Double Jeopardy - 498a pwdva for same cause of action prohibited by the Constitutional Law – NOT SUSTAINABLE

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28/04/2009

CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH

Crl.O.P.(MD)No.11066 of 2008
and
M.P.(MD)No.1 of 2009

1.K.Kamala
2.K.Pasungili
3.C.Vasantharaja
                    ... Petitioners
Vs.

1.M.Parimala
2.The District Social Welfare Office cum
  The District Dowry Prohibition Officer,
  Dindigul.
                    ... Respondents

PRAYER

Petition filed under Section 482 of the Code of Criminal Procedure
praying to call for the records relating to the impugned order in C.C.No.465 of
2008 on the file of the learned Judicial Magistrate No.II, Dindigul, and to
quash the same.
!For Petitioners   ... Mr.Veera Kathiravan
^For Respondents   ... Mr.R.R.Kannan for R1
               Mr.L.Murugan for R2
               Govt. Advocate (Crl.Side)

:ORDER
    This petition has been filed by the petitioners seeking to quash the
cognizance order passed by the learned Judicial Magistrate No.II, Dindigul, in
C.C.No.465 of 2008 as illegal and abuse of process of law and misuse of
provisions of the Protection of Women from Domestic Violence Act, 2005 (herein
after called as 'Act').

    2. The brief facts of the case are as follows:-
    The first petitioner is the mother-in-law, the second petitioner is the
sister-in-law and the third petitioner is the husband of the sister-in-law of
the first respondent.  The first respondent preferred a complaint against the
petitioners under the said Act.  The allegation against the first
petitioner/mother-in-law is that she wrote a letter to the Secretary, L.I.C.
Employees Association, Dindigul, where the first respondent is working and a
second letter to the Public Relation Officer, Deputy Commercial Tax Officer-IV,
Commercial Tax Office, Dindigul, where the first respondent's husband is
working, with some allegations against the petitioner, under the guise of
seeking for certain informations.  The only allegation as against the
petitioners 2 and 3 is that the 2nd petitioner/sister-in-law had written
complaint where the first petitioner/mother-in-law had put her signature.
Further, on 09.05.2008 the petitioners 2 and 3 were attacked the first
respondent and based on which, a complaint has been given and based on the
complaint a case has been registered in 128 of 2008 which is pending on the file
of the Police.  Further, the first respondent claimed compensation of Rs.10
lakhs under the Act.  The learned Judicial Magistrate concerned has also taken
cognizance of the same, as if the complainant is entitled for compensation.  The
offence said to have committed by the petitioners are  under Sections 18, 20,
21, 22 and 23 of the Act.  Based on the complaint, the 2nd respondent has
forwarded it to the trial court for prosecution and a criminal case was
registered in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate
No.II, Dindigul and they were arrayed as respondents/accused.  The learned
Judicial Magistrate No.II, Dindigul has taken cognizance and issued summons in
the said complaint.  Challenging the same, the petitioners have come forward
with the present Criminal Original Petition for the relief as stated supra.

    3. Heard Mr.Veera Kathiravan, learned counsel appearing for the petitioner
and Mr.R.R.Kannan, learned counsel appearing for the first respondent and
Mr.L.Murugan, learned Government Advocate(Crl.Side) appearing for the second
respondent.

    4. The learned counsel for the petitioner would submit in his argument
that the petition given by the first respondent against the petitioners herein,
who are the mother-in-law, sister-in-law and husband of the sister-in-law of the
first respondent, was without any verification to be submitted by the protection
Officer before the learned Judicial Magistrate No.II, Dindigul and the same was
taken cognizance and summons were issued in contravention of the provisions of
the Act  and therefore, the order of cognizance passed by the learned Judicial
Magistrate No.II, Dindigul, in C.C.No.465 of 2008 has to be quashed.

    5. The learned counsel for the petitioners would further submit in his
argument that the first respondent's husband was not included as respondent and
therefore, it cannot be said that the petitioners are liable to be proceeded
under the provisions of the said Act. The said inclusion of female members, as
the relatives of the husband, as respondents, is not sustainable under Section
2(q) of the  Act. He would further submit that the allegations said to have been
made against the petitioners in Form-I under the Act, are not adequate, to take
cognizance and on the face of it, the offence against the petitioners pertaining
to the 3 days' cause of action viz., 26.04.2008, 30.04.2008 and 09.05.2008 are
not sustainable and admittedly, on 09.05.2008, a complaint has been already
lodged before the Police, North Police Station, Dindgul Town, Dindigul, and the
Police have also given the receipt in C.S.R.No.128 of 2008.  Now, the very same
cause of action, has been repeated here and it would amount to 'double jeopardy'
against the petitioners.

    6. The learned counsel would further submit that the allegations as
against the 2nd and 3rd petitioners in the said complaint would be that they
helped the first petitioner to write the petition against the first respondent
on 26.04.2008 and another petition against the husband of the first respondent
on 30.04.2008 to their respective offices.  He would state that no material has
been produced for the purpose of incriminating the 2nd and 3rd petitioners and
merely because they are living with the first petitioner, it cannot be said that
they have instigated the first petitioner to write so.  Moreover, he would also
submit that the dispute between the first petitioner and her son namely, the
husband of the first respondent and another younger son, in respect of the
property, bequeathed by her husband in her favour for enjoying the property till
her lifetime and the vested remainder to the sons.  The first petitioner is in
possession of the said property, situated in Salem, in pursuance of her life
interest, the first respondent wanted her  to get out of the property and
immediately she caused disturbances by harassing the first petitioner by giving
this complaint.  He would further submit that the allegations in the letter
dated 26.04.2008, written by the first petitioner to the Secretary, L.I.C.
Employees Association might not have been disclosed to the first respondent for
warranting a cause of action.  For this, an enquiry has to be conducted by the
L.I.C. Employees Association, where the first respondent is working and
therefore, there could not be any mental stress or domestic violence as told by
the first respondent in the petition.

    7. He would further submit that the letter dated 30.04.2008 written by the
first petitioner seeking for information about the particulars of the employment
of her son from his employer, and her son was not in any way prejudiced by the
first petitioner and absolutely there was no cause of action  for the aggrieved
person. If any stress is emanating out of the letter dated 30.04.2008, it would
be the first petitioner's son and the second cause of action is also not
sustainable both in law and on facts.  Without following of the legal
formalities, the learned Judicial Magistrate No.II, Dindigul, has taken the
complaint on file, which has to be quashed.

    8. The learned counsel for the first respondent would submit in his
argument that after taking cognizance of the complaint, about 39 hearings have
passed and the petitioners have appeared for 5 hearings only and now, they have
come forward with this case at the belated stage only.  He would further submit
that the petitioners are certainly attracted under the definition of 'domestic
relationship' as per Section 2(f) of the said Act and the first respondent is
entitled to give such a complaint against the petitioners, who are defined as
'respondents', as per Section 2(q) of the said Act and this petition has been
filed only for prolonging the case so as to defeat the provisions of Section
12(5) of the Act, regarding the disposal of the case made under Sub-Section (1)
within a period of 60 days from the date of taking cognizance.  Therefore, he
requests the Court to dismiss the petition as not sustainable.

    9. The learned Government Advocate (Criminal Side) would reiterate the
argument of the first respondent and he would also submit that the Protection
Officer has promptly filed the application in time and it has been taken
cognizance and there is no infirmity in the order passed by the learned Judicial
Magistrate No.II, Dindigul in taking cognizance of the case and therefore, the
petition may be dismissed.

    10. I have carefully considered the submissions made on either side.

    11. The foremost contention of the petitioners would be that the
implication of the petitioners, as respondents in C.C.No.465 of 2008 on the file
of the learned Judicial Magistrate No.II, Dindigul, cannot be sustained as
female relatives of the husband are not attracted under the definition of the
respondents under Section 2(q) of the said Act. For the better understanding the
meaning of the term 'respondent', we have to extract the said provision itself.
Section 2(q) runs as follows:
"(q)"respondent" means any adult male person who is, or has been, in a domestic
relationship with the aggrieved person and against whom the aggrieved person has
sought any relief under this Act:
    Provided that an aggrieved wife or female living in a relationship in the
nature of a marriage may also file a complaint against a relative of the husband
or the male partner;"

    12. According to the main part of the said Section, the respondent in any
case means any adult male person who must be in a domestic relationship with the
aggrieved person.  However, the proviso to Section 2(q) of the said Act, would
go to show that an aggrieved wife or a female partner may also file a complaint
against a relative of husband or male partner. Whether the term 'a relative'
will spread its ambit  to attract the petitioners, who are the female relatives
of the husband, is a question to be decided.  No doubt, the first petitioner is
the mother and the second petitioner is the sister and the 3rd petitioner is the
bother-in-law of the husband of the first respondent.  Therefore, a relative  in
a  'domestic relationship', shall be the 'respondent' in a case.  The definition
of domestic relationship under Section 2(f)  runs as follows:
"(f)"domestic relationship" means a relationship between two persons who live or
have, at any point of time, lived together in a shared household, when they are
related by consanguinity, marriage, or through a relationship in the nature of
marriage, adoption or are family members living together as a joint family;"

    13. According to the said Section, two persons should live at any point of
time together in a shared household, when they are related by consanguinity,
marriage or through a relationship in the nature of marriage, adoption or as
members of the joint family.  This domestic relationship qualification is given
to a relative member of her husband, to be impleaded as 'respondent'.  According
to the petitioners they are not attracted by the said provisions.The insistence
of the learned counsel for the petitioners would be that when the term
'respondent' is defined with a qualification as to be an adult male person in
the Section, the reference "a relative" should also be a male relative of the
husband or  male partner and therefore, the case against the 1st and 2nd
petitioners, who are the female members, cannot be sustained. For the purpose of
determining as to whether a female relative of the husband cannot be a
respondent in view of the mentioning of any adult male person in the Section,
and therefore it would also apply  to the proviso of 2(q), we have to
necessarily to apply our mind to find the intention of the legislation, from the
Statement of Objects and Reasons for enactment of this Act.  In the sub Section
(i) of the 4th paragraph of the Statement of Objects and Reasons, it has been
categorically mentioned as follows:
"4.The Bill, Inter alia, seeks to provide for the following:
(i) It covers those women who are or have been in a relationship with the abuser
where both parties have lived together in a shared household and are related by
consanguinity, marriage or through a relationship in the nature of marriage or
adoption.  In addition, relationships with family members living together as a
joint family are also included.  Even those women who are sisters, widows,
mothers, single women, or living with the abuser are entitled to legal
protection under the proposed legislation.  However, whereas the Bill enables
the wife or the female living in a relationship in the nature of marriage to
file a complaint under the proposed enactment against any relative of the
husband or the male partner, it does not enable any female relative of the
husband or the make partner to file a complaint against the wife or the female
partner."

    14. The objects and reasons would categorically show that the aggrieved
wife or female partner can file a complaint against any relative of the husband
or male partner.  Thus it helps us to understand the word 'a relative' mentioned
in the proviso to section 2(q), could be construed as any relative.  Will the
words any relative include both female and male relatives? is an important
question to be decided at this juncture.   According to 'Concise Oxford English
Dictionary - Eleventh Edition', "any" means, to refer to one or some of a thing
or number of things, and it does not matter how much or how many.  As regards,
the meaning of 'any', it does not restrict to a singular and a particular
category, it applies to all categories or classes of persons.  In this
background, when we approach the object and reasons, it has been categorically
mentioned that the bill was prepared to enable the wife or the female partner
living in a relationship in the nature of marriage to file a complaint under the
proposed enactment against any relative of the husband or the male partner, even
though, it does not enable any female relative of the husband or of the male
partner to file a complaint against the wife or the female partner.  Therefore,
the Act has been enacted to protect the wife or the female partner, who is
living with her husband or a male partner in a relationship in the nature of
marriage from the harassment or violence emanated from any of the relative of
her husband or male partner living in a relationship in the nature of marriage,
including the adult female persons of the family.  The benefits and protection
given under this Act is not available to other  female members of the family.
Therefore, the meaning given in the proviso of Section 2(q) would be against any
relative of the husband or male partner which includes, the petitioners 1&2
being the adult female persons as per the allegations made by the first
respondent.

    15. As regards, the maintainability of the allegations, we have to see the
ingredients of the complaint made by the first respondent against the
petitioners as 'respondents' in the said case which is pending before the court
below.  The allegations against the 2nd and 3rd petitioners would be that they
helped the first petitioner to write and send a petition to the Secretary,
L.I.C. Employees Association, where the first respondent is working and to the
Public Relation Officer, Deputy Commercial Tax Officer-IV, Commercial Tax
Office, Dindigul, where the first respondent's husband is working. Except the
said allegations, nothing was mentioned against the petitioners in respect of
cause of action dated 26.04.2008 and 30.04.2008.

    16. On 26.04.2008, the first petitioner was stated to have written a
complaint to the Secretary, L.I.C.Employees Association, Dindigul Branch I, 45,
New Agraharam, Palani Road, Dindigul.  Similarly, on 30.04.2008, the first
petitioner is said to have sent a letter seeking for information under the Right
to Information Act, to the Public Relation Officer, Deputy Commercial Tax
Officer-IV, Dindigul. These letters were signed by the first petitioner only.
Either the letters were neither signed nor attested by the second and third
petitioners or nothing is available to show that both the letters were prepared
by the 2nd and 3rd petitioners.

    17. In the aforesaid circumstances, it cannot be said that there is a
prima facie case against the petitioners 2 and 3 in respect of the cause of
action dated 26.04.2008 and 30.04.2008.

    18. So far as the second cause of action dated 30.04.2008 is concerned, it
was a letter alleged to have been written by the first petitioner to the Public
Relation Officer, Deputy Commercial Tax Officer-IV, Dindigul seeking for certain
information from the said office regarding the employment of the first
petitioner's son. The allegations in the said letter is in respect of the first
petitioner's son's employment and he is a male member and the first respondent
is in no way aggrieved as it was not addressed to her office.  Moreover, the son
of the first petitioner, who is the husband of the first respondent, is the
aggrieved person and not the first respondent.  The said letter would in any way
affect or harm the first respondent to give a complaint against the petitioners
under the provisions of the said Act.

    19. Regarding the third cause of action dated 09.05.2008, it has been
categorically mentioned in the complaint that the petitioners 1 and 2 and two
other persons had come to the office of the first respondent and the second
petitioner had abused the first respondent, slapped on her cheek and twisted her
hand.  It was also alleged that the first petitioner had criminally intimidated
the first respondent and for that the first respondent had given a complaint to
North Town Police Station, Dindigul and she was given with a receipt in
C.S.R.No.128 of 2008.  It has been also told that the Police is yet to take
action against the petitioners.  It has not been averred by the first respondent
that the Police, North Town Police Station, Dindigul had dropped the action.
When the said case is pending for the same cause of action, the complaint given
by the first respondent in the third cause of action is not sustainable. It has
been taken cognizance by the learned Judicial Magistrate No.II, Dindigul, which
would be certainly amounting to 'double jeopardy', as prohibited by the
Constitutional Law. Whenever a complaint is given by the Protection Officer
before the Court, the Court must apply its mind and go through the provisions of
the special enactment and to take cognizance of the cases, if the allegations
are attracting the provisions of the said Act.  But, in this case, it is evident
that it had abruptly taken the complaint without going through the provisions of
the said Act.

    20. For the foregoing discussion, I am of the considered view that the
complaint does not disclose any cause of action against the petitioners 2 and 3
even though they are the relatives of the husband of the aggrieved wife and no
case is made out in all the three causes of action namely, 26.04.2008,
30.04.2008 and 09.05.2008. As regards, the first petitioner is concerned, the
first respondent, who is said to be the aggrieved wife, had chosen to file
complaint against the first petitioner being the closest relative of her husband
for all the three cause of action.  It is found that the cause of action dated
30.04.2008 and 09.05.2008 can not be sustained against the first petitioner.
The second cause of action dated 30.04.2008 had pointed out only at the husband
of the first respondent and not against the first respondent.   Regarding the
third cause of action dated 09.05.2008 already a Police complaint is pending
before the Dindigul North Police and the present complaint based on the same
cause of action dated 09.05.2008 would be certainly amounting to a 'double
jeopardy'.  The cause of action dated 26.04.2008 could alone be taken cognizance
by the court and that too only against the first petitioner.  It is already
considered that an adult female relative of the husband of the aggrieved person
may also be proceeded under the provisions of the Act.  For the foregoing
discussions, it has become necessary for this Court to quash the entire case
against the 2nd and 3rd petitioner and the case in respect of causes of action
dated 30.04.2008 and 09.05.2008 against the first petitioner.  Accordingly the
cognizance taken by the learned Judicial Magistrate No.II, Dindigul, in
C.C.No.465 of 2008 has been partially quashed and the learned Judicial
Magistrate No.II, Dindigul is competent to proceed against the first petitioner
alone in respect of the cause of action dated 26.04.2008 only and nothing-else.

    21. The submission of the learned counsel for the petitioner at this
juncture regarding the claim for compensation of Rs.10 lakhs should have been
referred to.  According to the provisions of the said Act, only the penalty has
been envisaged under Section 31 of the Act. Therefore, there is no provision for
awarding compensation.

    22. According to the provisions of the  Act, there is no reference as to
the awarding of compensation.  Therefore it is open for the learned Judicial
Magistrate No.II, Dindigul, to apply his mind at the time of trial and to pass
appropriate orders in accordance with law.

    23. With the aforesaid observation, the petition is ordered partially and
the cognizance taken by the learned Judicial Magistrate No.II, Dindigul in
C.C.No.465 of 2008 is quashed in respect of the case taken on file against the
petitioners 2 and 3 and in respect of the causes of action namely, 30.04.2008
and 09.05.2008 against the first petitioner. The learned Judicial Magistrate
No.II, Dindigul is competent to proceed with the case against the first
petitioner in respect of the cause of action dated 26.04.2008 alone. Petition is
ordered accordingly. Consequently, connected M.P. is closed.

nbj

To
1.The District Social Welfare Office cum
  The District Dowry Prohibition Officer,
  Dindigul.

2.The Judicial Magistrate No.II,
  Dindigul.