Crl.R.P.No.

730/2019

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 1ST DAY OF APRIL 2021

BEFORE R
THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

CRIMINAL REVISION PETITION No.730/2019

BETWEEN:

SRI PUTTARAJU
S/O LATE MUDDAPPA
AGED ABOUT 55 YEARS
R/AT SHIVAKOTE VILLAGE AND POST
HESARAGHATTA HOBLI
BANGALORE NORT TALUK – 560 088 …PETITIONER

(BY SRI RAJANNA L, ADVOCATE)

AND:

SMT.SHIVAKUMARI
W/O PUTTARAJU
AGED ABOUT 48 YEARS
R/AT SHIVAKOTE VILLAGE AND POST
HESARAGHATTA HOBLI
BANGALORE NORT TALUK – 560 088 …RESPONDENT

(BY SRI PATEEL G.S. ADVOCATE)

THIS CRIMINAL REVISION PETITION IS FILED UNDER

SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE ORDER DATED 11.04.2016 PASSED BY THE II
ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BENGALURU RURAL
DISTRICT, BENGALURU IN CRL.MISC.NO.206/2011 AND THE
ORDER DATED 16.04.2019 PASSED BY THE IX ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU IN CRIMINAL APPEAL NO.19/2016.
 Crl.R.P.No.730/2019

THIS CRIMINAL REVISION PETITION COMING ON FOR

ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER ON I.A.No.1/2020

The respondent has filed the above application for

release of Rs.4,32,000/- deposited before the trial Court in her

favour.

2. The petitioner and the respondent are husband

and wife. The respondent filed Crl.Misc.No.206/2011 against

the petitioner before the trial Court under Section 12 of the

Protection of Women from Domestic Violence Act, 2005 (‘the

DV Act’ for short) seeking monetary relief and custody order

as contemplated under Sections 20 and 21 of the DV Act on

the ground that she was subjected to domestic violence in the

hands of the petitioner.

3. The trial Court by order dated 11.04.2016 partly

allowed the said petition, awarded Rs.8,000/- per month to

the respondent and her children as maintenance and house

rent. The petitioner was also restrained from taking away the

children from her custody and committing domestic violence.

 Crl.R.P.No.730/2019

4. The petitioner challenged the said order of the trial

Court before IX Additional District & Sessions Judge,

Bengaluru Rural District, Bengaluru in Crl.A.No.19/2016. The

First Appellate Court granted interim stay subject to the

petitioner depositing Rs.4,32,000/- before the First Appellate

Court towards arrears of maintenance. Accordingly, the

petitioner deposited the said amount before First Appellate

Court.

5. Ultimately on hearing the parties, the First

Appellate Court by the impugned order dismissed the appeal

and confirmed the order of the trial Court. Further the First

Appellate Court directed to transmit the amount in deposit to

the trial Court with a further direction to the trial Court to

release the said amount to the respondent wife.

6. Accordingly, the said amount is transmitted to the

trial Court and pending in Court deposit. The respondent has

filed the above application seeking release of the said amount.

 Crl.R.P.No.730/2019

7. Sri L.Rajanna, learned Counsel for the petitioner

opposes the application on the ground that the petition was

filed 10 years from the date of the alleged domestic incident,

therefore the petition itself was not maintainable. In support

of his contentions he relies upon the following judgments:

(i) Inderjit Singh Grewal v. State of Punjab & Anr.1

(ii) J.Srinivas vs. G.Dhanalakshmi2
(iii) Gurudev & Anr. vs. Jayashree3

8. Sri G.S.Pateel, learned Counsel for the respondent

refutes the contention regarding limitation on the ground that

Section 468 of Cr.P.C. is applicable only to the petition under

Section 31 of the DV Act and not to the application under

Section 12 of the DV Act filed for the reliefs under Sections 20

and 21 of the DV Act. In support of his contentions, he relies

upon the following judgments:

(i) Krishna Bhattacharjee v. Sarathi Choudhury4

(ii) Vikas and others v. Smt. Usha Rani & Anr.5

1
2012 Cri.L.J.309
2
Crl.P.No.2419/2009 DD 05.04.2013
3
Crl.P.No.11476/2013 DD 08.01.2014
4
(2016) 2 SCC 705
5
Crl.R.No.3084/2016 (O & M) DD 17.04.2018
 Crl.R.P.No.730/2019

9. The relationship between the parties is not in

dispute. The only question for consideration is, for an

application under Section 12 of the DV Act whether Section

468 of Cr.P.C. which prescribes the limitation is applicable?

10. Relying on Section 28 of the DV Act, learned

Counsel for the petitioner submits that to file application under

Section 12 of the DV Act, the Code of Criminal procedure is

applicable. Therefore he submits that Section 468 of Cr.P.C. is

applicable. Section 28(1) of the DV Act relied upon by learned

Counsel for the petitioner reads as follows:

“28. Procedure.—(1) Save as otherwise

provided in this Act, all proceedings under sections 12,
18, 19, 20, 21, 22 and 23 and offences under section
31 shall be governed by the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974).”

11. Reading of the above provision makes it clear that

for the proceedings under Sections 12, 18, 19, 20, 21, 22, 23

and 31 of the DV Act, the Code of Criminal Procedure is

 Crl.R.P.No.730/2019

applicable. Then he relies upon Section 468(2)(b) of Cr.P.C

which reads 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) ……………………………………….
(b) one year, if the offence is punishable
with imprisonment for a term not
exceeding one year.”

12. Reading of Section 468 (1) and 468(2)(b) of

Cr.P.C. itself shows that the bar of limitation for taking

cognizance is intertwined with an offence. Section 468 of

Cr.P.C. comes into picture only if there is an offence. If there

is no offence, no limitation.

13. Then the question is whether the act alleged in the

application under Section 12 of the DV Act itself constitutes an

offence by the respondent.

 Crl.R.P.No.730/2019

14. Section 12(1) & (2) of the DV Act which are

relevant for our purpose read as follows:

“12. Application to Magistrate.—(1) An

aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person
may present an application to the Magistrate
seeking one or more reliefs under this Act:
Provided that before passing any order on
such application, the Magistrate shall take into
consideration any domestic incident report received
by him from the Protection Officer or the service
provider.
(2) The relief sought for under sub-section
(1) may include a relief for issuance of an order for
payment of compensation or damages without

prejudice to the right of such person to institute a

suit for compensation or damages for the injuries
caused by the acts of domestic violence committed
by the respondent:
Provided that where a decree for any amount
as compensation or damages has been passed by
any court in favour of the aggrieved person, the
amount, if any, paid or payable in pursuance of the
order made by the Magistrate under this Act shall
be set off against the amount payable under such
decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure,
1908 (5 of 1908), or any other law for the time
 Crl.R.P.No.730/2019

being in force, be executable for the balance

amount, if any, left after such set off.

Thus in Section 12 of the DV Act if domestic violence is

not called or treated as an offence, it speaks of Court granting

relief and not of conviction and sentence.

15. So far this petition, Sections 20(d) and 21 of the

DV Act are relevant. They read as follows:

“20. Monetary reliefs.— (1) While disposing of an

application under sub-section (1) of section 12, the
Magistrate may direct the respondent to pay
monetary relief to meet the expenses incurred and

losses suffered by the aggrieved person and any

child of the aggrieved person as a result of the
domestic violence and such relief may include but

is not limited to—

(a) ………………………………………………………………….
(b) ………………………………………………………………….
(c) ………………………………………………………………….
(d)the maintenance for the aggrieved person as
well as her children, if any, including an
order under or in addition to an order of
maintenance under section 125 of the Code
of Criminal Procedure, 1973 (2 of 1974) or
any other law for the time being in force.
……………………………………………………………………………….”
 Crl.R.P.No.730/2019

21. Custody orders.—Notwithstanding

anything contained in any other law for the time
being in force, the Magistrate may, at any stage of
hearing of the application for protection order or
for any other relief under this Act grant temporary
custody of any child or children to the aggrieved
person or the person making an application on her
behalf and specify, if necessary, the arrangements
for visit of such child or children by the respondent:
Provided that if the Magistrate is of the
opinion that any visit of the respondent may be
harmful to the interests of the child or children, the
Magistrate shall refuse to allow such visit.”

Therefore even Sections 20 and 21 of the DV Act do not

treat the domestic violence as offence.

16. To attract Section 468 of Cr.P.C, essentially the

Act alleged must be an offence. Under the DV Act, the offence

is not defined, as defined in Section 40 of IPC. Therefore, we

have to revert to the General Clauses Act, 1897. Section 3(38)

of the General Clauses Act defines the offences as follows:

“3(38). “Offence” shall mean any act or

omission made punishable by any law for the time
being in force.”
 Crl.R.P.No.730/2019

10

17. Perusal of the above provision makes it clear that

to call an act as offence, act or omission must be made

punishable under law. As already pointed out, under Sections

12, 20 and 21 of the DV Act have not made the domestic

violence alleged thereunder punishable or defined them as

offence. Section 12 of the DV Act is only an enabling

provision to initiate enquiry to find out whether such act or

omission is committed.

18. Section 31 of the DV Act is Penalty Clause which

reads as follows:

“31. Penalty for breach of protection

order by respondent.—(1) A breach of protection
order, or of an interim protection order, by the
respondent shall be an offence under this Act and

shall be punishable with imprisonment of either

description for a term which may extend to one

year, or with fine which may extend to twenty
thousand rupees, or with both.

(2) The offence under sub-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 been caused by the accused.
 Crl.R.P.No.730/2019

11

(3) While framing charges under sub-section

(1), the Magistrate may also frame charges under
section 498A of 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.”

19. Perusal of Section 31 of the DV Act makes it clear

that only breach of the protection order or interim protection

order etc. passed under Section 12 of the DV Act constitutes

an offence and made punishable. As held by Punjab High

Court in Vikas’s case referred to supra, Section 12 of the DV

Act is only enabling provision. Therefore it is clear that the act

or omission contemplated under Section 31 of the DV Act is an

offence and the application under Section 12 of the DV Act

itself is not an offence.

20. When the application under Section 12 of the DV

Act is not covered under the term ‘offence’, Section 468 of

Cr.P.C. is inapplicable. Therefore the application of Section

468 of Cr.P.C. to an application under Section 12 of the DV Act

is clearly a misconception.
 Crl.R.P.No.730/2019

12

21. One has to bear in mind that the proceedings

under the DV Act are neither purely criminal nor civil

proceedings. The very object of the DV Act as could be seen

from the preamble is to protect the women against violence of

any kind occurring within the family. If at all the Act intended

to make each and every Act of domestic violence offences,

then Parliament would not have legislated separate law i.e.

IPC dealing with offences against Women like 498A, 306,

304B or offences against body in Chapter XVI of IPC. The

purpose of the DV Act is to protect and save the family.

22. In Inderjit Singh Grewal’s case referred to supra

it was held that there was already decree of judicial

separation. In that context in para 25 of the judgment, it was

held as follows:

“25. 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 and in consonance
with the decree of divorce which still subsists and thus,
the process amounts to abuse of the process of the
court. Undoubtedly, for quashing a complaint, the court
has to take its contents on its face value and in case
 Crl.R.P.No.730/2019

13

the same discloses an offence, the court generally

does not interfere with the same. However, in the
backdrop of the factual matrix of this case,
permitting the court to proceed with the complaint
would be travesty of justice. Thus, interest of justice
warrants quashing of the same.”

(Emphasis Supplied)

23. Reading of the above paragraph shows that the

Hon'ble Supreme Court also held that generally it does not

interfere with such cases and in the backdrop of the factual

matrix of the case, continuation of the proceedings amounts to

abuse of the process of the Court.

24. Distinguishing judgment in Inderjit Singh

Grewal’s case, the Hon'ble Supreme Court in subsequent

judgment in Krishna Bhattacharjee’s case referred to supra

held that the observation regarding domestic relationship in

Inderjit Singh Grewal’s case were based on the facts and

circumstances of the said case and they are not of general

application.
 Crl.R.P.No.730/2019

14

25. Further in para 32 of the judgment in Krishna

Bhattacharjee’s case referred to supra, the Hon'ble Supreme

Court held that the definition of the aggrieved person and

domestic relationship remains and the act of domestic violence

attracts the term ‘continuing offence’, therefore does not get

time barred.

26. In the judgments of the Hon’ble Supreme Court

referred to above, the interplay of Section 3(38) of the

General Clauses Act, Section 31 of the DV Act and Section 468

of Cr.P.C. had not fallen for consideration. In view of the later

judgment of the Hon'ble Supreme Court in Krishna

Bhattacharjee’s case referred to supra the judgments of this

Court in Srinivas’s case and Gurudev’s case cannot be

followed. Therefore this Court does not find any merit in the

contention that the petition was time barred. Under the

circumstances the respondent is entitled for withdrawal of the

amount. The application is allowed.

The trial Court shall release Rs.4,32,000/- to the

respondent herein subject to the result of this petition.

 Crl.R.P.No.730/2019

15

At this stage, learned Counsel for the petitioner submits

that trial Court awarded Rs.4,32,000/- as maintenance to the

respondent including her children who are major. Therefore he

submits only her share shall be released to her.

First of all the trial Court has not made any such

apportionment. Secondly it was not the case of the

petitioner/husband that children and mother have any

conflicting interest nor he examined any children before the

trial Court to state so. Therefore this Court finds the said

submission as vexatious and rejected accordingly.

Sd/-
JUDGE

KSR