Timelines in domestic voilence

 Late filing complaint matter raises questions of doubt.  One can attempt quashing based on merit.

Following judgment may be help full to some extent.

Dear Querist

Read the Judgement attached by Mr. Arvind, You get the answer of Your query...

visit nadeemqureshi1.wordpress.com

one point late filing and read the judgement and you find some more doubts

@tajobs......with reference to the query raised by the author regarding DV filed after separation, the inderit singh grewal case has been given as reference by arvind...request you to please give your view if the case can be used in arguement to justify dismissal of DV because of separation of more than a year. 

Originally posted by : fighting back
	@tajobs......XXXxxx .request you to please give your view if the case can be used iXXXXX.

1. CrPC applies in DV Act

"provisions of Section 468 CrPC that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Section 28 and 32 of the Act 2005 read with Rule 15 (6) of The Protection of Women from Domestic Violence Rules, 2006 which makes the provisions of CrPC applicable and stand fortified" [Para 24]

2. If CrPC applies in DV Act then various Sections of CrPC also gets applied in DV Act [Para 24] Correct or not ?


3. Now let us take a look at S. 468 CrPC which states as follows;

468. Bar to taking cognizance after lapse of the period of limitation. 

(1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) Six months, if the offence is punishable with fine only;

(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

¹[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

1. Ins. by Act 45 of 1978, Sec. 33 (w.e.f. 18-12-1978).

In DV Act fine provision as well as Penal provision is there under default. Means if you donot comply say of Protection Order then you are liable for fine as well as Penal provisions. Now from where Penal provisions get attracted? It is as per CrPC - is it not so!

So This SC citation could also be interpreted in this way that DV Act proceedings are governed by CrPC and limitation applies for filing DV Complaint. Now as far as imprisonment is concerned DV Act clearly says follow S. 125 CrPC. What does S. 125 CrPC says as per various views of SC and various State HC’s ? It says maximum 1 year imprisonment - is it not so !

So when fine as well as imprisonment gets attracted in DV Act as well as CrPC procedure wise applies then S. 468 CrPC is very much applicable in DV Act for cause of action be it divorce of parties happened or not or be it if divorce happened then S. 468 CrPC gets applied etc. as people here are interpreting even in Experts section re. 

https://www.lawyersclubindia.com/experts/Is-dv-maintenable--236801.asp

4. Re. for applicability of CrPC Limitation SC lays laid law in Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 and Noida Extrepreneurs Association Vs. Noida & Ors., (2011) 6 SCC 508

5. Thus 

        "In view of the above, we are of the considered opinion that permitting the  Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible XXXX thus, the process amounts to abuse of he process of the Court." [Para 25]

6. Also you should calmly read and understand

https://www.lawyersclubindia.com/forum/Dv-act-interpreted-in-terms-of-rule-6-sub-rule-5-45081.asp

which is very important way to interpret DV Act

I am aware you are intelligent in interpreting Laws which I observed reading your various posts and I am sure, if, you read calmly above paras and if case is yours and same is explained in above sequence para wise to a Magistrate Limitation as laid down under CrPC gets ipso facto applied to all DV Complaint cases which are filed after 1 year from “cause of action” 

You must be aware that in Criminal Law we call facts as “cause of action” whereas in Civil case we call same as “Jurisdiction”. But no case can proceed without ‘cause of action” in a Criminal proceedings which is very strict in interpretation.


You should also be able to explain to a Magistrate SC golden Rule on “cause of action” in a Criminal Case while explaining / submitting before a Magistrate why DV Act is not applicable in my case. 


People will say this SC reference which I gave is applicable for people in whose cases they are Divorced but I say it is not only applicable to them but when SC says that DV Act due to reading of its Rules is a “criminal” procedure code applied proceedings then it is for sure that S. 468 CrPC which is “criminal codes Law of Limitation for criminal case” also gets ipso facto applied. Though in reference SC citation the parties were divorcee which is secondary point while arguing before a Magistrate. 


This is the way citations gets applied is my view and there cannot be ‘exact” citation available as ‘exact facts” differ in every second case. Remove the facts in attached case where divorce happened but then why did SC took view of S. 498a CrPC and says later in para 25 that "it will amount to abuse of process of court if DV case is run" and you have the binding Law in hand!


Also tell me 

- can't S. 125 CrPC applies post divorce. ? Yes it can very well. 
- does not DV Act says procedure followed in DV is similar to S. 125 CrPC ? Yes it does.
- does not DV act says aggrieved person lived at any time in a domestic relationship? Yes it does.


Now interpret para 24 and para 25 in  Grewal Vs. State of Punjab & Anr. 6 (2011) SLT 434 and see that SC has not only said limitation applies but in stated case it applies due to divorce but limitation does apply is also strongly said by SC and they themselves referred to two above citations as in para 4. Is it not so? 


Tell me what are your counter arguments now if this SC citation affirms Limitation as in under CrPC or not that is mute que. instead of asking me to interpret it for you? 

It is all doable in 30 working days - Challenge it in Sessions Court with Urgency Hearing Application r/w Stay of trial Court proceedings ~ Go to HC with Call for Trial Court records r/w Stay of trial Court proceedings till next date of hearing at trial Court ~ Seek 15 days time at HC citing 6 (2011) SLT 434 to make Paper Book and file SLP in SC - SC Registry will admit it and will grant Stay of trial Court proceedings. 

[Last reply]

@TAjobs.....thank you very much sir, really appreciate your detailed response to my query.......my doubt is now very clear ...............thanks again............

Though Mr. Tajobs India's interpretation of the settled law and his explanation on various points are justifiable, the said citation concludes on a note with particular reference to the case in hand which is with regard to appeal against the dismissal of quash petition by the high court on the grounds thereof.  The universal applicability of the provisions of section 468 cr.p.c.can be opined  by interpreting more such issues which is not evident from the referred citation.