* 1 * W.P. 1668.2010 25.11.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1668 OF 2010 ALONGWITH MISC. APPLICATION NO. 406 OF 2010 IN CRIMINAL WRIT PETITION NO. 1668 OF 2010 Ms. Tripta Shahani @ Tripta Malhotra ..... Petitioner V/S. Mr. Pulin Malhotra & anr. .........Respondents * * * * * * Mrs. Harjeet Kaur, Advocate for the petitioner. Mr. R.V. Bhasin i/by. Ms. Mona Malhotra, Advocate for respondent no.1. Mrs. M.M. Deshmukh, APP for State-respondent no.2. Coram : Smt. R.P. SondurBaldota, J. 25 November, 2010. P.C. : 1. The appellant-wife has preferred this writ petition to challenge the order dated 7th April, 2010 passed by the Sessions Court in Criminal Appeal No. 163 of 2010 filed by the * 2 * W.P. 1668.2010 25.11.2010 respondent-husband. The appeal filed by the husband challenged two orders of the Metropolitan Magistrate, 22nd Court, Andheri, Mumbai passed in Criminal Case No. 566/DV/2009 filed by the petitioner-wife under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Said Act ). The ‘ ’ first order challenged by the husband was the order dated 23rd December, 2009 whereby the learned Metropolitan Magistrate rejected the application of the respondent-husband, who is presently residing in Indonesia in connection with his service, for granting permanent exemption from personal appearance in the Court. The second order is dated 20th January, 2010 passed by the learned Metropolitan Magistrate on the application for interim relief whereby the petitioner-wife had sought an injunction under Section 18(d) of the Said Act to restrain the respondent- husband from communicating with the petitioner-wife in any manner. 2. The Sessions Court for the reasons stated in its order dated 7th April, 2010 passed the following order : * 3 * W.P. 1668.2010 25.11.2010 O R D E R 1. “ The Criminal Appeal No. 163/2010 is allowed. 2. The impugned orders dated 23.12.2009 and 20.1.2010 passed by the learned Metropolitan Magistrate, 22nd Court, Andheri in C.C. No. 566/DV/2009 are hereby set aside. 3. The appellant is granted an opportunity to file written statement and contest the petition on merits through his advocate. 4. The interim order restraining respondent from communication is also hereby set aside. 5. The learned Magistrate shall conclude the proceeding as early as possible. 6. The appellant shall pay costs of Rs.10,000/- to the respondent. 7. The parties to appear before the Trial Court and will file Written Statement if appellant desires. 8. The Trial Court shall give reasonable time to the appellant for filing written statement which shall not be more than 4 weeks from today. 9. The Criminal Appeal stands disposed off accordingly.” 2. It appears that as the respondent-husband was continuously absent before the trial court, there was non-bailable warrant * 4 * W.P. 1668.2010 25.11.2010 issued by the learned Magistrate. There was also promulgation issued as regards the absconding of the respondent-husband. Since, the respondent-husband had not appeared before the trial court, he had obviously not filed written statement to contest the petition. Therefore, directions in regard to the same came to be given by the Sessions Court. 3. As regards the part of the order of the Sessions Court granting an opportunity to the respondent-husband to file written statement and to contest the petition on its merits, Ms. Kaur, the learned counsel for the petitioner-wife states in fairness that the petitioner does not oppose the same. Her main grievance, however, is against setting aside of the order dated 20th January, 2010 of the trial court which prevented the respondent-husband from communicating with the petitioner-wife. This order was passed by the trial court in view of the allegations made by the petitioner wife that the respondent-husband had sent a threatening e-mail to her, the text of which was annexed to the application filed. The same reads as follows :- * 5 * W.P. 1668.2010 25.11.2010 u r a liar and a cheat. I hate u and will see u dead. U say i “ tried to kill u rite. Well now i will. U have my word.” In view of the nature of the above communication, Ms. Kaur, submits that the order passed by the learned Magistrate restraining the respondent-husband from communicating with the petitioner-wife was a correct order. 4. Mr. Bhasin, the learned counsel for the respondent-husband seeks to justify the order of the Sessions Court by submitting that an order preventing the respondent-husband from communicating with the petitioner is an order in breach of his fundamental right of freedom of speech. This submission advanced needs to be stated only to be rejected in view of the specific provision under Section 18 of the said Act. The provision reads as follows :- 18. “ Protection orders- The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place pass a protection order in favour of the aggrieved person and prohibit the respondent from- (a)....... * 6 * W.P. 1668.2010 25.11.2010 (b).... (c).... (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; (e)... (f)..... (g)....” The Sessions Court ought to have considered the nature of communication and its possible impact on the petitioner-wife and maintained the order of restrain. There was no justification whatsoever for it to set aside that order. 5. As regards the trial Court s order dated 23 ’ rd December, 2009 which was on the application of the respondent/husband for granting permanent exemption from personal appearance in the court, the learned Sessions Judge has rested content with only setting aside that order. He has neither granted the application nor directed rehearing of the application by the learned Metropolitan Magistrate. Therefore, even if the order is left undisturbed, it would not mean that the respondent-husband has * 7 * W.P. 1668.2010 25.11.2010 been granted permanent exemption from personal appearance in the court. In any case, the order of permanent exemption from appearance in the court cannot be a correct order because an accused person is required to attend to the proceedings atleast at the stage of recording of statement under Section 313 Criminal Procedure Code and for receiving the judgment. Therefore, there can be no application for permanent exemption. If at all exemption is to be granted for a longer period of time, it would be an exemption granted until further orders. In the circumstances, the petition is partly allowed. The impugned order dated 7th April, 2010 is modified. Paragraph-2 of the operative part of the impugned order will read as follows :- (2) The order dated 20 “ th January, 2010 passed by the learned Metropolitan Magistrate, 22nd Court, Andheri in C.C. No. 566/DV/2009 is confirmed. The order dated 23rd December, 2009 passed by Metropolitan Magistrate, 22nd Court, Andheri below application dated 10th September, 2009 (Exhibit-H) in C.C. No. 566/DV/2009 is set aside. The application filed by the * 8 * W.P. 1668.2010 25.11.2010 appellant for exemption from appearance is allowed. Exemption from appearance is granted to him till further orders.” 6. In view of disposal of the writ petition, Misc. Application No. 406 of 2010 taken out by the respondent-husband therein does not survive. The same is accordingly disposed off. [Smt. R.P. SondurBaldota, J]