Dismissed

Rajat Prafulla Pashine v. Smt Shubha Rai @ Shubha Rajat Pashiney

Chhattisgarh HC27 Jul 2023TPCR/24/2022

Case brief

AI extract

What is this about?

The High Court, Bilaspur dismissed a petition preferring transfer of a criminal case under the Domestic Violence Act from the Judicial Magistrate to the Family Court. The court held that transfer is not allowed as it would deprive the parties of the statutory right of appeal to the Sessions Court under Section 29 of the Act.

What did the court decide?

Petition under Section 407 Cr.P.C. for transfer of case from J.M.F.C. to Family Court was dismissed.

Rajat Prafulla Pashine Vs Smt Shubha Rai… — Civil Procedure and Limitation | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Order r eserved on 21/07/2023

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Order delivered on 27/07/2023

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TPCR No. 24 of 2022

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1. Rajat Prafulla Pashine S/o Prafulla Pashiney Aged About 39 Years R/o C-1102, Marvel Fria, Near Kambal Bagh Society, Wagholi, Pune, P.S. Lonikand, District Pune (Maharashtra) Pin 412207, However, Presently R/o 38/A, Anand Nagar, Near Central Jail, Durg, Chhattisgarh.

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2. Dr. Prafulla Kumar Pashiney, S/o Late N.P. Pashiney, Aged About 76 Years R/o Flat No. 102 Plot No. 29, Siddhesh Sai Vihar Apartment, Vidya Vihar Colony, Pratap Nagar, Nagpur, P.S. Pratap Nagar, District Nagapur (Maharashtra) Pin 440022.

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3. Smt. Nayantara Pashiney W/o Dr. Prafulla Kumar Pashiney Aged About 69 Years R/o Flat No. 102 Plot No. 29, Siddhesh Sai Vihar Apartment, Vidya Vihar Colony, Pratap Nagar, Nagpur, P.S. Pratap Nagar, District Nagapur (Maharashtra) Pin 440022.

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4. Smt. Richa Mohabey W/o Amit Mohabey Aged About 45 Years R/o G-402, Sylvan Heights, Sanewadi, Aundh, Pune, P.S. Aundh, District Pune, (Maharashtra) Pin 411007.

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5. Smt. Rashmi Katakwar W/o Rohit Katakwar, Aged About 42 Years R/o Flat No. 703, Prakuti Pearls CHS Ltd. Hiranadani Estate, Thane West, P.S. Thane, District Thane (Maharashtra) Pin 400607.

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---- Petitioners

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Versus

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Smt Shubha Rai @ Shubha Rajat Pashiney W/o Rajat Pashiney, D/o Shri Kamlesh Kumar Rai, Aged About 33 Years R/o D- 44-45, Akanksha Kunj, Risali, Bhilai, District Durg, Chhattisgarh.

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---- Respondent

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For Petitioners : Mr. Hari Agrawal, Advocate. For Respondent : Mr. Aman Tamboli, Advocate.

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Hon'ble Shri Sanjay Kumar Jaiswal, Judge

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CAV Order

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The instant petition under Section 407 of Code of Criminal Procedure, 1973 has been preferred by the petitioners with the prayer that “this Hon’ble Court may be pleased to allow this petition and transfer the M.J.C. Criminal

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Case No. 80/2021 (Smt. Shubha Rai @ Shubha Rai Pashine vs. Rajat Prafulla Pashine & Ors.) pending before the Court of learned Judicial Magistrate First Class, Durg, District – Durg to the Court of the Principal/Additional Judge, Family Court, Durg, District – Durg and/or pass such other orders in favour of the petitioners as this Hon’ble Court may deem fit in the facts and circumstances of the case.”

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Learned counsel for the petitioners submits that the cases bearing M.J.C. Civil (Family Court) No. 59/2022 (Rajat Prafulla Pashine Vs. Smt. Shubha Rajat Pashine), C.S. No. A-376/2022 (Rajat Pashine Vs. Smt. Shubha Rai Pashine & Ors.), C.S. No. A-235/2020 (Smt. Shubha Rai @ Smt. Shubha Rajat Pashine vs. Rajat Prafulla Pashine) and Criminal MJC No. 311/2020 (Smt. Shubha Rai @ Smt. Shubha Rajat Pashine & Ors. Vs. Rajat Prafulla Pashine) are pending before the Family Court, Durg. Another subjected case bearing Criminal M.J.C. No. 80/2021 (Smt. Shubha Rai @ Smt. Shubha Rajat Pashine vs. Rajat Prafulla Pashine & Ors.) is pending before the J.M.F.C., Durg.

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He further submits that all the petitioners are residents of Maharashtra and are continuously appearing before the Family Court, Durg for the aforesaid pending cases, therefore, prays for the transfer of the Criminal M.J.C. No. 80/2021 from J.M.F.C., Durg to Family Court, Durg for their convenience. He placed reliance on the decision of Supreme Court in the matter of

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Sandip Mrinmoy Chakraboarty v. Reshita Sandip Chakrabarty & Another , reported in 2018 SCC OnLine Bom 2709 . In which it has been held that the relief which is available to an aggrieved person under Sections 18, 19, 20, 21 and 22 of Domestic Vilence Act, 2005 can also be sought in proceedings instituted before the Civil Court, Family Court or Criminal Court.

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In the case of Sandip Mrinmoy Chakraboarty (Supra) it has been held in

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para 19 as under:-

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“ 19. Coming to the present controversy which this Court is called upon to deal with viz. relief that is sought for transfer of proceedings pending on the file of the learned Judicial Magistrate First Class at Cantonment Court, Pune to the Family Court at Pune, the apprehension expressed by the learned counsel for the respondents that the Family Court is not clothed with the powers as the one which is conferred on the Magistrate under Section 23 of the Domestic Violence Act, 2005 is misconceived and since it is already noted above that the Family Court which acts as a Civil Court and since it is vested with all powers of Civil Court which includes specific provision to pass interim orders, the said apprehension can be dispelled and it is to be noted that the Family Court is competent not only to deal with the application preferred under Section 12 and specifically in the light of the powers conferred by Section 26 of the Domestic Violence Act, 2005 the relief available under Section 18, 19, 20, 21 and 22 can be sought in proceeding before the Family Court and the Family Court being a Civil Court is empowered to exercise all the powers of the Civil Court which would include a power to grant interim and ex-parte orders.”

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Learned counsel for the respondent submits that Section 29 of the Protection of Women from Domestic Violence Act provides that an appeal against an order passed by the Judicial Magistrate First Class lies before the Sessions Court whereas Section 19 of the Family Courts Act provides that an appeal or a revision against an order of Family Court lies before the High Court. So, if this petition is allowed, it will curtail a statutory right of appeal of the respondent. He next submits that the petitioners are already appearing in the Domestic Violence Act case before the Learned Judicial Magistrate First Class. They are also appearing in the Criminal Case under Section 498-A before the learned JMFC, thus they should have no problem in appearing before the JMFC in this case too and this petition has been filed just to harass the respondent. He next submits that the proceedings of the Domestic Violence Act are civil in nature whereas this petition has been filed under Section 407 of the Cr.P.C. and therefore the same is not maintainable. He lastly submits that a complaint under Section 12 of the

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Domestic Violence, Act can be filed only before the Judicial Magistrate First Class and he is only competent to entertain it. He placed reliance on the decision of the Hon’ble Supreme Court in the matter of Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi, reported in ( 2017 ) 14 SCC 373, and on the decision of this Court in the matter of Smt. Neetu Singh Vs. Sunil Singh, reported in AIR 2008 Chhattisgarh 1.

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I have heard learned counsel for the parties and considered their rival submissions and also went through the record.

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7. Section 27 of Domestic Violence, Act reads as under:

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“27 Jurisdiction. - (1) The Court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which-

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(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

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(b) the respondent resides or carries on business or is employed; or

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(c) the cause of action has arisen,

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Shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.

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(2) Any order made under this Act shall be enforceable throughout India.”

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8. Section 29 of Domestic Violence, Act reads as under:-

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“ 29. Appeal. - There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.”

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In the case of Smt. Neetu Singh (Supra), this Court has held in para 10 which is as under:

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“10 . In view of the above scheme of the Act, specially as per the provisions of Section 26 of the Act, the appellant herein is entitled to seek relief available to her under Sections 18, 19, 20, 21 and 22 of the Act, 2005 in the maintenance proceeding pending in the Family Court, Bilaspur. But the appellant is required to move an application under Section 26 read with Section in which she is seeking relief. However, instead of doing that, the appellant moved an independent

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fresh application under Section 12 of the Act, 2005 which can be entertained only by the Magistrate having jurisdiction. An application under Section 12 cannot be filed before Family Court because proceeding under Section 12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application.”

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As per Section 27 & 29 of the Domestic Violence Act, and in the light of cited matters by the respondent, the instance case comes under the Jurisdiction of Judicial Magistrate First Class, Durg and all the other matrimonial cases of the parties are pending before the Family Court, Durg. It is also clear from the case cited by the respondent that if the matter of complaint under Section 12 of the Domestic Violence, Act is transferred to the Family Court, it would curtail the statutory right of the parties enshrined under Section 29 of the Domestic Violence Act, 2005.

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In light of above facts and circumstances of the case, and the law laid down in the subject matter, I am not inclined to transfer the M.J.C. Criminal Case No. 80/2021 (Smt. Shubha Rai @ Shubha Rai Pashine vs. Rajat Prafulla Pashine & Ors.) pending before the Court of learned Judicial Magistrate First Class, Durg, District – Durg. Accordingly, this petition is dismissed.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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H.L. Sahu

Rajat Prafulla Pashine v. Smt Shubha Rai @ Shubha Rajat Pashiney

Case brief

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Rajat Prafulla Pashine v. Smt Shubha Rai @ Shubha Rajat Pashiney

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