A single judge Bench of the Delhi High Court, last week, held that High Court cannot entertain the petition in its extraordinary power under Section 482 Cr.PC, given the fact that there is a clear remedy of Appeal under Section 29 of the Protection of Women against Domestic Violence Act.
"Preliminary objection of the Respondent has given rise to a neat legal nodus before this Court being the maintainability of a Petition under Section 482 Cr.PC, when an alternate remedy of a Statutory Appeal under Section 29 of the Act is available to the Petitioner. Reading the provisions of the Act shows that under the Scheme of the Act, Section 29 provides for an Appeal to the Court of Sessions within 30 days from the date on which the Order made by the Learned Metropolitan Magistrate is served on the aggrieved person or the Respondent, as the case may be, whichever is later", noted Justice Jyoti Singh.
Petitioner had filed a complaint under the Act before the Trial Court. By way of this complaint, Petitioner sought various reliefs such as Protection Order under Section 18 of the Act, order restraining the Respondent from dispossessing the Petitioner from the shared household, and monetary reliefs such as medical expenses and rentals including household expenses. Custody orders with respect to the three minor children were also sought under Section 21 of the Act. Along with the complaint, Petitioner also filed an Application under Section 23 of the Act for grant of various interim reliefs, one amongst them being a direction to the Respondent to grant temporary custody of the children to the Petitioner.
On 20.04.2020, Petitioner had filed a Petition under Section 482 Cr.PC before Hon'ble High Court seeking directions as under:-
"A. Direct the respondent to furnish the address where he is presently residing with the children,
B. Direct the respondent to facilitate meeting by way of video conferencing with the children everyday till they remain in his care and custody.
C. To grant the interim custody of the three minor children namely Baby Riddhi aged 10 yrs, Baby Radhika aged 7 yrs and Baby Ratna aged 3 yrs to the petitioner till the issues are resolved in Mediation.
On 24.04.2020, the Hon'ble High Court noted that for the sake of emotional quotient and robust psychological health, the mother should be provided unhindered access, if not physically, then through video conferencing in the prevailing circumstances. Order was accordingly passed in the said Petition, whereby an interim arrangement was arrived at, giving the Petitioner the right to interact with the children through skype, etc. This order was subsequently continued keeping in view the fact that the Petitioner was in a self-quarantine, having visited a Police Station on 18.04.2020.
On 01.06.2020, Learned Magistrate directed that the custody of the children would continue to remain with the father/Respondent herein and as an interim measure visitation rights were granted to the Petitioner. Thus, the Hon'ble High Court of Delhi had disposed of the petition filed before it, directing that the interim arrangement of video conferencing shall continue, as prayed for by the Petitioner.
Then, the Petitioner filed another petition under Section 482 Cr.PC seeking directions to set aside the Order dated 01.06.2020 passed by the Learned Metropolitan Magistrate.
An objection had been raised by Counsel for the Respondent against the maintainability of the present Petition before this Court. The Counsel submitted that the Courts have repeatedly held that when an alternate and efficacious remedy of Appeal under Section 29 of the Act is available, Petition under Section 482 Cr.PC would not lie. "It is not open to the aggrieved party to bypass the remedy of Appeal under the Act, which is a complete Code in itself."
Justice Singh noted that "a profound reading of several judgments (of the Supreme Court) shows that the Court has time and again spelt out clear restraints on use of extraordinary powers and observed that High Courts should not go beyond those wholesome inhibitions, unless the extraordinary circumstances cry for immediate and timely judicial interdiction or mandate. As the quote goes in one of the judgments "Mentor of law is justice and a potent drug should be judicially administered"."
Justice Singh emphasized that the inherent powers of the High Court are not conferred by the Criminal Procedure Code and are only saved by it and nothing can affect its amplitude, yet Courts have imposed self limitations for exercise of the power when there are specific provisions of alternative remedies, and invasion in areas, so set apart, is in exceptional and only in compelling circumstances.
The Judge iterated that the Court is not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482 Cr.PC, given the fact that there is a clear remedy of Appeal under Section 29 of the Act.
The Judge also stated that the Petitioner has not been able to substantiate any reason put forth compelling this Court to take a divergent view.
Justice Singh acknowledged that, 'no doubt the facts and circumstances of a given case could be egregious and compelling, demanding immediate judicial intervention by this Court and invasion into domains exercisable by subordinate Courts under Special Statutes' but added that the present case does not call for exercise of the said mandate.'
Justice Singh concluded that the present facts and circumstances do not call for any urgent intervention to permit the Petitioner to bypass the remedy of Statutory Appeal. Petitioner has been unable to make out a case how and why the remedy of Appeal is not efficacious.
The bench also refused to accept the argument that since the matter relates to custody of minor girls, remedy of appeal is not efficacious. "Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all „orders‟ and has not made any exception to orders relating to custody", expounded the Single Judge. Secondly, the court was of the view that it is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts.
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