Radha d/o Koru v. Sivasankar K.K. and State of Kerala represented by Public Prosecutor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938** ## **Crl.MC.No. 5224 of 2016 ()** **---------------------------** **(AGAINST CRL.M.P. NO.2902/2016 IN MC NO.8/2010 OF J.F.C.M.-I, OTTAPALAM)** **PETITIONER/PETITIONER: -------------** **RADHA K D/O KORU, KARIAMPATTA HOUSE, VADAKUMBRAM AMSOM, PALAKKAD DISTRICT** ## **BY ADV. SRI.P.JAYARAM** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. SIVASANKARAN K.K. S/O GOVINDAN, KOLLATHUMKUNDIL HOUSE, CHERUMUNDASSERY PO, AMBALAPARA, OTTAPALAM TALUK, PALAKKAD DIST-679512** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SRI.K.B.ARUNKUMAR R1 BY ADV. SRI.RANJIT BABU BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 0902-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 5224 of 2016 ()** ## **---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**ANNEXURES**| |---|---| |**-----------------------**|| |**ANNEXURE:A1**|<br>**TRUE COPY OF THE PETITION DT. 3/3/09 IN MC**| ||**NO.8/2010 ON THE FILE OF JFCM-I, OTTAPALAM**| |**ANNEXURE:A2**|<br>**TRUE COPY OF THE COUNTER STATEMENT DT. 22/6/11**| ||**SUBMITTED BY THE RESPONDENT IN MC NO.8/2010 ON THE**| ||**FILE OF JFCM-I, OTTAPALAM**| |**ANNEXURE:A3**|<br>**TRUE COPY OF THE APPLICATION DT. 4/6/11 IN CMP**| ||**NO.2095/11 IN MC NO.8/2010 ON THE FILE OF JFCM-I,**| ||**OTTAPALAM**| |**ANNEXURE:A4**|<br>**TRUE COPY OF THE COUNTER STATEMENT DT. 22/3/13**| ||**SUBMITTED BY THE RESPONDENT IN CMP NO. 2095/11 IN**| ||**MC NO.8/2010 ON THE FILE OF JFCM-I, OTTAPALAM**| |**ANNEXURE:A5**|<br>**TRUE COPY OF THE APPLICATION DT. 21/4/12 IN CMP**| ||**NO. 1000/12 IN MC NO. 8/10 ON THE FILE OF JFCM-I ,**| ||**OTTAPALAM**| |**ANNEXURE:A6**|<br>**TRUE COPY OF THE COUNTER STATEMENT DT.26/5/12**| ||**SUBMITTED BY THE RESPONDENT IN CMP NO. 1000/12 IN**| ||**MC NO. 8/10 ON THE FILE JFCM-I, OTTAPALAM**| |**ANNEXURE:A7**|<br>**TRUE COPY OF THE APPLICATION DT. 29/4/13 IN CMP**| ||**NO. 1206/13 IN MC NO. 8/10 ON THE FILE OF JFCM-1,**| ||**OTTAPALAM**| |**ANNEXURE:A8**|<br>**TRUE COPY OF THE COUNTER STATEMENT DT. 2/5/13**| ||**SUBMITTED BY THE RESPONDENT IN CMP NO. 1206/13 IN**| ||**MC NO.8/10 ON THE FILE OF JFCM-I OTTAPALAM**| |**ANNEXURE:A9**|<br>**TRUE COPY OF THE APPLICATION DT. 15/6/16 IN**| ||**CMP.2902/16 IN MC NO.8/10 ON THE FILE**| ||**OF JFCM-I, OTTAPALAM**| |**ANNEXURE:A10**|<br>**TRUE COPY OF THE COUNTER STATEMENT DT. 22/6/16**| ||**SUBMITTED BY THE RESPONDENT IN CMP NO. 2902/16 IN**| ||**MC 8/10 ON THE JFCM-I, OTTAPALAM**| |**ANNEXURE:A11**|<br>**CERTIFIED COPY OF THE ORDER DT. 29/6/16 IN CMP**| ||**2902/16 IN MC NO. 8/10 ON THE FILE OF JFCM-I,**| ||**OTTAPALAM**| |**ANNEXURE:A12**|<br>**TRUE COPY OF THE ORDER DT. 9.5.2013 IN CRL.M.P.**| ||**NO.2095/2011, CRL.M.P. NO.1000/2012 AND CRL.M.P.**| ||**NO.206/2013 IN M.C. NO.8/2010, ON THE FILES OF**| ||**JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM.**| **RESPONDENT(S)' ANNEXURES -----------------------** **NIL** **/TRUE COPY/** **VPS PS TO JUDGE** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.5224 of 2016** ## **----------------------------------------Dated this the 9[th] day of February, 2017** ## **O R D E R** - 1.A petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by the petitioner against her husband, the 1[st] respondent herein. - 2.In the petition, the petitioner had sought for protection order under Section 18, residence order under Section 19 and monetary reliefs. - 3.At the interim stage, the petitioner filed three applications which were allowed by the Court below as per Annexure-A12 order dated 9.5.2013 and the following interim reliefs were granted. - (a) In C.M.P. No 2095 / 2011, the respondent was restrained from causing any obstruction to the peaceful residence of the petitioner in the shared household in Crl.M.C.5224/2016 2 Re-survey No.52/16. - (b) In C.M.P.No.1206 of 2013, the respondent was restrained from renouncing his right in the shared household comprised in Re-survey No.52/16. However, no reliefs were granted against the third party to the proceeding who was impleaded. - (c) In C.M.P.No.1000/2012, the respondent was restrained from creating any other encumbrance over the shared household. - 4.Though the 1[st] respondent preferred appeals challenging the aforesaid orders, the same were dismissed. It is borne out from the records that in terms of the orders passed by the learned Magistrate, the petitioner started residing in the shared household. - 5.While so, the 1[st] respondent herein filed an additional counter affidavit wherein it was stated that O.S.No.276 of Crl.M.C.5224/2016 3 2009 which was pending against him was decreed and the decree holder, who had attached the property had purchased the property in execution. According to the 1[st] respondent, the sale had been confirmed on 7.11.2012 and sale certificate had been issued. It was further contended that in view of the subsequent event, the petitioner was not entitled to obtain a residence order. Incidentally, the plaintiff in O.S.No.276 of 2009 was the brother's daughter of the 1[st] respondent. - 6.Thereafter, the petitioner was called upon to tender her evidence. She entered the box and gave evidence as PW1. She was cross examined by the respondent. Immediately thereafter, C.M.P.No.2902 of 2016 was filed praying for amending the original petition and also the prayer. - 7.The respondent filed detailed objection and contended that the petition was liable to be dismissed for laches and Crl.M.C.5224/2016 4 delay. According to the 1[st] respondent, the amendment would alter the nature of the proceedings as the petitioner had failed to incorporate these details in the original petition. Further, prejudice would be caused to the 1[st] respondent as the evidence of PW1 has been recorded. - 8.After evaluating the rival contentions the court below by order dated 29.6.2016 dismissed the petition holding that the only intention of the petitioner was to fill up the lacuna in her case. It was further held that the procedure to be followed for adjudication is the Code of Criminal Procedure and there is no provision for amendment of the petition in the Code. The aforesaid order is under challenge. - 9.Heard the learned counsel appearing for the petitioner as well as the 1[st] respondent. - 10.The learned counsel appearing for the petitioner would submit that the prayers in the amendment have already Crl.M.C.5224/2016 5 been allowed at the interim stage and the petitioner had been staying in the shared household in survey No.52/16 of Ambalappara-I village. By the amendment, the petitioner had only sought to incorporate specific details such as Survey number in the original petition and the amendment cannot be said to be a game changer. No new case was set forth and no issues were introduced. Reliance is also placed on the decision of the Apex Court in **Kunapareddy @ Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and Another** (2016 (2) SC Crimes 277) and **S.R.Sukumar v. S.Sunaad Raghuram** (2015 (9) SCC 609) to reinforce his submissions. - 11.The counsel appearing for the 1[st] respondent would submit that the petitioner was staying in her own house and the only prayer sought for in the main petition was to restrain the 1[st] respondent from entering the house of the Crl.M.C.5224/2016 6 petitioner in Kaniyampatta house, in Ambalappara village. It was in the course of proceedings that on coming to know that the property was sold in execution in O.S.No.276 of 2009 that the petitioner has ventured to file an amendment application raising untenable contentions. It is submitted that the 1[st] respondent is not the owner of the shared household and hence, she is not entitled to any relief insofar as the shared household is concerned. It is further submitted that the application for amendment was filed belatedly. He also sought to sustain the observation of the learned Magistrate that there is no provision for amendment of a petition or a complaint as per the provisions of the Code. - 12.I have considered the submissions advanced and have gone through the materials on record. 13.It appears from Annexure-A12 order dated 9.5.2013 that the learned Magistrate had allowed the interlocutory Crl.M.C.5224/2016 7 applications, which were filed and had permitted the petitioner to enter the shared household in Re-survey No.52/16 and the respondent was restrained from causing any obstruction to her peaceful residence. The respondent was also directed not to create encumbrance over the said property. The appeal filed by the respondent against the said order was dismissed as per common order dated 9.1.2015. 14.In the aforesaid fact scenario, the only question is whether the amendment proposed to be carried out in the complaint would substantially change the original nature of the complaint and as to whether the same can be allowed to be carried out. It is apparent from the application for amendment that the prayer is limited to incorporation of the survey number and the details of the shared household in the original petition filed before the learned Magistrate. The petitioner also had sought to Crl.M.C.5224/2016 8 incorporate the details of the shared household as the one comprised in Re-survey No.52/16 of Ambalappara-I village in Ottappalam Taluk. She has also sought for amendment under the head of 'Damages' and monetary relief. The learned Magistrate has dismissed the application on the ground that there was no provision for amendment in the Code of Criminal Procedure and on ground of delay. However, in **Kunapareddy** (supra) the Apex Court after referring to the decision in **S.R.Sukumar** (supra) had held as follows: 16.We understood in this backdrop, it cannot be said that the Court dealing with the application under DV Act has no power and / or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events [escalation of prices in the instant case] or to avoid multiplicity of litigation, Court will the have power to permit such an amendment. It is said that procedure is the handmaid of justice and is to come to the aid of the justice rather than defeating it. It is nobody's case that respondent no. 1 was not entitled to file another application claiming the reliefs which she sought to include in the pending application by way of amendment. If that be so, we see no reason, Crl.M.C.5224/2016 9 why the applicant be not allowed to incorporate this amendment in the pending application rather than filing a separate application. It is not that there is a complete ban / bar of amendment in the complaints in Criminal Courts which are governed by the Code, though undoubtedly such power to allow the amendment has to be exercised sparingly and with caution under limited circumstances. ............... xxxx xxxxx xxxxx 17. What we are emphasizing is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated. 15.Having regard to the above, the finding of the learned Magistrate that the court below had no powers to amend the petition cannot be sustained. As held by the Apex Court, the court cannot be said to be powerless and the amendment can be allowed in appropriate cases to avoid multiplicity of proceedings. In the instant case, the amendment became necessary in view of subsequent Crl.M.C.5224/2016 10 events. Taking note of the same, interim relief was also granted which is in tune with the amendment sought. The petitioner was entitled to file another application seeking the very same relief and if that be the case, there is no reason why her prayer for amendment should have been dismissed. If the power to amend the complaint / application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases. Further, the amendment cannot be said to be a substantial one and will not change the nature of the complaint. Sub Section (2) of Section 28 of the Domestic Violence Act empowers the learned Magistrate to lay down its own procedure for disposal of the application under Section 12 or Section 23 (2) of the DV Act. In view of the above, I am of the considered view that the order passed by the learned Magistrate disallowing the Crl.M.C.5224/2016 11 application filed cannot be sustained. The order in C.M.P.No.2902 of 2016 in M.C.No.8 of 2010 is set aside. The same will stand allowed. The court below is directed to incorporate the amendment and proceed in accordance with law. **Sd/-** **RAJA VIJAYARAGHAVAN.V. JUDGE** vps