IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN PRESENT: THE HON’BLE MR. JUSTICE G. BHAVANI PRASAD CRIMINAL PETITION No.8171 of 2008 Between: Mohd. Mustafa Khan … Petitioner And Smt. Shabnam Sultana & another. … Respondents This Court made the following: THE HON’BLE MR. JUSTICE G. BHAVANI PRASAD CRIMINAL PETITION No.8171 of 2008 JUDGMENT:- This criminal petition has been ﬁled by the respondent in DVC.No.4 of 2008 on the ﬁle of the XI Additional Chief Metropolitan Magistrate, Secunderabad, challenging the maintainability of the case with reference to the other legal proceedings already instituted by the ﬁrst respondent against the petitioner. The grounds of challenge are not only on the basis of the absence of a single document for the ﬁrst respondent in support of her version, but also on the ground of the ﬁrst respondent not canvassing the grounds raised in the domestic violence case in O.P.No.249 of 2006 and M.C.No.57 of 2006 ﬁled by her earlier. The suit ﬁled by the petitioner in O.S.No.837 of 2007 for declaration, recovery of possession and perpetual injunction against the ﬁrst respondent and her parental family members was also referred to and the case ﬁled by the ﬁrst respondent in O.P.No.42 of 2008 for a mandatory injunction is claimed to be contradictory to the averments made in DVC.No.4 of 2008. A ﬁnal order was stated to have been passed in M.C.No.57 of 2006 ﬁled by the ﬁrst respondent for maintenance, which is impugned in Criminal Petition No.1936 of 2007 before this Court. The petitioner therefore contended that matters, which had been adjudicated, cannot be adjudicated once again under the Protection of Women from Domestic Violence Act, 2005. The proceedings in DVC.No.4 of 2008 are therefore, contended by the petitioner, to be an abuse of process of law and liable to be quashed under Section 482 of the Code of Criminal Procedure, 1973 in exercise of the inherent powers of this Court. Heard Sri Mirza Nisar Ahmed Baig, learned counsel for the petitioner and Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor for the second respondent. The ﬁrst respondent is represented by Sri Santosh Singh. The point for consideration is whether the proceedings in DVC.No.4 of 2008 are liable to be quashed taking recourse to the inherent powers under Section 482 of the Code of Criminal Procedure, 1973? The question has received a detailed consideration of this Court in Kothamasu Nagavenkata Suresh Babu vs. Kothamasu Suneetha and others[1], wherein after exhaustive reference to the relevant precedents on the aspect, it has been concluded as under: “T hus, the very nature of such rights, liabilities and proceedings arising out of relationships in matrimony, blood and adoption as illuminated by the legislative scheme, policy, purpose and object, obligates the Court to adopt an interpretation permitting the pursuit of various alternative remedies simultaneously or successively with the only duty for the respective Courts being to note the scope, content and nature of the other proceedings and to mould the grant of respective reliefs with reference to the reliefs granted in such other proceedings or the change of circumstances brought about on the reliefs granted or the subsequent grant of reliefs in the other proceedings. Hence, in respect of such rights and liabilities, the ﬁling, pendency and pursuit of the proceedings under a diﬀerent provision under a diﬀerent law are not per se a disabling factor against the prosecution of the proceedings under another provision under another law simultaneously or successively. However, there may be cases where rights and liabilities arising out of relationship in marriage or by blood or by adoption crystallized into a ﬁnal and irrevocable judicial decision concluding and foreclosing the legal obligations sought to be enforced through the subsequent proceedings, which may militate against the maintainability or continuance of the subsequent proceedings on established principles of law like, res judicata or constructive res judicata or estoppel or that the decision of a Civil Court is binding on the criminal Court, and the like. T he impact of ﬁnality of an earlier adjudication of the same issues on the legality and sustainability of such subsequent proceedings may make them amount to an abuse of the process of the Court. Interference with such proceedings to secure ends of justice will be on an altogether diﬀerent legal premise, but not on the mere inconvenience of multiplicity of proceedings with the same factual background, if they are otherwise permissible in law.” This view that the ﬁling, pendency and pursuit of the proceedings under a diﬀerent provision under a diﬀerent law are not per se a disabling factor against the prosecution of the proceedings under another provision under another law simultaneously or successively does not appear to have been dissented from or over ruled by any other precedent of this Court or the Apex Court. In fact, another learned judge of this Court held in A. Sreenivasa Rao and others vs. State of A.P. and others[2] that the proceedings under the Protection of Women from Domestic Violence Act, 2005 do not fall within the meaning of Article 20(2) of the Indian Constitution or Section 300 of the Code of Criminal Procedure, 1973 on the ground of double jeopardy. The learned counsel for the petitioner laid particular emphasis on sub-section (3) of Section 26 of the Protection of Women from Domestic Violence Act, 2005, whereunder the aggrieved person has been obligated to inform the Magistrate of the grant of any relief obtained by the aggrieved person in any proceeding other than the proceeding under this Act and the learned counsel with reference to the use of words “shall be bound” also relied on State of Maharashtra vs. Jugininder Lal[3], wherein the Apex Court considered the eﬀect of use of word ‘shall’ and opined with reference to the provisions under consideration that the legislative command could not have been conceived or expressed in a more clearer language which ought to have been not ignored by the High Court. There is absolutely no diﬃculty in construing the language of sub-section (3) of Section 26 as mandatory, but the question whether the absence of any such information from the aggrieved person to the Magistrate dealing with a proceeding under the provisions of the Protection of Women from Domestic Violence Act, 2005 will vitiate the proceeding itself is a diﬀerent question. In fact, this question was also adverted to in Kothamasu Nagavenkata Suresh Babu (1 supra), wherein with reference to sub-section (3) of Section 26, it was opined that the provision is meant to mould the grant of relief under the special statute with reference to such earlier proceedings and reliefs granted therein or any change of circumstances brought about by any subsequent proceedings or reliefs granted by them. It was held that the proceedings will be independent of each other becoming relevant to each other only for the purpose of moulding the ultimate relief to be granted respectively by taking note of the relief granted in the other proceedings. In view of the opinion expressed by this Court earlier, the contention that DVC No.4 of 2008 will amount to abuse of process of law, in view of the earlier proceedings in O.P.No.249 of 2006 or M.C.No.57 of 2006 or O.S.No.837 of 2007 or O.P.No.42 of 2008 or by the ﬁnal order passed in M.C.No.57 of 2006 granting maintenance cannot be countenanced. The only obligation for the ﬁrst respondent herein is to place before the Magistrate trying DVC.No.4 of 2008, the relief, which has been obtained by her in M.C.No.57 of 2006. The learned counsel for the petitioner also drew the attention of this Court to the prescribed proforma for ﬁling the case under the special statute, which obligated the aggrieved person to say about such relief obtained earlier in the other proceedings, which was left blank in DVC No.4 of 2008 ﬁled by the ﬁrst respondent, thus, violating the mandatory provisions of Section 26(3) of the Act. If there has been such violation, it is for the learned Magistrate trying DVC.No.4 of 2008 to be informed of the same in accordance with the procedure prescribed by law, for the learned Magistrate to take a view as to the consequences of non- compliance of Section 26(3). The consideration herein is conﬁned to the maintainability or otherwise of DVC.No.4 of 2008 in view of the earlier legal proceedings and in view of the precedents on the subject, on the mere fact that there was such earlier proceeding or grant of maintenance also, the domestic violence case cannot be said to be not maintainable, while expressing no opinion on the merits of the rival contentions and the alleged non-compliance with Section 26(3), which shall be determined on merits in accordance with law by the trial Court on the oral and documentary evidence to be placed before it by the parties. The criminal petition has to fail and is accordingly dismissed. ________________________ G. BHAVANI PRASAD, J Date: 16.11.2011 ES [1] 2009 (2) ALD (Crl.) 972 (A.P.) [2] 2011 (2) ALD (Crl.) 191 (A.P.) [3] 1966 MHLJ 573