DV cases can be quashed u/s 482 CrPC. Gujarat HC division bench judgement – Nov 2015

DV cases CAN BE QUASHED u/s 482 CrPC !!
Gujarat HC division bench judgement – Nov 2015
KEY / cornerstone decision by a Division bench of the Gujarat HC
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A woman who is living separately since July 2007, receives a divorce notice in May 2009 from her husband. AFTER receipt of divorce notice, she files a 498A on the husband !!. The HC quashes that case. The same woman also files a DV case and the husband and co try to get that too quashed. However dissenting views by the same HC leads to the matter being referred to a division bench which finally asserts that DV cases can be quashed
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Due to dissenting views in two different judgements, an ambiguity arises as to whether DV cases can be quashed under sec 482 CrPC.

A learned single judge takes the view that they cannot be quashed “…in the case of Narendrakumar alias Nitinkumar Manilal Shah vs. State of Gujarat & Anr., 2014 (2) GLR 1353 wherein the learned Single Judge has taken the view that the proceedings under the provisions of the Protection of Women From the Domestic Violence Act, 2005 are not criminal in nature and, therefore, the remedy would be to invoke civil jurisdiction and not the criminal jurisdiction of the High Court under Article 226 of the Constitution of India or under section 482 of the Code. …”

However in a different case a dissenting view is taken “… It appears that a coordinate bench, vide order dated 27th July, 2015 passed in the Special Civil Application No.15687 of 2014 dissented with such view. Although, there is a reference of Narendrakumar (supra) in para-2(ii) of the judgment, yet I do not find anything in the judgment on the basis of which it could be said that Narendrakumar (supra) has been held to be per incuriam or not a good law.,,,”

So the matter is placed before the division bench of the Hon Gujarat HC for adjudication .

The Division bench decrees that DV cases can be quashed under Sec 482 of CrPC. As a conclusion the court states “…Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available. But the higher forum under the Code of Criminal Procedure, may be the Court of Session or the High Court, may decline entertainment of such proceedings considering the facts and circumstances of the case and as per the settled principles of law and in accordance with law.

(vi) The aforesaid remedial measures provided under the Code of Criminal Procedure would also include the powers of this Court under Section 482 of the Code, but the Court may, in a given case, decline entertainment of the petition when there is express remedy provided under the Code of Criminal Procedure or no case is made out to prevent the abuse of process of any Court, or no case is made out to secure the ends of justice……”

We hope this case will benefit men fighting FALSE Domestic Violence cases

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REFERENCE NO. 6 of 2015
IN SPECIAL CRIMINAL APPLICATION NO. 5313 of 2015

FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE
MR. JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
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SUO MOTU….Applicant(s)
Versus
USHABEN KISHORBHAI MISTRY….Respondent(s)
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Appearance:
SUO MOTU for Applicant MR SAMIR DAVE, ADVOCATE
for Respondent No.1 MR MITESH AMIN, PUBLIC PROSECUTOR for State
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL and HONOURABLE MR.JUSTICE N.V.ANJARIA

Date : 27/11/2015

JUDGMENT (PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)

1. Special Criminal Application No. 5313 of 2015 out of which the present reference is made by learned single Judge to the Division Bench of this Court is preferred by the petitioners seeking to quash and set aside the complaint being Case No. 1992 of 2009 filed by respondent no.2 therein under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”) which has been filed before the court of Metropolitan Magistrate at Ahmedabad.

2. When the said matter came up before the learned single Judge of this Court (J.B. Pardiwala, J.) taking up Special Criminal Applications (quashing) on 15.9.2015, the learned single Judge was pleased to pass the following order.

“1. By this application under Article 226 of the Constitution of
India, the petitioners- original accused, have prayed for the
following reliefs;

(A) Your Lordships be pleased to admit and allow this petition;

(B) Your Lordships further be pleased to quash and set aside the
complaint being Case No.1992 of 2009 filed by the respondent no.2
herein under the provisions of the Protection of Women From Domestic
Violence Act before the Ld. Metropolitan Magistrate, Court No.1,
Ahmedabad, in the facts and circumstances of the case and in
the interest of justice.

(C ) Pending admission, hearing and final disposal of this petition,
Your Lordships be pleased to stay the further
proceedings/investigation in connection with the complaint being Case
No.1992 of 2009 filed by the respondent no.2 herein under the
provisions of the Protection of Women From Domestic Violence Act
before the Ld. Metropolitan Magistrate, Court No.1, Ahmedabad in the
interest of justice.

(D) Any other and further orders which Your Lordships deem fit and
proper be kindly passed in the interest of justice.

2. These very petitioners had, in fact, preferred Criminal Misc.
Application No.7749 of 2009 praying for the same reliefs and the said
application was disposed of by this court vide order dated 24th
August, 2015, which reads as under:

“By this application under Section 482 of the Code of Criminal
Procedure, 1973, the applicants original accused seek to quash the
proceedings of the Case No.1992 of 2009 filed by the respondent no.2
under the provisions of the Protection of Women from Domestic
Violence Act, 2005, pending in the Court of the learned Metropolitan
Magistrate Court No.1, Ahmedabad.

Mr.Dave, the learned advocate appearing for the applicants seeks
permission to withdraw this application with a liberty to file
appropriate proceedings before the appropriate forum in accordance
with law.

Permission as prayed for is granted. This application is disposed of
as not pressed.

I clarify that I have otherwise not gone into the merits of the
matter.”

3. The learned counsel appearing for the applicants had thought fit
to withdraw the Criminal Misc. Application No.7749 of 2009 in view of
the decision of this Court rendered by a learned Single Judge in the
case of Narendrakumar alias Nitinkumar Manilal Shah vs. State of
Gujarat & Anr., 2014 (2) GLR 1353 wherein the learned Single Judge
has taken the view that the proceedings under the provisions of the
Protection of Women From
the Domestic Violence Act, 2005 are not criminal in
nature and, therefore, the remedy would be to invoke civil
jurisdiction and not the criminal jurisdiction of the High Court
under Article 226 of the Constitution of India or under section 482
of the Code. It appears that a coordinate bench, vide order dated
27th July, 2015 passed in the Special Civil Application No.15687 of
2014 dissented with such view. Although, there is a reference of
Narendrakumar (supra) in para-2(ii) of the judgment, yet I do not
find anything in the judgment on the basis of which it could be said
that Narendrakumar (supra) has been held to be per incuriam or not a
good law.

4. Whether a writ proceeding is civil or criminal, depends on the
nature of relief claimed and grounds for such relief. “Civil
Proceedings” or “Criminal Proceedings” are not defined anywhere. The
Constitution of India does not define the expression, “Civil
Proceeding” nor does the General Clauses Act. The two proceedings are
entirely different and distinct, though at times it may overlap to
some extent. But the distinction between the civil proceedings and
criminal proceedings is well defined.

5. In Halsbury’s Laws of England, Fourth Edition, Vol. 11, Criminal
and Civil proceedings have been distinguished thus :-

“Civil proceedings have for their object the recovery of money or
other property, or the enforcement of a right or advantage on behalf
of the plaintiff: criminal proceedings have for their object the
punishment of a person who has committed a crime. Criminal
proceedings are not to be used as a means of enforcing a civil right.
Whether conduct amounts to a crime may be determined by ascertaining
whether the conduct in question is followed by criminal or civil
proceedings. If the proceedings will result in the punishment of a
party, the conduct in question will be a crime notwithstanding that
it may be a matter of small consequence. Where an act is commanded or
prohibited by statute, disobedience is prima facie criminal unless
criminal proceedings manifestly appear to be excluded by the statute.
An act may be prohibited or commanded by a statute in such a manner
that the person contravening the provision is liable to a pecuniary
penalty which is recoverable as a civil debt; in such an instance
contravention is not a crime.”

6. In State of U.P. v. Mukhtar Singh, AIR 1957 All 505, the Division
Bench of the Allahabad High Court considered the nature of the
proceedings under Article 226 of the Constitution of India. One of the
Judges, Beg, J. explaining the nature of proceedings, held that
whether a proceeding is civil or not, depends on the nature of the
subject-matter of the proceeding and its object and not on the mode
adopted or the form provided for enforcement of right. According to
His Lordship, a proceeding which deals with the right of civil nature
and otherwise of civil nature does not cease to be so just because
the party chooses resort to Article 226 of the Constitution for
enforcement of such right. The fact that a right has been created by
the Constitution or the forum for its enforcement prescribed by it
should not make any difference, if the subject-matter of the right
sought to be agitated in the proceedings is itself of a civil nature,
and the object of the proceedings is merely the enforcement of such a
right, and not punishment of a wrong. On the other hand, Desai, J.
constituting the Division Bench was of the view that a proceeding
under Article 226 for a writ is not a civil proceeding. According to
His Lordship, much confusion has resulted from the assumption, for
which there is no warrant at all, that jurisdiction is either civil
or criminal. There are several kinds of jurisdictions and there is no
foundation for the view that civil and criminal jurisdiction exhaust
the list of jurisdictions that can be conferred upon a High Court.
According to Desai, J., Article 225 retains the civil, criminal,
testamentary, intestate and matrimonial jurisdiction conferred upon
the High Courts under the Letters Patent and Article 226 confers
additional jurisdiction and since it is the additional jurisdiction,
it must be different from the jurisdictions viz. civil or criminal.
(see M/s Nagpur Cable Operators Association vs. Commissioner of
Police, Nagpur, AIR 1996 Bombay 180)

7. The Division Bench of the Bombay High Court in J.P. Sharma v. The
Phalton Sugar Works Ltd., AIR 1964 Bom 116, while dealing with the
proceedings under Article 226 of the Constitution held as under :-

“The next argument of Mr. Joshi is that all proceedings under
Article 226 are either civil or criminal. When a person asks for a
writ of Habeas Corpus, that is a criminal proceeding. But when a
person asks for any other writ than the Habeas Corpus, the
proceedings are necessarily civil proceedings. The proceedings
started under Article 226 are not proceedings under any Act, but are
proceeding to quash the orders made under certain Acts, or for orders
restraining the officers to take action under certain Acts. They are,
therefore, civil proceedings and not proceedings under the Act. It is
not possible to accept the argument. Mr. Joshi admits that the proceedings
for the issue of a writ of Habeas Corpus is a criminal proceeding. He
admits that it is criminal proceeding because it is a relief asked
against the arrest or retention of a person in contravention of the
provisions of the criminal law. If that be so, we see no reason why
we should hold that even though the relief asked is a relief against
an order made under taxation laws or enforcement of the taxation laws
against a person, the proceedings should not be revenue in nature. On
the other hand, it would be logical to hold that the nature of the
relief which is asked for in each case under Art.226 should be
determinative of the nature of that proceeding. If the relief asked
is against the exercise of powers under criminal law, the proceedings
would be criminal proceedings. If the relief asked is for enforcement
or in exercise of a civil right to prevent infringement of a civil
right, the proceedings will be civil in nature. Similarly, if the
relief is sought in relation to the enforcement of the taxation law,
the proceedings would be revenue in nature. It is difficult to accept
the contention of Mr. Joshi that proceedings under Art.226 are either
civil or criminal in nature. On the other hand, we agree, with
respect, with the view taken by the Patna High Court that the writ
application may be a civil proceeding according to the nature of the
application and the questions raised and decided in the proceedings.
In the instant case, as already stated, the assessee sought to get
quashed the notices issued under Section 34 of the Income-tax Act,
and also prayed for an order restraining the Income-tax Officer from
taking any action in enforcement of the notices. In other words, in
the proceedings under the Income-tax Act, as already stated, are
revenue in nature. The writ proceedings with which we were dealing,
therefore, were revenue in nature.”

8. The question whether a writ proceeding under Article 226 of the
Constitution of India is a civil proceeding or criminal proceeding is
considered at great length in the judgment of the Apex Court in
I.S.A. Narayan Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818. The
Apex Court observed thus :-

“. . . . . The expression “civil proceedings” is not defined in the
Constitution, nor in the General Clauses Act. The expression in our
judgment covers all proceedings in which a party asserts the
existence of a civil right conferred by the civil law or by statute,
and claims relief for breach thereof. A criminal proceeding on the other hand
is ordinarily one in which if carried to its conclusion it may result
in the imposition of sentences such as death, imprisonment, fine or
forfeiture of property. It also includes proceedings in which in the
larger interest of the State, orders to prevent apprehended breach of
the peace, orders to bind down persons who are danger to the
maintenance of peace and order, or orders aimed at preventing
vagrancy are contemplated to be passed. But the whole area of
proceedings, which reach the High Courts as civil and criminal. . . .
. “

The Supreme Court further observed in the said report as under :-

“. . . . .The character of the proceedings, in our judgment, depends
not upon the nature of the Tribunal which is invested with authority
to grant relief, but upon the nature of the right violated and the
appropriate relief which may be claimed. A civil proceeding is,
therefore, one in which a person seeks to enforce by appropriate
relief the alleged infringement of his civil rights against another
person or the State, and which if the claim is proved would result in
the declaration – express or implied of the right claimed and relief
such as payment of debt, damages, compensation, delivery of specific
property, enforcement of personal rights, determination of status
etc.”

9. The Supreme Court, in the case of Somabhai Mathurbhai Patel vs.
New Shorrock Mills, 1983 GLH 273, has taken the following view;

“…..While we are not inclined to grant special leave at this stage, we,
however, record our disapproval of the way in which the learned
Single Judge has dealt with the judgment of Hon. M. C. Trivedi, J
which dealt with the identical point and which judgment was binding
on the learned Judge. It is not open to a learned Single Judge to
reject the ratio of the decision of another learned Single Judge of
the same High Court by merely saying that attention of M. C. Trivedi
J. was not invited to the decision of Supreme Court which may have an
impact on the point under examination. Judicial comity demands and
this Court has often reiterated that in that event the matter should
be referred to a larger Bench. But in this case, learned Judge has observed
that he is unable to agree with the view taken by M. C. Trivedi, J.
because in his view the question was directly covered by an earlier
decision of this Court, That aspect of the matter itself needs
examination. Therefore, if the matter at any stage goes back to the
High Court and the same question is raised in the interest of justice
it should be heard by a Division Bench. Mr. Kaji, learned Advocate
for the petitioner made another grievance that the relief was granted
in the absence of a pleading in the plaint on the question of tenancy
as covered by Section 13(1)(f) of the Bombay Rent Act as applicable
in Gujarat. Mr. Arun Mehta, learned Advocate for respondent appearing
on caveat conceded that as the matter be remanded to the District
Judge, Nadiad, plaintiff will seek permission for appropriate
amendment of the plaint. If such an application is made, learned
Judge may deal with it according to law and it should not be
understood that this Court has directed such an amendment being made…”

With these observations, the special leave petition is dismissed.

10. In view of such conflict, I am of the view that the matter
should be heard by a Division Bench so that this issue can be
resolved once and for all.

11. Let this matter be placed before the Hon’ble the Acting Chief
Justice for appropriate order.”

3. The aforesaid shows that the view taken by the another learned single Judge (G.R.Udhwani, J.) in the case of Narendrakumar @ Nitinbhai Manilal Shah & Ors v. State of Gujarat & Anr, in Misc. Criminal Application No. 19853 of 2013 with Misc. Criminal Application No.18703 of 2013, reported at 2014 (2) G.L.R. 1353 was brought to the notice of the learned single Judge as well as another decision of another learned single Judge (N.V. Anjaria, J.) in the case of Rameshbhai Ramjibhai Desai in Special Civil Application No. 15687 of 2014, wherein different view was found as taken by another learned single Judge.

It appears that the learned single Judge having found conflict in the above-referred two decisions of the two learned single Judges, has observed that the matter be heard by a Division Bench so that the issue can be resolved once and for all. Under the circumstances, the present reference before the Division Bench of this Court.

4. Considering the facts and circumstances, the office to give Reference number to the present proceedings as Criminal Reference Number 6 in Special Criminal Application No. 5313 of 2015.

5. We have heard Mr.Samir Dave, learned counsel appearing for the respondent and Mr.Mitesh Amin, learned Public Prosecutor, appearing for the State.

6. The factual controversy of the present case can be summarized as under:-

6.1 As per the petitioners of Special Criminal Application No. 5313/15, the marriage of respondent no.1 herein had taken place with Dharmesh Kishorbhai Luhar at Mahuva, District-Bhavnagar. The original petitioner no.1 is the mother-in-law and original petitioner nos. 2 and 3 are brother-in-law and sister-in-law respectively. Respondent no.1 herein is the complainant wife. A child, namely, Krishna is also born to the respondent no.2 and as per the petitioners, respondent no.2 left the matrimonial home and took away the daughter with her and since 5.7.2007, she is residing separately. On 16.4.2009, husband Dharmesh Kishorebhai Luhar has filed a petition under Section 13(1) of the Hindu Marriage Act before the Family Court at Ahmedabad seeking dissolution of marriage and the same is registered as Family Suit No. 501 of 2009. The Family Court has issued summons to the respondent therein-respondent no.2 in the main matter which is served upon her on 7.5.2009. On 16.5.09, as per the petitioners, a complaint is lodged by respondent no.2 with Odhav Police Station being C.R. I-184 of 2009 for the offence under Sections 498-A and 114 of Indian Penal Code. On 24.6.2009, the petitioners preferred an application being Criminal Misc. Application No. 7191 of 2009 under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as “the Code”), before this Court for quashing of the said complaint and this Court allowed the said petition. On 11.6.2009, the present complaint being under the Act is filed by the respondent no.2 before the learned Metropolitan Magistrate Court, Ahmedabad and summons are issued in the said complaint. As per the petitioners, Criminal Misc. Application No. 7749 of 2009 under Section 482 of the Code was also preferred by the petitioners for quashing of the said complaint, but on 24.8.2015, in view of the decision of this Court in the case of Narendrakumar (supra), the said petition was withdrawn with liberty to file appropriate proceedings before the appropriate forum. Under the circumstances, the petitioners have preferred the present petition before this Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. Before we further consider the matter, we may, at the first instance, consider the dissenting views of the two Hon’ble Judges in the case of Narendrakumar (supra) and in the case of Rameshbhai R. Desai (supra). In the case of Narendrakumar (supra), the learned single Judge, after considering the scheme of the Protection of Women from Domestic Violence Act, 2005 including the objects and reasons of the Act, recorded the reasons from paras-15 to 17 as under:-

“15. The argument that expression “ violence necessarily connotes
criminality overlooks Section 3(iv) which defines economic abuse. The
clause refers to deprivation of all or any economic or financial
resources to which the aggrieved person is entitled or requires out
of necessity including household necessities, stridhan, property
jointly or separately owned by the aggrieved person, payment of
rental related to the shared household and maintenance, disposal of
household effects, any alienation of assets, shares, securities etc.
in which aggrieved person has an interest or is entitled to use by
virtue of domestic relationship or which may be reasonably required
by the aggrieved person. Expression ” domestic violence also includes
prohibition or restriction to continued access to resources or
facilities which the aggrieved person is entitled to use or enjoy by
virtue of the domestic relationship including access to the shared
household. Thus ” economic abuse being part of expression ” domestic
violence as defined in Section 3 of D.V.Act constitute abuse of
various civil rights of an aggrieved person. In addition, various
kinds of mental and physical harms, injuries, harassments and abuses
to a woman in domestic relationship constituting various offences
under IPC would constitute ” domestic violence. Thus domestic
violence includes objectionable acts punishable under IPC and other
objectionable commissions or omissions in relation to civil or human
rights of aggrieved person. Pertinently, except as under Section 31,
the Magistrate is not empowered to take cognizance of any
objectionable criminal acts within the meaning of IPC, while
exercising the jurisdiction under D.V.Act. Having regard to the
nature of reliefs which can be prayed for by aggrieved person in an
application under D.V.Act, it is clear that the D.V.Act predominantly
focuses on fallouts of domestic violence resulting into deprivation
of or necessitating securing of various civil rights of aggrieved
person like residence in a shared household, protection of aggrieved
person, right to residence, monetary reliefs, orders for custody of
child/children, orders for compensation etc. The criminal acts are
left to be dealt with by aggrieved person with appropriate complaint
even as the police officer, protection officer, service provider or
Magistrate in know of domestic violence is inter-alia obliged to
inform the aggrieved person of her right to file a complaint under
Section 498A of IPC, as contemplated under Section 5 of D.V.Act.
Pertinently, proviso to Section 5 cautions and reminds the police
officer of his duty to proceed in accordance with law upon receipt of
the information of commission of a cognizable offence. Thus, in
addition to the reliefs available to the aggrieved person under
D.V.Act, acts of commission of a cognizable offence against the
aggrieved person can be separately proceeded with. This is one more
indicator indicating the focus of D.V.Act on the reliefs for
aggrieved person, other than punishment to the offender.

15.1 From the scheme of D.V.Act, as aforementioned, the emphasis on
” aggrieved person, ” domestic violence, ” domestic incident report
is eloquent. As per Section 12, aggrieved person or protection
officer or any other person on behalf of the aggrieved person is
entitled to move an application, and as noticed in Section 2(a), “
aggrieved person is a woman in domestic relationship with “
respondent alleging a commission of domestic violence by such
respondent. Thus the application under Section 12 can be moved by or
on behalf of a woman suffering from domestic violence. Thus the “
domestic violence is only the cause of action for reliefs under
Sections 17 to 23 of the D.V.Act.

15.2 Further, the provisions are also made for establishment of
various facilitators like shelter homes, service providers,
protection officers to assist the Magistrate and aggrieved person as
also to enhance her knowledge about rights available to her under
D.V.Act or IPC or Dowry Prohibition Act. Thus the remedies
contemplated under D.V.Act except the one under Section 31 are not
remedies under criminal law. Domestic violence may confer a cause
upon the aggrieved person to proceed against the ” respondent under
criminal law and or under D.V.Act. Therefore, though the expression “
violence connotes criminality referable to criminal mindset, the
object of act being to assist the aggrieved person suffering from
domestic violence by providing to her various reliefs as above and
the act of domestic violence not being punishable under D.V.Act, it
cannot be said that mere use of expression ” violence would render
the applications under Sections 12, 17 to 24 of the D.V.Act as
criminal proceedings. The fact that the civil remedies are provided
to aggrieved person is also made eloquent by objects and reasons of
D.V.Act as well.

15.3 True that the object of Section 31 is to punish the offender
for violation of protection orders issued under Section 18 of
D.V.Act. Breach of protection orders is classified as cognizable and
non-bailable offence under Section 32, and upon testimony of the
aggrieved person, the Court may conclude that offence under Sub-
sec.(1) of Section 31 has been committed by the accused. Protection
order can be issued under Section 16 and its breach is cognizable
under Section 32. The purpose of Sections 31 and 32 appears to be to
ensure compliance of protection orders, if necessary, by enforcing a
criminal machinery against the offender. It is only while hearing a
case under Section 31 that a charge can be framed also under Section
498A of IPC or any other provision of that Code or the Dowry
Prohibition Act, as the case may be, on disclosure of the commission
of an offence under those provisions. Pertinently, except in relation
to few provisions like Section 5 and 31, there is no reference to the
expression ” offence, ” crime or the like in entire D.V.Act.
Therefore, even by virtue of doctrine of exclusion, an inference that
none of the commissions or omissions except those made specifically
punishable, the D.V.Act not intended to punish the ” respondent.

15.4 For the foregoing reasons, it cannot be said that the acts or
omissions constituting ” domestic violence as defined in Section 3 of
D.V.Act constitute an offence under D.V.Act so as to attract Section
4(2) of Cr.P.C.

15.5 In contrast, in order to attract Section 4(2) of Cr.P.C., the
commissions or omissions complained of must necessarily be an offence
as defined in Section 2(n) of Cr.P.C. Reference to various terms as
quoted in para 13.1 of this judgment as also the constitution of
various courts to try offences; the procedure to investigate or
inquire into the offences; obligations cast upon the police or others
for prevention and detection of offences; provisions for maintenance
of public order and tranquility etc., all go to indicate that
predominant object of Cr.P.C. is to provide for the procedure to deal
with offences. Since the scheme of Cr.P.C. predominantly prescribes a
procedure to try offences, Section 482 of Cr.P.C. also can be applied
in relation to offences and not in relation to civil proceedings.

15.6 The procedure contemplated under Section 28 of D.V.Act applying
the Criminal Procedure Code to the proceedings under Sections 12, 18
to 23 and 31 of D.V.Act would not ipso facto attract Section 482 of
Cr.P.C. Having regard to the scheme of D.V.Act, Section 28 while
adopting the provision of Cr.P.C. intends to apply procedure
necessary for passing orders for securing the civil rights
contemplated under Sections 12, 18 to 23 of D.V.Act. To illustrate, a
Magistrate may issue the summon or warrant for securing the presence
of ” respondent as defined in Section 2(q) of the D.V.Act.
Pertinently, Section 28, while referring to various provisions of
D.V.Act prefixes the expression ” offence to Section 31 only thus
making the intent of the act very specific and eloquent. In other
words, the expression ” offence is prefixed to Section 31 as referred
to in Section 28, while the said expression is omitted in Section 28
in reference to other provisions of D.V.Act, because Section 31
declares the breach of protection order an offence and other
provisions do not. Further, under the very provision, Magistrate is
empowered to prescribe its own procedure as well in which event the
Magistrate may not have to rely upon Cr.P.C.

15.7 Thus, mere use of the provisions of Cr.P.C. for limited
purposes of Sections 12, 18 to 23 and 31 of D.V.Act would not ipso
facto attract Section 482 of Cr.P.C.

15.8 Further, ” domestic violence as defined in Section 3 of the Act
has attributes of crime inasmuch as such acts may constitute an
offence under one or other provisions of IPC. The Magistrate is one
of the authority contemplated under Cr.P.C. to deal with offences. It
appears that, keeping the above aspect in view, it was deemed
appropriate to authorise a judicial mind well- versed with the
procedure dealing with crime, also to deal with the proceedings
arising under D.V.Act since criminal acts as defined under Section 3
of D.V.Act give rise to cause of action under that Act. Furthermore,
in case of breach of protection orders, the Magistrate is empowered
to proceed under Section 31 of D.V.Act and also to frame charge for
the offence under Section 498A of IPC. Therefore also it appears that
the Magistrate has been selected as competent judicial authority to
deal with the proceedings arising under D.V.Act and the Court of
Sessions is contemplated as competent appellate authority. Thus
merely because judicial authorities contemplated under Cr.P.C are
found competent to deal with the proceedings arising under D.V.Act,
it cannot be argued that such proceedings deal with crime.

16. The decision relied upon by learned Counsel for the petitioners
in Inderjit Singh Grewal (supra) does not address the question as
above. It merely invokes Section 468 of Cr.P.C. in a case arising
under D.V.Act. Therefore, cannot be cited as an authority laying down
the proposition of law discussed by this Court as above.

17. In above view of the matter, no substance is found in these
petitions. The petitions fail and are summarily dismissed.”

8. The aforesaid shows that the learned single Judge found that civil remedies are provided under the Act to the aggrieved person. The learned single Judge did record that breach of the protection order is considered as an offence punishable under Section 31 of the Act and the same is also made cognizable and non-bailable under Section 32. But under the other provisions of the Act, there is no reference to the expression “offence or crime” and, therefore, would not fall within the scope and ambit of Section 4(2) of the Code. The learned single Judge found that Section 4(2) of the Code is to be understood for an offence as defined under Section 2(n) of the Code, then only, the scheme of the Code including the provision of Section 482 of the Code can be applied, but not in relation to civil proceedings. The learned single Judge found that applicability of the Code as per Section 28 of the Act would not ipso facto attract Section 482 of the Code and, therefore, the learned single Judge ultimately found that the remedial measures under Section 482 of the Code would not be available to the petitioners and the petition was dismissed.

9. Whereas another learned single Judge of this Court (N.V. Anjaria,J.), in the case of Rameshbhai R. Desai (supra), after considering the submissions observed in paras 5 to 12 as under:-

“5. For examining the submission that on the basis of Narendrakumar
(supra), this petition could be filed and is entertainable, the said
decision may be adverted to beforehand. In that case the Court
addressed these two questions-(i) whether Domestic Violence Act
provides for civil remedies?, (ii) If yes, whether Section 482 of
Code of Criminal Procedure can be applied for quashing of such civil
proceedings?

5.1 The petitioners in Narendrakumar (supra) had prayed for the
quashment of the proceedings instituted under the provisions of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
mentioned as the Domestic Violence Act for sake of brevity). While
the facts are not available from the judgment, the proceedings under
the Domestic Violence Act were prayed to be quashed and set aside at
their threshold, that is at the stage of initiation itself, by
seeking an exercise of powers of the High Court under Section 482 of
the Code of Criminal Procedure, 1973. The question dealt with in the
present case is remarkably different and differentiable.

6. It may be true that various relief contemplated to be provided
for, to the aggrieved person-the woman creates civil rights. Section
17 of the Act confers right on women to reside in a shared household,
which is defined under the Act; Section 18 is with regard to granting
of various protection orders against the facts of domestic violence;
Section 19 empower the Magistrate to pass residence orders while
disposing of application under Section 12(1) of the Act; section 20
is for granting of monitory reliefs to the aggrieved persons
whereunder the Court may award amount under different heads; Section
21 deals with the orders of custody of any child or children to the
aggrieved person. Under Section 22, in addition to the above relief,
Magistrate can pass compensation orders.

All these reliefs can be prayed for by an aggrieved person by filing an
application to the Magistrate. At the same time, examination of the
Scheme of the Domestic Violence Act, it would be seen, as discussed
hereinafter, the remedial avenue and the machinery to secure the
relief is made available under the Code of Criminal Procedure, 1973.

6.1 Section 12 which falls under Chapter IV in the Act Procedure for
Obtaining Order and Reliefs, provides that an aggrieved person or a
Protection Officer or any other person on behalf of the aggrieved
person can present an application to the Magistrate seeking one or
more relief under the Act. Section 27 of the Domestic Violence Act
deals with the jurisdiction which reads as under

27. Jurisdiction-(1) The court of Judicial Magistrate of the first
class or the Metropolitan Magistrate, as the case may be, within the
local limits of which-

(a) the person aggrieved permanently or temporarily resides or
carries on business or is employed;

(b) the respondent resides or caries on business or is employed; or

(c) the cause of action has arisen, shall be the competent court to
grant a protection order and other orders under this Act and to try
offences under this Act.

(2) Any order made under this Act shall be enforceable throughout
India.

6.2 Section 28 is about the procedure which being also relevant, is reproduced hereinbelow :

28. Procedure-(1) Save as otherwise provided in this Act, all
proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences
under section 31 shall be governed by the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying
down its own procedure for disposal of an application under section
12 or under sub-section (2) of section 23.

6.3 Under Section 27 above, the jurisdiction is vested with the Court
of Judicial Magistrate of First Class or the Metropolitan Magistrate
as the case may be. The Magistrate here is to be understood as a
Magistrate defined under Section 2(i) of the Act. Section 28
expressly says about governing procedure to be under the Cr.P.C.,
though leeway is permitted to the Magistrate to adopt its own
procedure for disposal of application under Section 12 or under
Section 23(2) of th Act, this is to permit due elasticity in the
procedure to meet with the object and purpose of the Act, nature of
disputes to be dealt with under the Act and the relief to be granted.

6.4 Magistrate is defined under Section 2(i) and means the Judicial
Magistrate of the First Class or as the case may be, the Metropolitan
Magistrate, exercising jurisdiction under the Code of Criminal
Procedure, 1973 (2 of 1974) in the area where the aggrieved person
resides temporarily or otherwise or the respondent resides or the
domestic violence is alleged to have taken place.

6.5 Section 31(1) of the Act provides for penalty for breach of
protection order by respondent. Sub-section (2) again says that the
offence under sub-section (1) as far as practicable be tried by the
Magistrate who has passed the order, the breach of which is alleged
to have been caused by the accused. Sub-section (3) says that while
framing charges under sub-section (1) the Magistrate may also frame
charge under Section 498-A of the Indian Penal Code, 1860 or any
other provision of IPC or Dowry Prohibition Act, 1961, if the facts
of the case disclose commission of any such offence. The offence
under sub- section (1) of Section 31 is treated to be cognizable
offence under Section 32 of the Act. as regards the proof of this
offence, according to sub-section (2) of Section 32, upon the sole
testimony of the aggrieved person the Court may conclude that the
offence under Section 31(1) has been committed.

6.6 The Protection of Women from Domestic Violence Rules, 2006
framed under Section 37 of the Act, stand in tune with the aforesaid
statutory provisions. Referring to some of the relevant Rules in this
regard, Rule 15, Rule 6 provides for applications which are made
under Section 12 of the Act, to be made to the Magistrate in the
prescribed form. Rule 15 dealing with breach of the protection orders
stands in consonance with the parent provision under Section 31 and 32 of the
Act. They taken together firmly suggest that the machinery to secure
the enforcement of relief under the Act is under the Criminal
Procedure Code.

6.7 Except that the relief which may be availed to the aggrieved
person under the Act is civil in nature, in the entire scheme of the
Act for seeking and securing these relief, the remedies are provided
for before the Criminal Courts. An Application for various relief
under Section 12 is to be filed before the ‘Magistrate’ who is
defined. Section 27 of the Act deals with jurisdiction to provide
that the Court of the Judicial Magistrate of the First Class or the
Metropolitan Magistrate having the jurisdiction within the local
limits as provided under the Section, shall be the competent court to
grant the protection order. The protection orders are the orders
under Section 18. Section 18 says that the Magistrate after giving
the aggrieved person opportunity of hearing, passed order under sub-
clauses (a) to (g).

6.8 Vis-a-vis the above provisions under the Act, reverting to the
provisions of the Code of Criminal Procedure, Section 6 of the Code
of Criminal Procedure, 1973 may be referred to which mentions the
class of Criminal Courts. According to this Section, besides the High
Courts and Courts constituted under any law, there shall be Criminal
Codes of following classes in every stake. (i) Court of Session, (ii)
Judicial Magistrate of the First Class and in any Metropolitan
Magistrate, (iii) Judicial Magistrate of the Second Class and (iv)
Executive Magistrate. Section 4(1) of the Code provides that trial of
the Indian Penal Code and other laws shall be investigated, inquired
into, tried and otherwise dealt with according to the provisions of
the Code. Section 5, the savings clause, provides as nothing
contained in this Court shall, in absence of a specific provision to
the contrary affect any special law for the time being in force or
any special jurisdiction of power conferred or prescribed by any law
for the time being in force.

6.9 The Domestic Violence Act of 2005 is a statute of its own kind
designed to provide an umbrella of protection to the women who are
victims of domestic violence. This law is enacted with a blend of
provisions where the relief available under the provisions of the Act
are of civil nature but the machinery provided for in the Act to
secure the relief is envisaged under the Criminal Procedure Code. The
very object of providing a speedy remedy and effective protection of rights
can be said to have guided the Legislature to engraft the penal and
procedural provisions of the Code of Criminal Procedure for
enforcement of relief under the Act and for enjoyment of rights
availed to the aggrieved person.

7. The Kerala High Court in Baiju son of Chandran Nair Vs Latha in
Criminal Misc. Application No.969 of 2011 decided on 09th June, 2011
considered the question whether the court of Magistrate while
discharging functions under the Domestic Violence Act, 2005, is a
criminal court inferior to court of Session and the High Court. The
Court also addressed whether the judgment of Court of Session in an
appeal filed under Section 29 of the Act is amenable to the
revisional powers of the High Court under Sections 397(1) and 401 of
the Code of Criminal Procedure, 1973. The application in which the
above questions were considered, was filed under Section 482, Cr.P.C.
The contention on behalf of the petitioners before the Kerala High
Court was inter alia that as the Magistrate empowered under the Act,
exercises duties, functions and powers which are of a civil nature
and hence it cannot be said that Magistrate while acting under the
provisions of the Act, becomes an inferior criminal court for the
purpose of Sections 397 and 401 of the Code. It was also the case
canvassed that the judgment and order in appeal under Section 29 of
the Act cannot be subjected to challenge under Section 397(1) of the
Code because the Domestic Violence Act, 2005 does not expressly
provide so.

7.1 The Kerala High Court after considering its own other decisions
and decisions of other High Courts, concluded that even though the
relief if the Magistrate is required and authorized to grant under
certain provisions of the Act are of a civil nature, it cannot be
said that the Magistrate while exercising those functions is not
acting as a criminal court. It observed that under Section 29 appeal
is provided to lie before the Court of Sessions and not to the
Sessions Judge. It ruled that An appeal is provided to the Court of
Session under Sec.29 since the court of the Magistrate whose order is
under challenge is criminal court inferior to the Court of Sessions..

7.2 As regards amenability of judgment of the Court of Session in
appeal under Section 29 of the Act it was observed, and held by the
Kerala High Court that the appeal is governed by the provisions of
the Code though right of appeal is provided by Sec.29 of the Act. The
Act does
not say that judgment of the Court of Session is subject to challenge
before any other court. Under Section 397(1) of the Code, High Court
may call for and examine the records of any proceeding before any
inferior criminal court. It was stated that a Court of Session is a
criminal court inferior to the High Court for the purpose of exercise
of revisional power under Sec.397(1) and 401 of the Code. Sec.397(1)
of the Code empowers the courts specified therein to call for records
of the inferior criminal court and examine them for the purpose of
satisfying themselves as to whether a sentence, finding or order of
such inferior court is legal, correct or revisional power is to give
the superior criminal courts supervisory jurisdiction in order to
correct miscarriage of justice arising from misconception of law,
irregularity of procedure, neglect of proper precautions or apparent
harshness of treatment which has resulted on the one hand in hardship
to individuals. The power of revision is supervisory in character
enabling the superior courts to call for records of the inferior
criminal courts and examine them for the purpose of satisfying
themselves that the sentence, finding, order of proceeding of such
inferior court is legal, correct or proper. The decision of the
Kerala High Court lays down a correct proposition and deserves to be
followed.

7.3 It is not incongruous that the statute is of civil nature,
and/or the relief available under the provisions may also relate to
civil rights, but the machinery to procure the relief and the rights
is provided to be before criminal court. The instances are Section
155 of the Gujarat Municipalities Act, 1960 or Section 16(1) of the
Indian Telegraph Act. The remedial avenues under such laws is before
the Magistrate. The further question to be probed is whether court of
Magistrate before whom the remedy is provided, is an inferior or
subordinate criminal court to be amenable to the appellate or
revisional jurisdiction in the hierarchy of higher courts under the
Code of Criminal Procedure. Here a distinction may again arise-
whether a court of Magistrate which is otherwise one of the
hierarchical courts under Section 6 of Cr.P.C. is a persona designate
under the statute concerned or he functions as part of a criminal
court in the hierarchy of such courts provided under Cr.P.C. In case
of later, such court would be an inferior criminal court and would be
amenable to normal appellate and revisional jurisdiction envisaged
under the Criminal Procedure Code.

8. In Dargah Committee, Ajmer Vs. State of Rajasthan, [AIR 1962 SC 574],
the Supreme Court dealt with a question whether magistrate acting
under Section 234 of Ajmer Merwara Municipalities Regulations, acts
as a inferior criminal court to the High Court. Under the said
provision, the proceedings for recovery of tax were provided before
the Additional Tehsildar & Magistrate of Second Class. Against order
passed by the magistrate, appellant preferred criminal revision
application before the sessions court, Ajmer, the revision was
dismissed upon which the revisionist moved the High Court of
Judicature for Rajasthan in its revisional jurisdiction, before which
preliminary objection was that the criminal revision application was
incompetent since the magistrate who entertained respondent No.2s
application made under Section 234, was not an inferior criminal
court under Section 439 of Criminal Procedure Code. The Supreme Court
held that looking to Section 234, it was clear that proceedings
initiated thereunder before a magistrate were not more than recovery
proceedings. The Supreme Court took note that all the questions which
may legitimately be raised against the validity of the notice served
under Section 153 for carrying out the repairs or against the
validity of the claim made by the Committee under Section 222 to
recover the sum as a tax, could be and ought to be raised in an
appeal provided under Section 93(1) of the said Act and if appeal is
not preferred or is dismissed, then all those points are treated
concluded and can no more be raised in the proceedings under Section
234. It was observed that that is why the nature of inquiry
contemplated by Section 234 was very limited and it prima facie
partook the character of ministerial inquiry rather than judicial
inquiry 8.1 The Supreme Court held that the magistrate who
entertained the application under Section 234 was not an inferior
criminal court. The court stated, If at all, this would at best be a
proceeding of a civil nature and not criminal. That is why, we think,
whatever may be the character of the proceeding, whether it is purely
ministerial or judicial or quasi-judicial, the Magistrate who
entertains the application and holds the enquiry does so because he
is designated in that behalf and so he must be treated as a persona
designata and not as a Magistrate functioning and exercising his
authority under the Code of Criminal Procedure. He cannot therefore
be regarded as an inferior criminal court. That is the view taken by the
High Court and we see no reason to differ from it.

8.2 An Allahabad High Court decision in Saman Ismaeel Vs. Rafiq
Ahmad and anr.[2002 Cri.L.J. 3648] may also be referred in which
case, with reference to the provisions of Muslim Woman (Protection of
Right on Divorce] Act, the High Court of Allahabad having regard to
the preamble of the Act and the statement of objects and reasons held
that they clearly show that the Act had been passed with the purpose
to provide maintenance to a divorce muslim woman. The scheme of the
Act, it was observed, which extends to only seven sections showed
that the complete procedure for conducting the proceedings for
challenging the correctness of the order of the Magistrate have not
been provided. On the basis of the provisions of the said Act, the
High Court stated that the Act makes reference to a Magistrate and
the Code of Criminal Procedure, 1973 at several places. In that Act
also, Section 2(c) defines that a Magistrate would mean a Magistrate
of First Class exercising jurisdiction under the Code of Criminal
Procedure, 1973. The provisions of Domestic Violence Act, its Scheme
and the connotation Magistrate to be one under the Cr.P.C. are quite
comparable.

9. Coming to Narendrakumar (supra) again at this stage of
discussion, attentively seen, it rather leans towards the reasoning
adopted hereinabove, when it observed in paragraph 15.3 that True
that the object of Section 31 is to punish the offender for violation
of protection orders issued under Section 18 of D.V.Act. Breach of
protection orders is classified as cognizable and non-bailable
offence under Section 32, and upon testimony of the aggrieved person,
the Court may conclude that offence under Sub-sec.(1) of Section 31
has been committed by the accused. Protection order can be issued
under Section 16 and its breach is cognizable under Section 32. The
purpose of Sections 31 and 32 appears to be to ensure compliance of
protection orders, if necessary, by enforcing a criminal machinery
against the offender..

9.1 Narendrakumar (supra) does not lay down even impliedly much less
expressly, that in a case where order of the Judicial Magistrate is
subjected to Appeal under Section 29 of the Act, judgment and order
passed by the Sessions Court in Appeal could be challenged in a writ
proceedings. Narendrakumar (supra) does not efface the remedy of
Appeal or Revision under the hierarchy of criminal courts as per the
provisions of the Code of Criminal Procedure which is made applicable
to the proceedings of the Domestic Violence Act. It is not possible
to stretch the ratio of Narendrakumar (supra) so as to comprehend the
same to be anything else than what it comprehend in paragraph 15.7.
It has to be stated that ratio of the said decision was in the
context of and confined to its own facts and the questions framed by
the Court to be addressed.

9.2 For Narendrakumar (supra) suffice it is to say that the nature
of relief available under a particular law and the machinery to
secure the relief may be different and for both, the legislature may
make provisions under different nature of laws-civil and criminal.
Their co- existence need not be read to create a conflict of any kind
in their operation or application.

10. The scheme of the Protection of Women from Domestic Violence
Act, 2005, as surveyed hereinabove, suggests that right from the
initiation of the proceedings, the remedial machinery is provided
before the court of Magistrate of First Class before whom application
under Section 12 of the Act would lie, and against the order made by
the Magistrate, appeal is provided to the Court of Session under
Section 29 of the Act. This is in the background of an express
provision under Section 27 providing for jurisdiction investing the
same with the Court of Judicial Magistrate of First Class or the
Metropolitan Magistrate, as the case may be, as well as Section 27
providing that all proceedings under Sections 12, 18, 19, 20, 21, 22
and 23 and offences under Section 31 shall be governed by the Code of
Criminal Procedure, 1973.

10.1 The legislature has implanted the provisions of Code of
Criminal Procedure, 1973 (2 of 1974) not only for procedural purpose
under the Sections which deal with relief orders, but also for the
purpose of remedy of appeal, etc. Considering the relevant provisions
under the Domestic Violence Act dealing with the application to the
Magistrate, jurisdiction, procedure, appeal as well as provisions
under Sections 31 and 32 of the Act dealing with the penal aspects
and the cognizance and proof, it becomes manifest that though the
statute in question in general is one of civil kind and the relief
available thereunder is of civil nature, the jurisdiction of the HC-
NIC Page 25 of 46 Created On Tue Dec 01 01:12:36 IST 2015 Magistrate
and the Court of Session, are under the Code of Criminal Procedure,
1973. They are explicitly made so to operate.

10.2 The Court of Judicial Magistrate or the Metropolitan Magistrate
on whom jurisdiction is vested under this Act are the courts
mentioned under Section 6 of the Criminal Procedure Code. The Court
of Session mentioned in Section 29 of the Act is the Court of Session
under Section 6(1) read with Section 9 of Cr.P.C. A Magistrate
dealing with the matters under the Domestic Violence Act and a
Sessions Judge entertaining and deciding appeal under Section 29 of
the Act are clothed with all the powers of the criminal courts under
the Code they have all attributes, power and functional sphere of
criminal courts under the Code. They are the classes of courts to be
treated as inferior criminal courts, amenable to the revisional
jurisdiction under Section 397(1) and Section 401, Cr.P.C.

10.3 In other words, court of Magistrate or Court of Session under
the Domestic Violence Act are courts which exist and function under
the Cr.P.C. They are vested with full-fledge adjudicatory as well as
procedural powers under the Cr.P.C. Their functioning is not in a
limited role. Neither the Magistrate of the First Class, nor the
Court of Session under the Domestic Violence Act are persona
designata. The ratio of the Dargah Committee, Ajmer (supra) applies
with reverse logic.

10.4 The jurisdiction of the Magistrate or the jurisdiction of court
of sessions under the Act therefore, are referable to and derived
from the Code of Criminal Procedure. The Act in its provisions
specifically mentions to be so. Against the orders of the Magistrate,
appeal is provided under Section 29 of the Act to the Court of
Session. Against the judgment and order in appeal under Section 29,
no further appeal or revision is provided in the Act. The provisions
of Code of Criminal Procedure, for the revisional powers under
Section 397(1) and Section 401, Cr.P.C. would then attract and apply.
The remedy of revision under the Cr.P.C. before the High Court has to
be held to be available.

11. The impugned judgment and order, for the discussion and the
reasons recorded above, is revisable by the High Court in exercise of
its power under Section 397(1) read with Section 401 of the Code. The
petitioner has the said remedy available. The impugned judgment and
order in Criminal Appeal is pursuant to an adjudicatory exercise involving
fact-finding inquiry and fact-based conclusions, deriving
jurisdiction under Section 29 of the Act as above. It is not the case
of erroneous or illegal assumption of jurisdiction, nor any
jurisdictional error or irregularity could be demonstrated or existed
in respect of the impugned judgment and order delivered in the
Criminal Appeal, making out no case whatsoever for issuing the writ
of certiorari.

12. In view of above, the proper remedy against the impugned
judgment and order being of filing of Criminal Revision Application
under Section 397(1) read with Section 401 of the Code of Criminal
Procedure, 1973, writ jurisdiction of this Court by filing petition
under Article 226 of the Constitution to set aside the impugned
judgment and order could not have been invoked. The petitioner has to
approach the revisional court availing the remedy of Revision
Application.”

10. The aforesaid shows that the learned single Judge, after considering the provisions of Sections 27, 28, 31 and 37 of the Act found that the machinery to secure enforcement of the relief under the Act is under the Code. It was also considered by the learned single Judge that appeal is provided to the Court of Session as per Section 29 of the Act. The learned single Judge did find that in the case of Narendrakumar (supra) the court did not efface the remedy of appeal or revision under the hierarchy of criminal courts as per the provisions of the Code which is made applicable to the proceedings under the Act. The learned single Judge further found that applicability of the provisions of the Code is by express provision and, therefore, appropriate remedy against the impugned judgment and order is revision under Section 397(1) read with Section 401 of the Code and not under Article 226 of the Constitution when there is already a remedy available to approach before the revisional court.

11. Two important aspects need to be emphasized after considering both the above-referred decisions of two learned single Judges; one is that in the case of Narendrakumar (supra), the learned single Judge was examining the aspect of quashment of the proceedings instituted under Sections 18, 19, 20 and 21 of the Act, whereas in the case of Rameshbhai R. Desai (supra), the learned single Judge was examining the matter against the judgment and order passed by the Sessions Court under the Act which arose from the order passed by the learned Metropolitan Magistrate under the Act. It is hardly required to be stated that challenging the jurisdiction for initiation of the proceedings or quashing of the proceedings under the Act at the outset is an aspect which can be considered in contradistinction to the aspect of quashing of a judgment of an appellate court or even the order of the Magistrate passed after bi-parte hearing.

12. After having considered the above-referred background, we may now consider the scheme of the Protection of Women from Domestic Violence Act, 2005.

13. It is true that the Act provides for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. But at the same time, one has to keep in mind the express language used by the Parliament for giving literal meaning to the provisions of the Statute. In case of any ambiguity or in a case where the Court is unable to extract the literal meaning, the objects and reasons may be of any help. It is by now well-settled that the Court, while interpreting any provision of the Statute will first try to gather literal meaning and if literal meaning is not possible, or if an ambiguity arises on account of other provisions of the very Act, the Court may consider the objects and reasons for giving purposeful interpretation to any Statute or language of any section. But in cases where the language used by the Statute is unambiguous, the Court would go by the plain and simple meaning unless the constitutional validity of that particular Statute is challenged. Even in the present case also, there is no challenge to the constitutional validity of any of the provisions of the Act.

Therefore, while considering the scheme of the Act and the consequential remedial measures available, we will proceed on the basis of the sections and the language used in the sections of the Act as it exists.

14. Section 2 of the Act provides for various definitions.

Section 3 provides for definition of domestic violence.

Chapter III provides for powers and duties of the Protection Officers, service providers etc. Chapter IV provides for procedure for obtaining orders of reliefs. It is true that under Section 12, the language used is application to the Magistrate and not complaint to be filed before the Magistrate. But at the same time, application is to be made to the Magistrate and not to the Civil Judge. The term “Magistrate” is defined under Section 2(i) of the Act. The aforesaid shows that there is express reference to the jurisdiction of the Magistrate under the Code of Criminal Procedure in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place. Therefore, the Act says that initiation of jurisdiction before the Magistrate is by virtue of the provisions of the Code. Section 19(3) of the Act provides for power with the Magistrate to require the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence. Sub-section (4) of Section 19 provides that such order shall be deemed to be an order under Chapter VII of the Code of Criminal Procedure, 1973 and shall be dealt with accordingly. Sub-section (7) of Section 19 provides enabling power with the Magistrate to direct an officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. Sections 27, 28 and 29 of the Act read as under:-

” 27. Jurisdiction-(1) The court of Judicial Magistrate of the first
class or the Metropolitan Magistrate, as the case may be, within the
local limits of which-

(a) the person aggrieved permanently or temporarily resides or
carries on business or is employed;

(b) the respondent resides or caries on business or is employed; or

(c) the cause of action has arisen, shall be the competent court to
grant a protection order and other orders under this Act and to try
offences under this Act.

(2) Any order made under this Act shall be enforceable throughout
India.”

28. Procedure-(1) Save as otherwise provided in this Act, all
proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences
under section 31 shall be governed by the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying
down its own procedure for disposal of an application under section
12 or under sub-section (2) of section 23.

29. Appeal.– There shall lie an appeal to the Court of Session
within thirty days from the date on which the order made by the
Magistrate is served on the aggrieved person or the respondent, as
the case may be, whichever is later.”

15. The aforesaid Section 27 shows the competence of the court of Judicial Magistrate of the first class or the court of Metropolitan Magistrate, as the case may be, for the competence to grant a protection order. Section 28 expressly provides that all proceedings under Sections, 12, 18, 19, 20, 21, 22 and 23 as well as offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure.

16. Two pertinent aspects need to be referred; one is that the legislature, for the purpose of proceedings under under Sections 12, 18, 19, 20, 21, 22 and 23 has given same treatment to the proceedings as if for trial of the offences under Section 31 of the Act. Therefore, distinction as considered by the learned single Judge of this Court in the case of Narendrakumar (supra) is done away with by the express language of the Parliament. It is true that by virtue of sub-section (2) of Section 28, the court shall not be prevented from laying down its own procedure, but there again, it is only limited to disposal of an application under Section 12 or under Section 23(2).

Therefore, the paramount intention of the Parliament for express language of interweaving provision of the Code to the proceedings under the Act cannot be said as diluted. Further, as per Section 29 of the Act, an appeal is provided to the court of Sessions which again strengthens the applicability of the Code to the proceedings under the Act.

17. At the first brush, one may find that if the proceedings are treated as if civil proceedings, the Code may apply but such general proposition would be uncalled for in a case where the Parliament, by express provision has applied the provisions of the Code to the proceedings under the Act. At this stage, we may also refer to the provisions of Sections 31 and 32 of the Act which reads as under:-

“31. Penalty for breach of protection order by respondent.–(1) A
breach of protection order, or of an interim protection order, by the
respondent shall be an offence under this Act and shall be punishable
with imprisonment of either description for a term which may extend
to one year, or with fine which may extend to twenty thousand rupees,
or with both.

(2) The offence under sub-section (1) shall as far as practicable be
tried by the Magistrate who has passed the order, the breach of which
has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrate may
also frame charges under section 498A of the Indian Penal Code (45 of
1860) or any other provision of that Code or the Dowry Prohibition
Act, 1961 (28 of 1961), as the case may be, if the facts disclose the
commission of an offence under those provisions.

32. Cognizance and proof.–(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974), the offence under
sub-section (1) of section 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the court may
conclude that an offence under sub-section (1) of section 31 has been
committed by the accused.”

The breach of a protection order is an offence and is also made cognizable and non-bailable notwithstanding anything contained in the Code. But the relevant aspect is that proceedings for the trial of an offence under Section 31 are treated at par by the Parliament with the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the Act as per the express language used under Section 28 of the Act. In view of the aforesaid discussion, the only inescapable conclusion could be that once the proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 are or is initiated either jointly or independently by the order passed by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, the provisions of the Code would be applicable.

18. Even if the aforesaid is the conclusion, two incidental aspects may arise for further consideration; one is the stage at which the provisions of the Code would start operating, and another is the remedial measure available to any aggrieved person on account of such proceedings under the Act. If, for example, in a given case, the matter is before the protection officer and the report is yet to be submitted to the Magistrate or the report is prepared and the application is yet to be made before the Magistrate or that the application is made to the Magistrate, but the Magistrate has yet to pass judicial order of any type including for issuance of notice or protection order, in contradistinction to the cases where application is already made and the learned Magistrate has already passed a judicial order including to issue summons or notice to the respondents, in the cases of former, one may resort to the proceedings under Article 226 of the Constitution if such person is in a position to satisfactorily demonstrate before the Court that the proceedings are beyond the scope and ambit of the Act, and therefore, be quashed. But under such circumstances also, the writ powers of this Court under Article 226 of the Constitution would be against contemplated action or an action to which the Code is to apply and therefore, it will be Special Criminal Application and not Special Civil Application because the High Court jurisdiction under Article 226 of the Constitution on criminal side is to be invoked. Whereas in the case of the latter, once the applicability of the Code has started or begun on account of the judicial order passed by the learned Magistrate including that of issuance of notice or summons, the remedial measures under the Code would be available to an aggrieved person as per the provisions of the Code.

Even otherwise also, by way of self-imposed restriction in exercise of power under Article 226 of the Constitution, when there are express statutory remedies available, this Court would normally not entertain a petition under Article 226 of the Constitution and may relegate the parties to resort to the remedies as provided under the Statute, i.e., the Code. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. In view of the discussion and the observations made by us herein above, once the provision of the Code has been made applicable, it cannot be said that remedy under Section 482 of the Code would be unavailable to the aggrieved person. But the said aspect is again subject to self-imposed restriction of power of the High Court that when there is express remedy of appeal available under Section 29 before the court of Session or revision under Section 397, the Court may decline entertainment of the petition under Section 482 of the Code. But such in any case would not limit or affect the inherent power of the High Court under Section 482 of the Code. Hence, the view taken by the learned single Judge in the case of Narendrakumar (supra), cannot be said to be correct, since in the said case, proceeding under Sections 18, 19, 20 and 21 under the Act were already initiated and the applicability of the Code as per the above-referred observation and discussion had already started.

20. In the case of Rameshbhai R. Desai (supra), since the proceedings under the Act had already started and concluded, the applicability of the Code to such proceedings was an undisputed position. Not only that, but an appeal was preferred under Section 29 of the Act before the learned Sessions Judge and failed, against which a petition under Article 226 of the Constitution was preferred. Once express remedy was available to the litigant under the Code and this Court has declined to entertain the petition under Article 226 of the Constitution, the view taken by the another learned single Judge cannot be said to be incorrect.

21. At this stage, we may usefully refer to the decision of the Apex Court in the case of Mohit @ Sonu and another vs. State of U.P., reported at (2013) 7 SCC 789 and more particularly, the observations made at paras 25 to 32 which read as under:-

“25. In the light of the ratio laid down by this Court referred to
hereinabove, we are of the considered opinion that the order passed
by the trial court refusing to issue summons on the application filed
by the complainant under Section 319 of Cr.P.C. cannot be held to be
an interlocutory order within the meaning of sub-section (2) of
Section 397 of Cr.P.C. Admittedly, in the instant case, before the
trial court the complainant’s application under Section 319 of
Cr.P.C. was rejected for the second time holding that there was no
sufficient evidence against the appellants to proceed against them by
issuing summons. The said order passed by the trial court decides the
rights and liabilities of the appellants in respect of their
involvement in the case. As held by this Court in Amar Nath’s case
(1977) 4 SCC 137), an order which substantially affects the rights of
the accused or decides certain rights of the parties cannot be said
to be an interlocutory order so as to bar a revision to the High
Court against that order as contemplated under Section 397(2) of
Cr.P.C.

26. In the instant case as noticed above, when the complainant’s
application under Section 319 of Cr.P.C. was rejected for the second
time, he moved the High Court challenging the said order under Section 482
of Cr.P.C. on the ground that the Sessions Court had not correctly
appreciated the facts of the case and the evidence brought on record.
The complainant wanted the High Court to set aside the order after
holding that the evidence brought on record is sufficient for coming
to the conclusion that the appellants were also involved in the
commission of the offence.

27. In our considered opinion, the complainant ought to have
challenged the order before the High Court in revision under Section
397 of Cr.P.C. and not by invoking inherent jurisdiction of the High
Court under Section 482 of Cr.P.C. May be, in order to circumvent the
provisions contained in sub- section (2) of Section 397 or Section
401, the complainant moved the High Court under Section 482 of
Cr.P.C. In the event a criminal revision had been filed against the
order of the Sessions Judge passed under Section 319 of Cr.P.C., the
High Court before passing the order would have given notice and
opportunity of hearing to the appellants.

28. So far as the inherent power of the High Court as contained in
Section 482 of Cr.P.C. is concerned,the law in this regard is set at
rest by this Court in a catena of decisions. However, we would like
to reiterate that when an order, not interlocutory in nature, can be
assailed in the High Court in revisional jurisdiction, then there
should be a bar in invoking the inherent jurisdiction of the High
Court. In other words, inherent power of the Court can be exercised
when there is no remedy provided in the Code of Criminal Procedure
for redressal of the grievance. It is well settled that inherent
power of the court can ordinarily be exercised when there is no
express provision in the Code under which order impugned can be
challenged.

29. Courts possess inherent power in other statute also like the
Code of Civil Procedure (CPC), Section 151 whereof deals with such
power. Section 151 of CPC reads:

“151. Saving of inherent powers of court.– Nothing in this Code
shall be deemed to limit or otherwise affect the inherent powers of
the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of court.”

30. This Court in the case of Padam Sen and Anr. v. State of Uttar
Pradesh, AIR 1961 SC 218 regarding inherent power of the Court under
Section 151 CPC observed: (AIR p.219, para 8) “8. …The inherent
powers of the Court are in addition to the powers specifically
conferred on the Court by the Code. They are complementary to those
powers and therefore, it must be held that the Court is free to
exercise them for the purposes mentioned in Section 151 of the Code
when the exercise of those powers is not in any way in conflict what
has been expressly provided in the Code or against the intentions of
the Legislation. It is also well recognised that the inherent power
is not to be exercised in a manner which will be contrary to or
different from the procedure expressly provided in the Code.”

31. In a Constitution Bench decision rendered in the case of Manohar
Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527,
this Court held that : (AIR p. 537, para 43)

“43. … The inherent
jurisdiction of the Court to make orders ex debito justiciae is
undoubtedly affirmed by S.151 of the Code but inherent jurisdiction
cannot be exercised so as to nullify the provision of the Code of
Civil Procedure. Where the Code of Civil Procedure deals expressly
with a particular matter, the provision should normally be regarded
as exhaustive.”

32. The intention of the Legislature enacting the Code of Criminal
Procedure and the Code of Civil Procedure vis-?is the law laid down
by this Court it can safely be concluded that when there is a specific remedy
provided by way of appeal or revision the inherent power under
Section 482, Cr.P.C. or Section 151, C.P.C. cannot and should not be
resorted to.”

22. We may also refer to certain decisions of other High Courts for which references were made by the learned counsel appearing for both the sides.

23. In the case of State of Uttar Pradesh and others v.Mukhtar Singh and others, reported at AIR 1957 All.505, the question did not arise for consideration before the Apex Court about the proceedings to be faced by the aggrieved person, whether civil or criminal. So far as the application before the Magistrate is concerned, even if it is considered that civil rights of a woman were being pursued by her, the fact remains that the other side, that is, the respondent is to face the proceedings to which the Code applies and, therefore, such distinction to such type of proceedings had not fallen for consideration before the Allahabad High Court. Hence, we are of the view that the above decision would not be applicable in the present case.

24. In the decision of Delhi High Court in the case of Varsha Kapoor v. UOI and others, in Writ Petition (Crl) No. 638 of 2010, the question of constitutional validity of Section 2(q) of the Act was under challenge and the observations were made that remedy is provided by the present Act to civil rights of women, but thereby it cannot be said that applicability of the Code would be lost to the proceedings already initiated under the Act.

Hence, the said decision cannot be made applicable to the facts of the present case.

25. In the decision of Kerala High Court in the case of Dr. V.K. Vijayalekshmi Amma v. Bindu V and others in Crl. MC No. 2225 of 2009, it was found that after the proceedings were initiated under Section 12 by the learned Magistrate, there are adequate remedies before the Magistrate and, therefore, it was observed that it is not for the High Court to exercise extraordinary inherent powers and to quash the proceedings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

26. In another decision of Kerala High Court in the case of Harshkumar and Another v. State of Kerala and Others, reported at 2011 (3) KHC 15, it was held that the Magistrate exercising functions under the Act acts as a Criminal Court inferior to the Court of Sessions and the High Court. It was also held that the order passed by the Court of Sessions in an appeal under Section 29 of the Act is revisable by the High Court in exercise of the power under Section 397(1) and 401 of the Code, and therefore, exercise of power under Section 482 of the Code was declined.

27. In view of the aforesaid observations and discussion, the following conclusions:

(i) The provisions of the Act provide for remedial measures for civil rights of women but the machinery provided is through criminal court.

(ii) Initiation of proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act would begin only when the Magistrate has passed any judicial order including of issuance of notice for hearing.

(iii) Any person affected by any proceedings under the Act, prior to initiation of proceedings under Section 12 of the Act may prefer Special Criminal Application under Article 226 of the Constitution if as per him, the proceedings are beyond the scope and ambit of the Act or without any authority in law. But this Court, while entertaining the petition under Article 226 of the Constitution may decline entertainment of the petition by way of self-imposed restriction in exercise of the judicial powers or may decline entertainment of the petition in exercise of its sound judicial discretion.

(iv) Once proceedings are initiated under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 either independently or jointly on account of any judicial order passed by the learned Magistrate including issuance of notice, such proceedings shall be governed by the Code of Criminal Procedure coupled with the power of the Court under Section 28(2) to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23 of the Act.

(v) Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available. But the higher forum under the Code of Criminal Procedure, may be the Court of Session or the High Court, may decline entertainment of such proceedings considering the facts and circumstances of the case and as per the settled principles of law and in accordance with law.

(vi) The aforesaid remedial measures provided under the Code of Criminal Procedure would also include the powers of this Court under Section 482 of the Code, but the Court may, in a given case, decline entertainment of the petition when there is express remedy provided under the Code of Criminal Procedure or no case is made out to prevent the abuse of process of any Court, or no case is made out to secure the ends of justice.

28. In view of the aforesaid conclusions, we find that Special Criminal Application No. 5313 of 2015 shall now be placed before the learned single Judge for examining the merits of the matter in accordance with law.

29. The Reference stands disposed of.

(JAYANT PATEL, ACJ.)

(N.V.ANJARIA, J.)

pirzada

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