to be taken to
its logical end by assessing veracity of the averments made by the
aggrieved person by the Court of law by which said application is

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Gaikwad RD

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(15)APLNo.452014(J).doc

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triable as per the provisions of the D.V.Act. Administrative inquiry
and findings arrived at by the Inquiry Officer cannot be a
substitute for remedy provided by welfare legislation like the
D.V.Act.

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14So far as decree of divorce made by the Family Court
and maintenance award by it is concerned, Section 36 of the
D.V.Act is very clear. Provisions of D.V.Act are in addition to and
not in derogation of provisions of any other law. Therefore, reliefs
provided in the D.V.Act can certainly be claimed in addition to
reliefs availed in other proceedings. Therefore, award of
maintenance or some monetary provisions regarding residence in
proceedings before the Family Court cannot prohibit the aggrieved
person from claiming reliefs under provisions of the D.V.Act. In
the matter of Juveria Abdul Majid Patni versus Atif Iqbal Mansoori
& Anr.3 it is held by the Honourable Supreme Court that an act of
domestic violence once committed, subsequent decree of divorce
will not absolve the liability of the respondent from the offence
committed or to deny the benefit to which the aggrieved person is
entitled under the domestic violence including monetary relief
under Section 20, compensation under Section 22, etc. Therefore,
merely because the Family Court has granted some reliefs to the
aggrieved person, she cannot be restrained from invoking
provisions of the D.V.Act for claiming appropriate relief. Section
27 of the D.V.Act deals with jurisdiction and aggrieved person has

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3 (2014) 10 SCC 736.

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Gaikwad RD

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(15)APLNo.452014(J).doc

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choice of filing the application even at the place of her temporary
residence. She has preferred an application under Section 12 of
the D.V.Act when she was residing at Pune. This fact is clear from
the cause title of the application under the D.V.Act. Hence, it
cannot be said that as now the aggrieved person is residing at
Nagpur, the application under Section 12 of the D.V.Act pending
on the file of the leaned Judicial Magistrate First Class, Pune is not
maintainable and, therefore, the proceedings deserves to be
quashed.

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15The respondent No.1 herein/aggrieved person has
alleged in her application that on 10th July 2007, the applicant
herein/original respondent had forcibly obtained her signature on
a document called as General Power of Attorney by threatening
her. According to the learned Counsel for the applicant herein/
original respondent, a suit bearing Special Civil Suit No.917 of
2012 came to be filed by the aggrieved person against the
applicant herein and that suit came to be dismissed and, therefore,
the proceedings under the D.V.Act are not maintainable. It is seen
that while deciding the said suit, contentions were not examined
on merit, but in the said suit, the plaint came to be rejected under
Order VII Rule 11 of the Code of Civil Procedure as the suit was
barred by law of limitation. Therefore, the Judgment in the
matter of K.G.Premshanker (supra) cannot be made use of by the
applicant herein. Similarly, findings given by the Family Court in a
petition for divorce can be made use of if occasion so arises by the

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Gaikwad RD

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(15)APLNo.452014(J).doc

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applicant herein/original respondent while defending the
application under Section 12 of the D.V.Act. However, merely
because the petition for divorce filed by him is granted, the
applicant herein cannot be heard to say that the proceedings
under the D.V.Act amounts to abuse of process of the Court.

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16As acts of the domestic violence on the part of the
applicant herein are specifically pleaded by the aggrieved person
and as it is found that she was sharing domestic relations with the
applicant herein, by no stretch of imagination, it can be said that
the proceedings under Section 12 of the D.V.Act amount to abuse
of process of Court requiring their quashment in the ends of
justice.

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17So far as issue of limitation is concerned, Section 468
of the Cr.P.C. has no application so far as proceedings under
Section 12 of the D.V.Act is concerned. Various reliefs are claimed
in such application and such reliefs can even be claimed under any
legal proceedings before a Civil Court as well as Family Court.
Section 12 of the D.V.Act is an enabling provision whereas Sections
18 to 22 are providing for rights of the aggrieved persons to seek
different reliefs like protection, residence, monetary relief, custody
of minor and compensation. For all above mentioned reliefs, there
is no limitation prescribed under the Cr.P.C. These reliefs cannot be
equated with offence for which limitation is prescribed by Section
468 of the Cr.P.C. Section 468 of the Cr.P.C. speaks about bar to

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Gaikwad RD

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(15)APLNo.452014(J).doc

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take cognizance after lapse of the period of limitation. Thus,
taking cognizance of offence is necessary and when there is no
incident of commission of any offence while applying under
section 12 for any of the reliefs under Sections 18 to 22 referred
hereinabove, there is no reason for taking cognizance, and
therefore provisions of Section 468 of the Cr.P.C. have no
application in case of proceedings under section 12 of the D.V.Act.
The penal provision under the D.V.Act so far as parties to the
proceedings are concerned, is under Section 31. Criminal
complaint can be filed when there is a breach of an order in an
application under Section 12 of the D.V.Act or any of the reliefs
under Sections 18 to 22 thereof. Limitation would be applicable
only after breach of an order in an application under Section 12 of
the D.V.Act, and therefore, such limitation cannot be made
applicable at the stage of an application under Section 12 for
reliefs under Sections 18 to 22. Thus, Section 468 of the Cr.P.C.
would be applicable only when there is a complaint for offence
punishable under Section 31 of D.V.Act and not otherwise.
Therefore, when there is no penal provision in the form of Section
12 or Sections 18 to 22 of D.V.Act, there is no reason to restrict the
aggrieved person from filing such application with reference to
period of limitation prescribed under Section 468 of the Code.

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18In the result, the application is devoid of any substance
and, therefore, the Order:

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Gaikwad RD

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(15)APLNo.452014(J).doc

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ORDER

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(i) Application is dismissed.

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(ii)Considering the fact that the application under Section 12 of the D.V.Act is pending since the year 2013, the learned trial Court to expedite the hearing thereof.

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(A.M.BADAR, J.)

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Raju D. Gaikwad

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Digitally signed by Raju D. Gaikwad Date: 2020.01.27 15:37:21 +0530

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Gaikwad RD

Hemant Namdeorao Nagrale v. Pratima @ Rani Hemant Nagrale and Anr.

Case brief

What is this about?

What did the court decide?

Hemant Namdeorao Nagrale v. Pratima @ Rani Hemant Nagrale and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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