Daily Archives: July 31, 2014

DV on in laws 5yrs aftr hubby’s death!! Wife wants piece of house !! Dhingra ji sets aside lower court orders & sends ablaa back !! Classic discussion on domestic relationship and when such relationship should have subsisted

Wife files DV on in laws 5 years after hubby’s death!! Seeks right to reside in ancestral property far away from her actual place of living !!! Dhingra ji sets aside lower court orders & sends ablaa back !! Classic discussion on domestic relationship and when such relationship should have subsisted

Brief notes

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* Kaushar Bano was married to Zahid Khan on 16th March, 1994.

* 1st child, a female, born at Bulandshahar on 23 rd June, 1997

* Hubby and wife separate from rest of pariwar and and move to Delhi after that

* 2nd male child Shahid born on 22nd December, 1998 at House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, DELHI-32

* Hubby listed as a doctor in community directory living in DELHI

* Zahid Khan died on 14th November, 2002, at DELHI

* After his death, ablaa wife files dowry etc case on in laws, gives address as House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, DELHI – 32 in that case

* Till this point there is NO mention of a shared household and rights to shared household at Bulandshahar

* on 6th August, 2007, wife files DV seeking right to residence at property where petitioners were living i.e. District Bulandshahar, U.P.

* but the BIL say that property belongs to the MIL !! Initially the MM court rejects wife’s case and says NO right to residence in MIL’s property

* Unfortunately MIL dies intestate on 4th June, 2008

* Once again wife tries right of residence and this time the MM court and sessions court gives her right to residence !!

* This time (when MIl is dead) The MM court and Sessions court seem to give her right to residence !! in ancestral property because her dead husband should have got a share !!

* In laws appeal to Delhi HC

* Delhi HC , Hon. DHINGRA ji sets aside all lower court orders and explains why there is NO shared houshold and sends the case back

* Classic discussion on "shared household" and when (what point of time) the parties should have been in shared household

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 2010

Date of Order: 20th September, 2010

CRL.M.C. 4159/2009, Crl. M.A. No. 14141/2009

ADIL & ORS. ….. Petitioner Through: Mr. N.K. Handa, Adv.

Versus

STATE & ANR. ….. Respondent Through Ms Rakhi Dubey, Adv. for R-2 along with R-2 in person.

Mr Sunil Sharma, APP for the State

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SI Beena Thakur, Investigating Officer

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

1. By this petition the petitioners have assailed orders dated 30th November, 2009, and 6th November, 2009, passed by learned Metropolitan Magistrate (MM).

2. Brief facts relevant for the purpose of deciding this petition are that the respondent Kaushar Bano was married to Zahid Khan, brother of the three petitioners on 16th March, 1994. Zahid Khan died on 14th November, 2002, at Delhi. After his death, Kaushar Bano filed an FIR on 26th July, 2003 against the petitioners and her mother-in-law and other relatives making various allegations of cruelty, dowry demand etc. In this FIR, she gave her residence as House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, Delhi – 32.

3. After coming into force of The Protection of Women from Domestic Violence Act (in short Domestic Violence Act), she filed an application under Section 12 of Domestic Violence Act on 6th August, 2007, and also made an application for interim relief under Section 23 of Domestic Violence Act seeking right of residence in the property where petitioners were living i.e. District Bulandshahar, U.P. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The Court of MM passed an order dated 19 th April, 2008, observing that the property, in which right of residence was being sought by Kaushar Bano, was a property of her mother-in-law and cannot be termed as shared household. She, therefore, dismissed the application for interim relief and fixed the case for evidence giving an opportunity to prove the facts.

5. Against this order Kaushar Bano preferred an appeal before the learned Sessions Judge. Learned Additional Sessions Judge observed that the mother-in-law of Kaushar Bano i.e. mother of the present petitioners, expired on 4th June, 2008, and after her death, the question whether the property constituted shared house-hold would be required to be gone into by the MM again and the MM would determine if the appellant would be entitled to a relief in the changed circumstances since the property (matrimonial home) was indeed not in the name of any of the respondents i.e. the present petitioners, their mother having expired. She remanded back the matter to MM vide her order dated 27th November, 2008.

6. After the matter was remanded back, learned MM reconsidered the application under Section 23 of Domestic Violence Act and passed order dated 6th November, 2009 observing that respondent had a right to live in the property at Bulandshahar. It was brought to the notice of the MM that present petitioners have filed a civil suit in the Court of Civil Judge, S.D., Bulandshahar, U.P. in respect of same property, wherein wife Kaushar Bano was made as a respondent.

7. The learned MM allowed application of wife observing that vide order dated 19th April, 2008, the interim relief was refused to Kaushar Bano on the ground that house in Bulandshahar did not constitute a shared household as no document was on record to show that property was one in which the husband had a right or it was exclusive property of mother-in-law. She observed that, prima facie, the interim order was refused to Kaushar Bano on the ground that property belonged to mother-in-law, but the stand taken by the present petitioners was contrary to the reply filed by them later on where they had taken a stand that house in question belonged to their father and a settlement/Will was executed by him. She observed that since the earlier stand taken before the Court was that the property belonged to their mother and mother had expired intestate, deceased husband of Kaushar Bano being a son had a right in the property in question, hence the property can be termed as shared household. She, therefore, held that Kaushar Bano had a right of residence in the property in Town Gulaothi, District Bulandshahar, U.P. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Against this order, an appeal was preferred by the petitioners before the learned Additional Sessions Judge who observed that there was no infirmity in the order passed by the learned MM and the property could be termed as shared household within the definition as given in Section 2(s) Act. Vide order dated 30th November, 2009 the learned MM called upon the site plan of the property and she directed a portion of the property to be handed over to Kaushar Bano.

9. A perusal of the FIR dated 23rd July, 2003 lodged by Kaushar Bano against her in laws would show that her husband was a Doctor and had started practicing in Delhi, though the date of shifting to Delhi has been kept vague in the complaint. Her complaint also shows that birth of her first child, a female, had taken place at Bulandshahar on 23 rd June, 1997, whereas male child Shahid was born on 22nd December, 1998 at House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, Delhi-32. The complaint also gives an impression that her husband had separated from his other brothers sometime in 1998-1999, when she alleged that her dowry articles and Istridhan were misappropriated and she started residing at Delhi with her husband. Her husband died on 14th November, 2002 at Delhi. A perusal of directory of community of the petitioners, released by Delhi Government, shows that it contained the names of entire family members of Kaushar Bano, her husband and three children. The address given in the directory is A-5, Main Gali Masjid Wali, Babar Pur, Shahdara, Delhi-32. Her husband Zahid Khan has been shown as a Doctor and three children of couple namely Shahrukh, Heena and Sahil find mention in director. A perusal of Voters? List of Babarpur of year 2003 would also show that names of Kaushar Bano and her husband appear in Voters? List of Babarpur. It appears couple had separated from rest of the family about 8 years before filing of application under the Protection of Women from Domestic Violence Act, 2005.

10. It is apparent from the perusal of the order of Trial Court and Appellate Court that both, the Trial Court and the Appellate Court mis-directed themselves and did not consider the relevant provision of the Domestic Violence Act. Under Domestic Violence Act, the first pre-condition is that the applicant must be an aggrieved person. Aggrieved person is a person defined in Section 2 (a) of the Act. The domestic relationship must be there between the aggrieved person and respondent to invoke Domestic Violence Act.

This Court had clarified the legal position in respect of domestic relationship in Vijay Verma Vs. State NCT of Delhi & Anr., Criminal Misc. No. 3878 of 2009 and observed as under:

"5. Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:

"(f) „domestic relationship? means a

relationship between two persons

who live or have, at any point of

time, lived together in a shared

household, when they are related by

consanguinity, marriage, or through

a relationship in the nature of

marriage, adoption or are family

members living together as a joint

family."

6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or „at any point of time?. The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time" cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase „at any point of time?, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end."

(emphasis added)

11. In this case it could not have been decided by the Court of MM without recording evidence as to whether any domestic relationship existed between the parties on the date of filing application or soon before that in accordance with law laid down by this Court. It must be kept in mind that resort of Domestic Violence Act cannot be done to enforce property rights. For enforcement of property rights, the parties are supposed to approach civil court. Resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence when because of domestic violence, she had been rendered homeless and she had lost source of maintenance. Domestic Violence Act is not meant to enforce the legal rights of property, neither an interim order can be passed without first prima facie coming to conclusion that a domestic relationship existed between the parties and the applicant was an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act. In the present case, the order of learned MM and learned ASJ is absolutely silent as to how respondent was an aggrieved person and how a domestic relationship existed between her and petitioners.

12. I, therefore, set aside the orders dated 6th November, 2009 and 30th November, 2009 of learned MM. Learned MM shall record evidence first and decide whether a domestic relationship existed between the parties and whether the applicant fell within the scope of „aggrieved person? as defined in Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 and then pass appropriate order.

September 20, 2010 SHIV NARAYAN DHINGRA, J.

acm

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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Raj HC: Wife can file DV even IF she left house B4 DV passed! NOT divorced wife, can file DV !

Raj HC: Wife can file DV even IF she left her matrimonial house before the DV was notified by the Government !! As long as the couple are NOT divorced, the wife can file DV on husband !!

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Brief facts :

· Marriage in 1996
· Wife leaves matri home in 2005 (before DV act promulgated)
· Wife files DV case on 1 Nov 2007, i.e. more than 1 year after leaving matri home !!
· Parties are also litigating in court for divorce
· Magistrate and Sessions courts order main & residence order in the DV case by wife
· Husband appeals to HC
· HC also confirms lower court order and says married woman CAN file DV !!!
This is even though she left her matri household many years ago

 

 

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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Rajasthan High Court

 

Rakesh vs Rajnesh Urjf Manto on 10 May, 2011

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

 

JAIPUR BENCH AT JAIPUR

 

JUDGMENT

 

Rakesh Vs. Rajnesh @ Manto

 

(S.B. Criminal Revision Petition No.359/2010)

 

S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C.

 

Date of Order :- May 10, 2011

 

PRESENT : HON’BLE MR. JUSTICE R.S. CHAUHAN

 

Mr.D.K. Garg, for the petitioner.

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REPORTABLE

 

BY THE COURT:

 

The petitioner is aggrieved by the order dated 24.01.2009, passed by the learned Additional Chief Judicial Magistrate, Dholpur, whereby the learned Magistrate has not only directed the petitioner to pay a maintenance of Rs.1,000/- per month to the respondent-wife, but has also directed him to provide an accommodation to the respondent-wife in the shared household. The petitioner is also aggrieved by the order dated 06.03.2010, passed by the learned Sessions Judge, Dholpur, whereby the learned Judge has upheld the order dated 24.01.2009.

 

The brief facts of the case are that on 01.11.2007, the respondent-wife, Smt. Rajnesh @ Manto, filed an application under Sections 19, 20, 21, 22 of the Protection of Women from Domestic Violence Act, 2005 (‘the Act’, for short) against the petitioner-husband and his family members wherein she claimed that she got married with the petitioner in the year 1996. But ever since her marriage, her in-laws’ and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since 2005. Thus, she prayed for maintenance. The petitioner-husband filed reply to the application and denied the contents therein. After hearing both the parties, vide order dated 24.01.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.1,000/- per month as maintenance to the respondent-wife and to provide her an accommodation in the shared household. Being aggrieved by the said order, the petitioner-husband filed an appeal before the appellate court. However, vide order dated 06.03.2010, the learned appellate court upheld the order dated 24.01.2009 and dismissed the appeal. Hence, this petition before this Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

 

Mr. D.K. Garg, the learned counsel for the petitioner, has vehemently contended that Section 19 of the Act does not empower the court to restore the possession of portion of the shared household, once the respondent-wife has left the matrimonial home. Considering the fact that the respondent-wife had left the matrimonial home in the year 2005, the petitioner-husband cannot be directed to give her accommodation in the shared household by the learned Magistrate. Secondly, neither of the learned courts below have noticed the fact that the respondent-wife had left the matrimonial home in 2005, where as the Protection of Women from Domestic Violence Act, 2005 came into force on 26.10.2006. Relying on the case of Hema @ Hemlata (Smt.) & Anr. Vs. Jitender & Anr. [2009 (1) Cr.L.R. (Raj.) 291], the learned counsel has contended that the Act cannot be given a retrospective application. Thirdly, the petitioner has already filed a divorce petition on the ground of desertion. Therefore, the impugned order should not be passed during the pendency of the divorce petition. Lastly, in accordance with Section 19(1)(f) of the Act, the petitioner is willing to provide an alternate accommodation or to pay rent for the same. Therefore, the learned Magistrate and the learned Judge should have directed the petitioner either to arrange for an alternate accommodation, or to pay rental amount for the same. However, the same has not been done by the learned courts below. Therefore, the impugned orders deserve to be quashed and set aside.

 

Heard the learned counsel for the petitioner and perused the impugned orders.

 

Section 19 of the Act reads as under :

 

  1. Residence orders.-

 

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order –

 

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household;

 

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

 

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

 

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

 

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:Provided that no order under clause (b) shall be passed against any person who is a woman.

 

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

 

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

 

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

 

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

 

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

 

(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

 

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

 

A bare perusal of the said provision clearly reveals that while sub-clause (1) lays down the different orders which may be passed, sub-clause (2) bestows a residuary power on the court to pass any other direction which it may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. The said sub-clause would naturally take its colours from Sub-clause (1). This is more so, as Section 18 of the Act already deals with “protection orders”, yet Sub-clause (2) also deals with the order which are reasonably, necessarily “to protect or to provide for the safety of the aggrieved person”. Obviously, Section 18 of the Act and Section 19(2) of the Act could not cover the same area. In case it is interpreted that Section 18 of the Act and Section 19(2) of the Act do cover the same area, it will produce redundancy in the Act. It is, indeed, a settled principle of rule of interpretation that an interpretation which will make a provision either otiose or redundant should be avoid. Therefore, the words “to protect or to provide for safety” would necessarily have to be interpreted as to protect and to provide safety to the aggrieved person vis–a–vis residential accommodation. Hence, the learned Magistrate has ample power to direct that the aggrieved person be given accommodation in the shared household, although the aggrieved person may have left the matrimonial home or the shared household many years ago. The intention of the laws, which are in favour of women, is to protect the socio–economic rights of women. After all, the condition of women in this country is not only precarious, but is also pitiable. In order to protect a woman, who has been deprived of her matrimonial home and who may face certain difficulty in her material home, Sub-clause (2) gives ample power to the Magistrate to restore and to ensure that the aggrieved person has a sufficient and reasonable accommodation provided for in the shared household. Therefore, the first contention raised by the learned counsel for the petitioner is clearly unacceptable. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

 

As far as the question of a retrospective application of the Act is concerned, the case of Hema @ Hemlata (Smt.) (Supra) is distinguishable from the present case on the basis of the factual matrix. In the case of Hema @ Hemlata (Smt.) (Supra), the parties were divorced in the year 2003. Therefore, the marriage had come to an end. Moreover, neither of them resided together from 2003 till 26.10.2006, the date when the Act came into force. Thus, in these peculiar facts and circumstances, this Court had observed that the Act cannot be given a retrospective effect as domestic violence could not have been committed by the husband upon the wife during the period of 2003 to 2006. However, in the present case, admittedly the marriage is subsisting. During the subsistence of marriage, the Act recognizes that the aggrieved person, the wife, has certain socio–economic rights and has certain rights of protection since 2005. Prima facie the wife has been deprived of these socio–economic rights – the right of protection and the right to accommodation. Therefore, a civil wrong is being committed continuously against her, from 2005 till present. Hence, the said Act will certainly be applicable to the act and omission committed by the petitioner. Therefore, the question of retrospective applicability of the Act does not even arise in the present case.

 

The pendency of the divorce petition on the ground of desertion would not disable the court from passing its order under the Act as both the proceedings are independent of each other. In fact, in case the argument of the learned counsel were to be accepted, by his filing the present petition and requesting that the wife be restrained from sharing the household, this by itself would amount to constructive desertion by the husband. Therefore, the said argument is self–defeating. Lastly, the discretion of the Magistrate cannot be cribbed, cabined and confined. It cannot be argued that merely because Section 19(1)(f) of the Act empowers the Magistrate to direct the respondent to provide alternate accommodation or to pay rent for the same to the aggrieved person, the powers of the Magistrate are confined only to Section 19(1)(f) of the Act. Such as contention, if accepted, would make other sub-clauses of section 19(1) of the Act redundant.

 

Since the impugned orders have been passed after meticulously examining the evidence and after application of a judicious mind, this Court does not find any illegality or perversity in the impugned order.

 

This petition, being devoid of any merit is, hereby, dismissed. The stay petition also stands dismissed.

 

(R.S. CHAUHAN) J.

 

Manoj Solanki

 

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist