BOMBAY HIGH COURT
JUDGE(S) : G.A. Sanap
Citations :
Daya W/o Jalendra Khare and Others Vs. State of
Maharashtra and Others
Criminal Application [Apl] No. 179 of 2020 w ith Criminal Application [Apl] No. 24 of 2020
w ith Criminal Application [Apl] No. 990 of 2019 w ith Criminal Writ Petition No. 584 of
2022 with Criminal Writ Petition No. 585 of 2022 ♦ Date of Decision : 06/06/2023
Acts Referred
- Code of Criminal Procedure — S.482
- Code of Criminal Procedure — S.204
- Code of Criminal Procedure — S.468
- Protection of Women from Domestic Violence Act — S.12
- Protection of Women from Domestic Violence Act — S.18
- Protection of Women from Domestic Violence Act — S.19
- Protection of Women from Domestic Violence Act — S.20
- Protection of Women from Domestic Violence Act — S.21
- Protection of Women from Domestic Violence Act — S.22
- Protection of Women from Domestic Violence Act — S.23
- Protection of Women from Domestic Violence Act — S.29
- Protection of Women from Domestic Violence Act — S.31
- Protection of Women from Domestic Violence Act — S.33
Advocates Appeared
For the Appellant:- Mr. S. V. Sirpurkar, Advocate for the applicant., Ms.
Ayushi Dangre, Advocate for the petitioners.
For the Respondent:- Mr. S. A. Ashirgade, A.P.P. for non-applicant no.1, Mrs.
D.I. Charlewar with Mr. I.S. Charlewar, Advocates for non-applicant no.2 Mr.
Parvez W. Mirza, Advocate for the non-applicant APL No. 990/2019 : Mrs.
Padma M. Chandekar, Advocate for the applicants. Mr. S. A. Ashirgade,
A.P.P. for non-applicant no.1 Mr. Bhushan Dafle, Advocate for non-applicant
no.2 & 585/2022 None for the respondents.
CASES REFERRED:
for any consultancy or our legal service please click here - Adalat Prasad .vs. Ruplal Jindal, (2004) 7 SCC 338.
- Arul Daniel and others .vs. Suganya, 2022 SCC Online Mad. 5435.
- CWT v Bangalore Club, (2020) 9 SCC 599.
- Dr. P. Pathamanathan and others .vs. . Tmt. V. Monika and others, 2021
SCC Online (Madras) 8731. - Kamatchi .vs. Laxmi Narayanan, AIR 2022 SC 2932.
- Nandkishor Pralhad Vyawahare .vs. Mangala, (2018) 3 Mh.L.J. 913.
- Nusli Neville Wadia v Ivory Properties [(2020) 6 SCC 557.
- S.A.L. Narayan Row v Ishwarlal Bhagwandas [(1966) 1 SCR 190.
- Sarah Mathew .vs. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62.
- Suo Motu v. Ushaben Kishorbhai Mistry, 2016 2 RCR (Cri) 421.
- V.B. D’monte .vs. Bandra Borough Municipality, AIR 1950 Bom 397.
JUDGMENT/ORDER: - In all the above applications, filed under Section 482 of the Code of Criminal
Procedure (for short “Cr.P.C.”), with a prayer to quash and set aside the
proceedings initiated by the non-applicant, claiming reliefs under the provisions
of the Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as “the D.V. Act” for short), the non-applicants have questioned the
maintainability of the applications under Section 482 of the Cr.P.C. - Learned advocates appearing for the non-applicants in all the above matters,
in order to canvas the issue of maintainability of the application under Section
482 of Cr.P.C., have placed heavy reliance on the decision of the Hon’ble Apex
Court in the case of Kamatchi .vs. Laxmi Narayanan, reported at AIR 2022 SC - In view of challenge to the maintainability of the application under
Section 482 of Cr.P.C., relying upon the decision in Kamatchi’s case (supra), I
have heard learned advocates for the parties on this issue. - Elaborate narration of the facts of each case may not be necessary because
this Court is considering the issue of maintainability of the applications under
Section 482 of Cr.P.C. filed by the applicants before this Court. However, at the
threshold it would be necessary to state that the non-applicant in each
proceeding has initiated the proceeding under Section 12 of the D.V. Act
seeking various reliefs provided under Sections 18 to 23 of the D.V. Act. In all
the applications, the Courts concerned have issued the notices. On service of the
notices, the applicants, without adopting any further proceeding before the
Courts below, approached this Court by invoking Section 482 of the Cr.P.C. and
prayed for quashing the said proceeding. - I have heard learned advocates for the applicants and learned advocates for
the non-applicants. Perused the record and proceedings. - Learned advocates Mr. I.S. Charlewar and Shri P.W. Mirza appearing on
behalf of the non-applicants advanced the submissions in their respective
matters. Learned advocates appearing for the nonapplicants in remaining matters
have adopted the submissions advanced by Mr. Charlewar and Mr. Mirza. - The gist of the submissions advanced by learned advocates Mr. Charlewar and
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Mr. Mirza is as follows :
Hon’ble Apex Court in Kamatchi .vs. Laxmi Narayanan’s case (supra) has
considered the decision of learned Single Judge of Madras High Court in the
case of Dr. P. Pathamanathan and others .vs. . Tmt. V. Monika and others,
reported at 2021 SCC Online (Madras) 8731 and has approved the said
decision. Hon’ble Apex Court in Kamatchi’s case (supra), has dealt with the
arguments advanced by the learned advocate for the respondents in the said case
by relying upon the decision in the case of Adalat Prasad .vs. Ruplal Jindal,
reported at (2004) 7 SCC 338 and held that the matter where the order of
issuance of process is issued in a complaint on taking cognizance, stands on a
different footing and cannot be compared with the proceeding under Section 12
of the D.V. Act, because the scope of notice under Section 12 of the D.V. Act is
to call for a response from the respondent in terms of the Statute so that after
considering rival submissions, appropriate order can be issued. Hon’ble Apex
Court in this case, rejected the submissions made by learned Senior Advocate
appearing for the respondent to meet the arguments advanced by learned
advocate for the appellant, challenging maintainability of application under
Section 482 of Cr.P.C. by relying upon the decision in the case of Dr. P.
Pathamnathan (supra). Hon’ble Apex Court, by relying upon the decision in the
case of Adalat Prasad (supra), has held that considering the nature of the
proceedings under the D.V. Act, the same cannot be challenged under Section
482 of the Cr.P.C.. - It was pointed out that decision of Hon’ble Apex Court in Kamatchi’s case
(supra) has been considered by the Full Bench of Madras High Court in the case
of Arul Daniel and others .vs. Suganya, reported at 2022 SCC Online Mad. - The Full Bench, in view of the observations of Hon’ble Apex Court in
Kamatchi’s case (supra) and for the other reasons recorded in the judgment, has
held that the application under Section 482 of Cr.P.C. is not maintainable. Main
emphasis was laid on the procedure prescribed in the D.V. Act and the Rules
framed thereunder. It was pointed out that in view of the provisions of subsection
(1) of Section 28, the Magistrate or Metropolitan Magistrate could be
said to be “Court designata” and not a “Criminal Court” and therefore, the
recourse to Section 482 of the Cr.P.C. straightway cannot be taken for quashing
the said proceeding. Reliance is also placed on the decision of Full Bench of this
Court in V.B. D’monte .vs. Bandra Borough Municipality [AIR 1950 Bom
397]. - Learned advocates for the non-applicants further submitted that in view of the
decision of Hon’ble Apex Court in Kamatchi’s case (supra), the Full Bench
decision of the Bombay High Court in Nandkishor Pralhad Vyawahare .vs.
Mangala, reported at (2018) 3 Mh.L.J. 913 may not be applicable. Learned
advocates submitted that now the issue of maintainability has to be decided
keeping in mind the law laid down in Kamatchi’s case (supra). Learned
advocates further pointed out that the Full Bench of Madras High Court in Arul
Daniel’s case (supra) has considered the decision in Kamatchi’s case and
observed that Hon’ble Apex Court in no uncertain terms has held that the
proceeding under Section 482 of Cr.P.C. cannot be maintained straightway for
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quashing the proceeding initiated under the D.V. Act. - On the other hand, learned advocates Ms. Ayushi Dangre and Mr. S.V.
Sirpurkar, appearing for the applicants in respective applications advanced main
arguments to oppose the prayer made by the non-applicants. Learned advocates
appearing for the applicants in remaining applications have adopted their
submissions. - The gist of the submissions of learned advocates Ms. Ayushi Dangre and Mr.
S.V. Sirpurkar for the applicants is as follows :
The decision of the Full Bench of Bombay High Court in Nandkishor Pralhad
Vyawahare’s case (supra) was not considered by the Hon’ble Apex Court in
Kamatchi’s case (supra). In Kamatchi’s case, the issue involved was with regard
to the limitation for filing the proceeding under Section 12 of the D.V. Act. In
Kamatchi’s case (supra), the issue of maintainability of the application under
Section 482 of Cr.P.C. for quashing the proceeding filed under Section 12 of the
D.V. Act, was not involved. The observations made by the Hon’ble Apex Court
in paragraph 31 of the decision in Kamatchi’s case cannot be relied upon to
substantiate the argument that Hon’ble Apex Court has held that the proceeding
under Section 482 of the Cr.P.C., seeking relief of quashing of the D.V. Act
proceeding, is not maintainable. The decision of the Full Bench of Madras High
Court in Arul Daniel’s case (supra) cannot be relied upon by the non-applicants
because it is in conflict with the decision of the Full Bench of this Court in
Nandkishor Vyawahare’s case (supra). The decision of the Full Bench of
Bombay High Court is binding on this Court and therefore, the argument
advanced on behalf of the non-applicants on the point of maintainability cannot
be entertained. Reliance is placed on the provisions of Section 28 of the D.V.
Act to substantiate the submission that the provisions of Code of Criminal
Procedure are made applicable to the proceedings under the D.V. Act and
therefore, application under Section 482 of Cr.P.C. cannot be excluded. - In view of the rival submissions on the point of maintainability of the
proceedings under Section 482 of the Cr.P.C., I have gone through the record
and proceedings and more particularly the judgments relied upon by the learned
advocates for the parties. - In these cases, on behalf of the non-applicants, heavy reliance has been
placed on the decision of Hon’ble Apex Court in Kamatchi’s case (supra) in
support of the contention that application under Section 482 of Cr.P.C. is not
maintainable for quashing the proceeding filed under Section 12 of the D.V. Act.
Learned advocates for the other side submitted that the decision of Hon’ble
Apex Court was mainly concerned with the point of limitation for the purpose of
filing application and not on the point of maintainability of the proceedings
under Section 482 of Cr.P.C. It is to be noted that the Full Bench of Madras
High Court in Arul Daniel’s case (supra) has considered the decision of Hon’ble
Apex Court in Kamatchi’s case (supra) and has observed that the proceeding
under Section 482 of the Cr.P.C. for quashing the proceeding under Section 12
of the D.V. Act is not maintainable and the remedy available to such a party
would be a statutory appeal before the Sessions Court under Section 29 of the
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D.V. Act. Hon’ble Apex Court in Kamatchi’s case has considered and approved
the decision of learned Single Judge of Madras High Court in Dr. P.
Pathmanathan’s case (supra). In my view, before proceeding to appreciate the
submissions made on the decision in Kamatchi’s case and other decisions, it
would be appropriate to consider the decision of learned Single Bench of Madras
High Court in Dr. P. Pathmanathan’s case (supra). Hon’ble Apex Court in
Kamatchi’s case has extracted paragraph 19 from the decision of Dr. P.
Pathmanathan’s case. In Dr. P. Pathmanathan’s case (supra), the only issue
raised was maintainability of the proceedings under Section 482 of the Cr.P.C.
for quashing of D.V. Act proceedings. The issue of limitation was not involved
in the said case. Learned Single Judge of Madras High Court has considered the
decision of Hon’ble Apex Court in Adalat Prasad’s case (supra) and held that
there is no order of issuance of process as contemplated under Section 204 of
the Cr.P.C. in D.V. Act proceeding and therefore, the principle laid down in
Adalat Prasad’s case (supra) could not be invoked in D.V. Act proceeding. It is
further pertinent to note that in paragraph 46 of the decision in Dr. P.
Pathmanathan’s case (supra), learned Single Judge of Madras High Court has
considered the decision of the Full Bench of Bombay High Court. Paragraph 53
of the decision of the Full Bench was reproduced. Since, Hon’ble Apex Court
has considered and approved the decision in Dr. P. Pathmanathan’s case, it
would be necessary to reproduce the relevant observations where the Full Bench
of Bombay High Court has been considered. Paragraphs 46 to 50 would be
relevant. The same are extracted below : - A Division Bench of the Bombay High Court had reached the
same conclusion in Sukumar Pawanlal Gandhi v Bhakti Sushil
Gandhi. However, a Full Bench of the Bombay High Court in
Prabhakar Mohite v State of Maharashtra, AIR 2018 Bom, overruled
the decision in Sukumar Pawanlal Gandhi, (cited supra). The Full
Bench correctly noticed that the character of a proceeding is not
dependent upon the nature of the Tribunal but on the nature of the
right violated. The Full Bench held, and rightly so, that the nature of
the right in a proceeding under the D.V. Act is purely civil in nature.
Having held so, the Full Bench, nevertheless, found that an
application under Section 482 Cr.P.C. would lie and opined thus:
“53. This would mean that generally the provisions of Criminal
Procedure Code would be applicable, to all proceedings taken under
sections 12 to 23 and also in respect of the offence under section 31 of
the D.V. Act, subject to the exceptions provided for in the Act
including the one under sub-section (2) of section 28. It would then
follow that it is not the nature of the proceeding that would be
determinative of the general applicability of Criminal Procedure
Code to the proceedings referred to in section 28(1) of the D.V. Act,
but the intention of the Parliament as expressed by plain and clear
language of the section, which would have its last word”
In other words, according to the Full Bench, even though the nature
of remedies under the D.V. Act are civil in nature, the principle that a
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nature of the proceeding would determine its character would not
apply in view of the intention of Parliament expressed through Section
28, making the Cr.P.C. applicable.
With all due respect, these observations may not be accurate.
There is a presumption that the legislature is presumed to know the
law when it enacts a piece of legislation. (See CWT v Bangalore
Club, MANU/SC/0675/2020 : (2020) 9 SCC 599 ).
Parliament must, therefore, be presumed to be aware of the law laid
down by the Constitution Bench in S.A.L. Narayan Row (cited supra),
wherein it was held that the true test of the nature of a proceeding
must be ascertained with reference to the character of the right
violated and reliefs sought thereon and not by the nature of the Court
adjudicating such a proceeding.
Section 28 of the D.V. Act does not and cannot displace this principle.
As has already been pointed out, the application of Cr.P.C. to a
proceeding under Section 12, by virtue of Section 28(1), is residuary
in nature. - As a matter of fact, the conclusions of the Full Bench appear to be
contradictory which is evident from the fact that, at paragraph 40, the
Bench agrees that the proceedings under the D.V. Act are
predominantly civil in nature, and it is only when there is a breach
under Section 31 or a failure or refusal by a Protection Officer as
contemplated under Section 33, the proceedings assume the character
of criminality. Having held so, the Full Bench, at paragraph 56, held
that a petition under Section 482 of the Code would lie in view of the
express applicability of the Cr.P.C. under Section 28(1) of the Act
following a Division Bench of the High Court of Gujarat in Suo Motu
v. Ushaben Kishorbhai Mistry, MANU/GJ/1108/2015 : 2016 2 RCR
(Cri) 421. - Again, with all due respect, it must be pointed out that in view of
the law laid down by the Supreme Court in S.A.L. Narayan Row (cited
supra) and Ram Kishan Fauji (cited supra), the nature of the Court or
the procedure followed by such a Court cannot determine the
character of the proceeding before it. The litmus test, in all cases, is
focused on the nature of the right infringed and the relief sought for
the vindication of such a right. This is precisely why the Full Bench of
the Bombay High Court in V.B. D’Monte (cited supra), had ordered a
revision to be listed on its civil side despite the order having been
passed by a Court of Session.
49 . In Ram Kishan Fauji (cited supra), it was sought to be contended
that the Lokayukta is a quasi-judicial body, and an enquiry at its
instance would come within the ambit and scope of civil and not
criminal jurisdiction. Repelling this contention, the Supreme Court
categorically held that the procedure followed by the Lokayukta was
of no consequence in determining the character of the proceeding
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before the Court. The Hon’ble Supreme Court said:
“18. The maze needs to be immediately cleared. In the instant case, we
are really not concerned with the nature of the post held by Lokayukta
or Upa-Lokayukta. We are also not concerned how the
recommendation of the said authorities is to be challenged and what
will be the procedure therefor. As has been held by this Court, neither
the Lokayukta nor Upa-Lokayukta can direct implementation of his
report, but it investigates and after investigation, if it is found that a
public servant has committed a criminal offence, prosecution can be
initiated.”
The position is unambiguously set out in the following passage in Ram
Kishan Fauji, (cited supra) “In the case at hand, the writ petition was
filed under Article 226 of the Constitution for quashing of the
recommendation of the Lokayukta. The said recommendation would
have led to launching of criminal prosecution, and, as the factual
matrix reveals, FIR was registered and criminal investigation was
initiated. The learned Single Judge analysed the report and the
ultimate recommendation of the statutory authority and thought it
seemly to quash the same and after quashing the same, as he found
that FIR had been registered, he annulled it treating the same as a
natural consequence. Thus, the effort of the writ petitioner was to
avoid a criminal investigation and the final order of the writ court is
quashment of the registration of FIR and the subsequent investigation.
In such a situation, to hold that the learned Single Judge, in exercise
of jurisdiction under Article 226 of the Constitution, has passed an
order in a civil proceeding as the order that was challenged was that
of the quasi-judicial authority, that is, the Lokayukta, would be
conceptually fallacious. It is because what matters is the nature of the
proceeding, and that is the litmus test.” - It follows that in view of the law laid down in Narayan Row (cited
supra) and Ram Kishan Fauji (cited supra), that the character of a
proceeding under the D.V. Act, in so far is it relates to the reliefs
under Sections 18 to 23, does not become criminal in character
merely on account of the procedure under the Cr.P.C. adopted by the
Magistrate. In view of the foregoing discussion, the inevitable
conclusion is that a petition to quash an application under Section 12
of the D.V. Act is maintainable only by way of a petition under Article
227 of the Constitution and not under Section 482, Cr.P.C.” - In my view, the submissions advanced by the learned advocates for the
applicants to support the maintainability of the proceeding under Section 482 of
Cr.P.C. relying upon the decision of the Full Bench of this Court in Nandkishor
Vyawahare’s case (supra), need to be appreciated keeping in mind the fact that
the decision of learned Single Judge of Madras High Court in Dr. P.
Pathmanathan’s case has been approved by Hon’ble Apex Court, wherein the
decision of the Full Bench of the Bombay High Court was considered. It would
be necessary to consider the main question involved before Hon’ble Apex Court
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in Kamatchi’s case (supra). In Kamatchi’s case (supra), the respondent had
challenged the proceeding initiated by the appellant under Section 12 of the D.V.
Act by filing an application under Section 482 of the Cr.P.C. The said
application was rejected. The application made by father-in-law and sister-inlaw,
under Section 482 of Cr.P.C. was allowed. Madras High Court had rejected
the contention of the respondent/ husband on merits, however, on the point of
limitation, the application under Section 12 of the D.V. Act was dismissed by
the High Court. The said order was challenged by the wife by filing an appeal
before the Hon’ble Apex Court. Before Hon’ble Apex Court, on behalf of the
wife, two submissions were advanced. First submission was that the limitation is
not provided for filing application under Section 12 of the D.V. Act. The
limitation provided under Section 468 of the Cr.P.C. would be applicable only
for initiation of criminal prosecution under Sections 31 and 33 of the D.V. Act.
The second submission was that the judgments relied upon by the High Court
were distinguishable and for that purpose reliance was placed on the decision of
learned Single Judge of Madras High Court in Dr. P. Pathmanathan’s case
(supra).
Learned advocate for the respondent/husband relied upon the decision in the
case of Sarah Mathew .vs. Institute of Cardio Vascular Diseases [ (2014) 2
SCC 62 ] to substantiate his submission that period of limitation would be one
year and the same has to be reckoned from the date of the application. The
second submission was made by relying upon the decision in Aalat Prasad’s case
(supra). Hon’ble Apex Court, in Kamatchi’s case, has reproduced the said
written submission in paragraph 11. Said paragraph 11 of the Judgment in
Kamatchi’s case needs to be extracted. It reads thus :
“11. In the written submissions, it is also submitted that: –
“This Hon’ble Court in Adalat Prasad v. Rooplal Jindal held that if a
Magistrate takes cognizance of an offence, issues process without
there being any allegation against the accused, or any material
implicating the accused, or in contravention of provisions of Sections
200 and 202, the order of the Magistrate may be vitiated. However,
the relief an aggrieved accused can obtain at that stage is not by
invoking Section 203 of the Code, because the Code does not
contemplate a review of an order.
Hence in the absence of any review power, or inherent power with the
subordinate criminal courts, the remedy lies in invoking Section 482
of the Code.” - It is to be noted that in Dr. P. Pathamanathan’s case, the issue of limitation
was not raised and dealt with. The issue involved in the said case was with
regard to maintainability of proceedings under Section 482 of Cr.P.C for
quashing the proceedings filed under Section 12 of the D.V. Act. In order to
meet this argument advanced on behalf of the appellant/wife relying upon the
decision in Dr. P. Pathmanathan’s case, learned advocate for the respondent/
husband before Hon’ble Apex Court relied upon the decision in Adalat Prasad’s
case and submitted that in absence of review power or inherent power with the
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subordinate criminal courts, the remedy lies in invoking Section 482 of the
Cr.P.C. It is, therefore, necessary to state at this stage that two issues were
involved before the Hon’ble Apex Court. The second issue was with regard to
maintainability of the proceeding under Section 482 of the Cr.P.C. for quashing
the proceedings initiated under Section 12 of the D.V Act. The relevant
observations made by the Hon’ble Apex Court in Kamatchi’s case (supra) needs
to be considered. For the said purpose, it would be profitable to extract
paragraphs 28 to 31 from the said decision. The same reads thus :-
“28. The special features with regard to an application under Section
12 of the Act were noticed by a Single Judge of the High Court in Dr.
P.Padmanathan & Ors. as under:
“19. In the first instance, it is, therefore, necessary to examine the
areas where the D.V. Act or the D.V. Rules have specifically set out
the procedure thereby excluding the operation of Cr.P.C. as
contemplated under Section 28(1) of the Act. This takes us to the D.V.
Rules. At the outset, it may be noticed that a “complaint” as
contemplated under the D.V. Act and the D.V. Rules is not the same as
a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the D.V.
Rules is defined as an allegation made orally or in writing by any
person to a Protection Officer.
On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is
any allegation made orally or in writing to a Magistrate, with a view
to his taking action under the Code, that some person, whether known
or unknown has committed an offence. However, the Magistrate
dealing with an application under Section 12 of the Act is not called
upon to take action for the commission of an offence.
Hence, what is contemplated is not a complaint but an application to
a Magistrate as set out in Rule 6(1) of the D.V. Rules. A complaint
under the D.V. Rules is made only to a Protection Officer as
contemplated under Rule 4(1) of the D.V. Rules. - Rule 6(1) sets out that an application under Section 12 of the Act
shall be as per Form II appended to the Act.
Thus, an application under Section 12 not being a complaint as
defined under Section 2(d) of the Cr.P.C, the procedure for
cognizance set out under Section 190(1)(a) of the Code followed by
the procedure set out in Chapter XV of the Code for taking cognizance
will have no application to a proceeding under the D.V. Act. To
reiterate, Section 190(1)(a) of the Code and the procedure set out in
the subsequent Chapter XV of the Code will apply only in cases of
complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and
not to an application under Section 12 of the Act.” - It is thus clear that the High Court wrongly equated filing of an
application under Section 12 of the Act to lodging of a complaint or
initiation of prosecution. In our considered view, the High Court was
in error in observing that the application under Section 12 of the Act
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ought to have been filed within a period of one year of the alleged acts
of domestic violence. - It is, however, true that as noted by the Protection Officer in his
Domestic Inspection Report dated 2.08.2018, there appears to be a
period of almost 10 years after 16.09.2008, when nothing was alleged
by the appellant against the husband. But that is a matter which will
certainly be considered by the Magistrate after response is received
from the husband and the rival contentions are considered. That is an
exercise which has to be undertaken by the Magistrate after
considering all the factual aspects presented before him, including
whether the allegations constitute a continuing wrong. - Lastly, we deal with the submission based on the decision in
Adalat Prasad. The ratio in that case applies when a Magistrate takes
cognizance of an offence and issues process, in which event instead of
going back to the Magistrate, the remedy lies in filing petition under
Section 482 of the Code. The scope of notice under Section 12 of the
Act is to call for a response from the respondent in terms of the
Statute so that after considering rival submissions, appropriate order
can be issued. Thus, the matter stands on a different footing and the
dictum in Adalat Prasad would not get attracted at a stage when a
notice is issued under Section 12 of the Act. - It is to be noted that paragraph 19 of Dr.P.Pathmanathan’s case has been
considered by the Hon’ble Apex Court in Kamatchi’s case. Hon’ble Apex Court
has held that an application under Section 12 of the D.V. Act cannot be equated
with the lodging of complaint or initiation of the prosecution. Hon’ble Apex
Court has held that the decision in the case of Adalat Prasad (supra) would not
be applicable to substantiate the argument to invoke Section 482 Cr.P.C in D.V.
Act proceeding when a notice is issued under Section 12 of the D.V. Act. The
decision in Adalat Prasad’s case would be applicable when a Magistrate takes
cognizance of the offence and issue process and not in the matter of issuance of
notice under Section 12 of the D.V. Act. The matter of taking cognizance for
issuance of process and matter under Section 12 of the D.V. Act stands on
different footing and therefore, the decision in Adalat Prasad’s case would not
get attracted at the stage when notice is issued under Section 12 of the Act. - The decision in Kamatchi’s case (supra) was considered by the Full Bench of
Madras High Court in the case of Arul Daniel’s case (supra). Similarly, in Arul
Daniel’s case, the decision of the Full Bench of Bombay High Court in
Nandkishor Vyawahare’s case (supra) was considered. The issue involved
before the Full Bench of Madras High Court was as to whether the proceeding
under Section 482 of the Cr.P.C. for quashing the proceeding initiated under
Section 12 of the D.V. Act would be maintainable or not. The Full Bench of
Madras High Court has analyzed the powers and jurisdiction of the Magistrate.
Similarly, the Full Bench has considered whether the Court of Magistrate could
be said to be a Criminal Court as understood by the Cr.P.C. In Arul Daniel’s
case (supra), paragraphs 32 to 40 are relevant on the point under discussion.
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These paragraphs are extracted below.
“32. At this juncture, it is necessary to notice that the word
“jurisdiction” relates to the power of the Court to decide a class or
classes of cases. The import of the expression has been considered by
the Supreme Court in Nusli Neville Wadia v Ivory Properties [ (2020)
6 SCC 557 ], wherein, it was observed as under:
“The word “jurisdiction” is derived from Latin words “juris” and
“dico”, meaning “I speak by the law” and does not relate to rights of
parties as between each other but to the power of the court.
Jurisdiction relates to a class of cases to which a particular case
belongs. Jurisdiction is the authority by which a judicial officer takes
cognizance and decides the cases. It only presupposes the existence of
a duly constituted court having control over subject-matter which
comes within classification limits of the law under which court has
been established. It should have control over the parties’ litigant,
control over the parties’ territory, it may also relate to pecuniary as
well as the nature of the class of cases. Jurisdiction is generally
understood as the authority to decide, render a judgment, inquire into
the facts, to apply the law, and to pronounce a judgment. When there
is the want of general power to act, the court has no jurisdiction.
When the court has the power to inquire into the facts, apply the law,
render binding judgment, and enforce it, the court has jurisdiction.
Judgment within a jurisdiction has to be immune from collateral
attack on the ground of nullity. It has co-relation with the
constitutional and statutory power of tribunal or court to hear and
determine. It means the power or capacity fundamentally to entertain,
hear, and determine.” (emphasis supplied) 33. In view of the above,
the power of the Magistrate to entertain and decide an application
under Section 12 and grant one or more reliefs under the D.V. Act is
an aspect of his jurisdiction. It is settled law that jurisdiction is an
issue that belongs to the realm of substantive law. Procedural law, on
the other hand, prescribes the mode and manner in which such
jurisdiction is to be exercised. A character of the Court is an essential
aspect of its substantive jurisdiction, and would depend on the nature
or subject matter of the case before it. - In V.B. D’Monte v Bandra Borough Municipality [AIR 1950
Bom 397], the question before the Full Bench of Bombay High Court
was whether an application for revision against an order of a
Magistrate made under Section 110 of the Bombay Municipal
Boroughs Act, 1925, lies on the civil or criminal side of the High
Court. Under the scheme of the Act, Magistrates or Benches of
Magistrate were to be designated as appellate authorities under
Section 110 of the Act. The contention raised before the Full Bench
was as follows:
“Now the contention put forward is that inasmuch as the decision is
given by a Magistrate under s. 110 and an appeal from the
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Magistrate’s decision lies to the High Court on its criminal side, the
order of the Magistrate should be revised by the High Court on its
criminal side and not on its civil side.” - Speaking for the Full Bench, Chagla, C.J. repelled the aforesaid
contention observing, inter alia, as under:
“Now it cannot be disputed that the subject matter of the decision of
the Magistrate is a purely civil matter. He is dealing with rates and
taxes. He is not exercising any criminal jurisdiction, nor is he dealing
with any criminal matter. Therefore when the matter comes before us
in revision, it is a matter which is civil in its nature; and we see no
reason why such a matter should be entertained on the criminal side
of the High Court and not on the civil side.
….
…..
…….
The better view seems to be that a criminal Court may be constituted
as a Court designata and civil jurisdiction may be conferred upon that
Court. If a criminal Court exercises that jurisdiction, then it is not
necessarily an inferior criminal Court within the meaning of the
Criminal Procedure Code; and if a right of revision is given from a
decision of such a Court, then that revisional application is civil in its
character and not criminal.” (emphasis supplied) 36. From the
aforesaid, it is evident that where the subject matter for decision
before the Magistrate is purely a civil matter, he cannot be said to be
exercising criminal jurisdiction or be dealing with a criminal matter.
We are in respectful agreement with the aforesaid conclusion of the
learned Chief Justice.
We also find that this conclusion is fortified by the decision of the
Supreme Court in S.A.L. Narayan Row v Ishwarlal Bhagwandas
[(1966) 1 SCR 190], wherein, it was observed as under:
“The character of the proceeding, 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.” (emphasis supplied) - Thus, in our considered opinion, the character of the proceeding,
must be ascertained having regard to the nature of the subject matter
and the reliefs sought. Viewed thus, there can be no two opinions that
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the proceeding before the Magistrate is essentially civil in character.
The Magistrate under the D.V. Act is, to borrow the words of Chagla,
C.J., in V.B. D’Monte, supra, a “Court designata” and not a
“Criminal Court”. Consequently, we cannot agree with the
conclusion of the Division Bench in P. Ganesan, supra, that “the
nature of the procedure adopted would determine the character of the
Tribunal”, for, that would imply that a Criminal Court must be
defined not as one “with jurisdiction over criminal matters”, but as
one which “exercises criminal procedure over certain matters”. To
borrow the words of Sir Henry Maine, that would be secreting a facet
of jurisdiction, which is a matter of substantive law, into the “the
interstices of procedure”. - Since we are agreeing with the opinion of the Bombay High Court
in Jaswant Singhji (supra) that a proceeding under Section 125
Cr.P.C. is not a criminal proceeding, we are required to answer a
seminal doubt, viz., “if a proceeding under Section 125 Cr.P.C. is not
a criminal proceeding, then, how can a revision petition under Section
397 Cr.P.C. or a petition under Section 482 Cr.P.C. be maintained?”
The short answer to this question is that an order made by the
Magistrate under Chapter IX, which envisages a right for
maintenance and provides a remedy thereof, is nonetheless an order
passed “under the Code” (See Sec 482 Cr.P.C). Consequently, an
order passed under Section 125\ Cr.P.C. is revisable under Section
397 Cr.P.C. or the proceeding itself can be challenged in an
appropriate case under Section 482 Cr.P.C. Whereas, an order
passed granting one or more reliefs under the D.V. Act, is not an
order passed under Chapter IX of the Cr.P.C. It remains an order
passed under the D.V. Act which is susceptible to an appeal under
Section 29 of the said Act. There is no appeal from an order under
Chapter IX Cr.P.C, and such order can, nonetheless, be revised under
Section 397 Cr.P.C, since it is an order made under the provisions of
the Code. - We are, therefore, of the considered opinion that in a proceeding
under Chapter IV of the D.V. Act, a Magistrate exercises civil
jurisdiction to grant one or more civil reliefs under Sections 18-23 of
that Act. Consequently, we affirm the view of N. Anand Venkatesh, J.
in Pathmanathan, supra, that a Magistrate exercising jurisdiction
under Section 12 of the D.V. Act, is not a Criminal Court for the
purpose of Chapter IV of the said Act. - As a sequitur, in view of the law laid down by the Supreme Court
in Sujit Kumar Rana, supra, that a petition under Section 482 Cr.P.C.
is maintainable only against the proceedings of a Criminal Court, we
also affirm the view in Pathmanathan, supra, that a petition under
Section 482 Cr.P.C. is not maintainable to challenge a proceeding
under Chapter IV of the D.V. Act.” - The Full Bench of Madras High Court in the above discussion has
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considered the Full Bench decision of the Bombay High Court in V.B.
D’monte .vs. Bandra Borough Municipality (supra). It is to be noted that this
decision of the Full Bench was not cited before the Full Bench of Bombay High
Court in Nandkishor Vyawahare’s case (supra). In this case, Full Bench of
Bombay High Court has held that criminal court may be constituted as a “Court
designata” and civil jurisdiction may be conferred upon that Court. If a criminal
Court exercises that jurisdiction, then it is not necessarily an inferior criminal
Court within the meaning of the Criminal Procedure Code; and if a right of
revision is given from a decision of such a Court, then that revisional application
is civil in its character and not criminal. It is to be noted that this is one of the
reasons recorded by the Full Bench of Madras High Court for coming to the
conclusion that application under Section 482 of Cr.P.C. for quashing the
proceeding initiated under Section 12 of the D. V. Act is not maintainable. - The second and most important reason assigned by the Full Bench of Madras
High Court in Arul Daniel’s case (supra) for taking a view that application under
Section 482 of Cr.P.C. is not maintainable seeking quashment of the proceeding
under Section 12 of the D.V. Act, is by following the decision of the Hon’ble
Apex Court in Kamatchi’s case (supra). Paragraphs 49 and 50 from Arul
Daniel’s case are relevant for this purpose. The same are extracted below :
“49. We also notice that in many cases, such as the cases on hand, a
challenge is straightaway made primarily by in-laws and others
contending that the application arraying them as a respondent is an
abuse of process. In such cases, upon receipt of notice from the
Magistrate Court, it would be open to the respondents to approach the
Magistrate and file their responses or seek deletion of their names by
way of an appropriate application. In Pathmanathan, supra, the
learned single judge has observed thus:
“In the first instance, it is, therefore, necessary to examine the
areas where the D.V. Act or the D.V. Rules have specifically set
out the procedure thereby excluding the operation of Cr.P.C. as
contemplated under Section 28(1) of the Act. This takes us to the
D.V. Rules. At the outset, it may be noticed that a “complaint” as
contemplated under the D.V. Act and the D.V. Rules is not the
same as a “complaint” under Cr.P.C. A complaint under Rule 2
(b) of the D.V. Rules is defined as an allegation made orally or in
writing by any person to a Protection Officer. On the other hand,
a complaint, under Section 2(d) of the Cr.P.C. is any allegation
made orally or in writing to a Magistrate, with a view to his
taking action under the Code, that some person, whether known or
unknown has committed an offence.
However, the Magistrate dealing with an application under
Section 12 of the Act is not called upon to take action for the
commission of an offence. Hence, what is contemplated is not a
complaint but an application to a Magistrate as set out in Rule 6
(1) of the D.V. Rules. A complaint under the D.V. Rules is made
only to a Protection Officer as contemplated under Rule 4(1) of
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the D.V. Rules. - Rule 6(1) sets out that an application under Section 12 of the
Act shall be as per Form II appended to the Act. Thus, an
application under Section 12 not being a complaint as defined
under Section 2(d) of the Cr.P.C., the procedure for cognizance
set out under Section 190(1)(a) of the Code followed by the
procedure set out in Chapter XV of the Code for taking
cognizance will have no application to a proceeding under the
D.V. Act. To reiterate, Section 190(1)(a) of the Code and the
procedure set out in the subsequent Chapter XV of the Code will
apply only in cases of complaints, under Section 2(d) of Cr.P.C.,
given to a Magistrate and not to an application under Section 12
of the Act.” - The aforesaid observations have been quoted by the Supreme
Court in Kamatchi, supra. It was also contended before the Supreme
Court in Kamatchi, supra, that in view of the decision in Adalat
Prasad v Rooplal Jindal29, once notice was issued by the Magistrate,
the only remedy for a respondent in a D.V. case was to challenge the
said proceedings under Section 482 Cr.P.C. Rejecting this
submission, the Supreme Court held as under:
“Lastly, we deal with the submission based on the decision in
Adalat Prasad. The ratio in that case applies when a Magistrate
takes cognizance of an offence and issues process, in which event
instead of going back to the Magistrate, the remedy lies in filing
petition under Section 482 of the Code. The scope of notice under
Section 12 of the Act is to call for a response from the respondent
in terms of the Statute so that after considering rival submissions,
appropriate order can be issued. Thus, the matter stands on a
different footing and the dictum in Adalat Prasad would not get
attracted at a stage when a notice is issued under Section 12 of
the Act.” - The Full Bench of Madras High Court has noted that Hon’ble Apex Court in
Kamatchi’s case (supra) has considered the decision of learned Single Bench of
Madras High Court in Dr. P. Pathmanathan’s case (supra). The Full Bench of
Madras High Court relying upon the decision in Kamatchi’s case, has held that
the petition under Section 482 of Cr.P.C. challenging the proceeding initiated
under Section 12 of the DV. Act, is not maintainable. In my view, therefore, it
cannot be said that Hon’ble Apex Court in Kamatchi’s case, has not considered
the issue of maintainability of the proceeding under Section 482 of the Cr.P.C.
The Full Bench of Madras High Court has heavily relied upon the decision in
Kamatchi’s case (supra) to conclude that petition under Section 482 of Cr.P.C.
challenging the proceeding under Section 12 of the D.V. Act, is not
maintainable. - I am conscious of the fact that the Full Bench decision of Bombay High
Court is binding on this Court. The question involved in this case is whether
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reliance can be placed on the decision of the Full Bench of Bombay High Court
in view of the law laid down by the Hon’ble Apex Court in Kamatchi’s case
(supra). The Full Bench of Madras High Court, relying upon the decision in
Kamatchi’s case, has held that Hon’ble Apex Court with certainty has stated that
the proceeding under Section 12 of the D.V. Act cannot be equated with the
complaint filed under the Code of Criminal Procedure and therefore, the
proceeding under Section 482 of Cr.P.C. challenging the proceeding under
Section 12 of the D.V. Act, is not maintainable. In my view, the decision of
Hon’ble Apex Court in Kamatchi’s case has now settled the legal position on
this issue. It is binding on this Court. In this background, reliance placed by the
learned advocates for the applicants on the Full Bench of Bombay High Court in
Nandkishor Vyawahare’s case (supra) needs appreciation. In my view, in the
backdrop of the law laid down by Hon’ble Apex Court in Kamatchi’s case
(supra), the submissions advanced by the learned advocates for the applicants
relying upon the Full Bench decision of Bombay High Court cannot be
sustained. It is to be noted that paragraph 53 from the decision of the Full Bench
of Bombay High Court was reproduced in paragraph 46 of the decision of the
learned Single Judge of Madras High Court in Dr. P. Pathmanathan’s case
(supra). It needs to be stated that in paragraph 46, a mistake appears to have
been committed while stating the names of the parties. The names of the parties
have been stated as Prabhakar Mohite .vs. State of Maharashtra. In fact, Full
Bench decision of Bombay High Court in Nandkishor Pralhad Vyawahare .vs.
Mangala, was relied upon by the learned Single Judge of Madras High Court.
Part of paragraph 53 of the decision of Full Bench of this Court in Nandkishor
Vyawahare’s case (supra) was reproduced in paragraph 46 by the learned Single
Judge of the Madras High Court. It is, therefore, apparent that Hon’ble Apex
Court while approving the decision in Dr.P.Pathmanathan’s case, has taken note
of the decision of the Full Bench of Bombay High Court in the case of
Nandkishor Vyawahare (supra). It is true that no specific observation has been
made by the Hon’ble Apex Court, however the approval of decision in the case
of Dr. P. Pathmanathan’s case (supra) fortifies the submissions advanced by the
learned advocates for the non-applicants that the issue was squarely dealt with
by the Hon’ble Apex Court. - In my view, therefore, the submissions advanced by the learned advocates
for the applicants relying upon the decision of the Full Bench of Bombay High
Court in Nandkishor Vyawahare’s case (supra) cannot be sustained. Learned
advocate Mr. Sirpurkar submitted that the decision of the Full Bench decision is
binding on this Court, but if this Court is of the opinion that the conflict in the
decisions of the Full Bench of Bombay High Court and Full bench of Madras
High Court needs to be resolved, then the matter be referred to the bench of
larger strength. In this context it needs to be stated that such a reference would
be necessitated if this Court opines that the view of the Full Bench of Madras
High Court is the correct view and the view expressed by the Full Bench of
Bombay High Court is not the correct view. Here in this case, the question of
making reference will not arise because on the same point there is decision of
the Hon’ble Apex Court in Kamatchi’s case (supra) wherein it has been held
relying upon the decision of Adalat Prasad’s case (supra) that the contention of
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maintainability of proceeding under Section 482 of Cr.P.C. challenging
proceeding under section 12 of the D.V. Act, cannot be entertained. Therefore,
in my view, in this case there is no need of reference to the larger bench. The
issue can be resolved and answered on the basis of the decision of Hon’ble Apex
Court in Kamatchi’s case (supra) and acceptance of the said view of Hon’ble
Apex Court with necessary elaboration by the Full Bench of the Madras High
Court in Arul Daniel’s case (supra). - In the facts and circumstances, I conclude that the applications made under
Section 482 of Cr.P.C. challenging the proceeding under Section 12 of the D.V.
Act, are not maintainable. The applications, therefore, can be dismissed.
However, instead of dismissing the applications, it would be appropriate to give
an option to the parties to withdraw the same with liberty to take recourse to the
available appropriate remedy. If the parties do not avail such liberty, then the
applications can be ordered to be dismissed. - Accordingly, it is ordered that the parties are free to withdraw the
applications with liberty to take recourse to the appropriate remedy within eight
days from the date of this order. If the applications are not withdrawn with the
liberty as above, then the applications shall stand dismissed being not
maintainable. - Before parting with the judgment, I place on record my appreciation for the
assistance rendered by learned advocates Mr. S.V. Sirpurkar, Mr. I.S. Charlewar,
Mr. Parwez Mirza and Ms. Ayushi Dangre.for any consultancy or our legal service please click here