DOMESTIC VIOLENEC PROCEEDINGS – NATURE :- Conflict of Judgments on the Jurisdiction of the High Court to Quash – whether under Section 482 Cr.P.C., or under Article 227 of the Constitution of India ?

DOMESTIC VIOLENEC PROCEEDINGS – NATURE :-
Conflict of Judgments on the Jurisdiction of the High Court to Quash – whether under Section 482 Cr.P.C., or under Article 227 of the Constitution of India ?

A. Judgments holding that Section 482 Petition is maintainable: –
(i) Baiju and Anotherv. Latha and Another,
2011 SCC OnLine Ker 4156 : (2011) 3 KLJ 331 : (2011) 3 KLT 109 : 2011 Cri LJ 4536 : (2011) 3 DMC 234 at page 331
THOMAS P. JOSEPH, J.:— Is the court of Magistrate while discharging functions under the Protection of Women from Domestic Violence Act (for short, “the Act”) a criminal court inferior to the Court of Sessions and the High Court?
2. Is the judgment of Court of Sessions in an appeal filed under Sec. 29 of the Act amenable to the revisional power of the High Court under Secs. 397(1) and 401 of the Code of Criminal Procedure (for short, “the Code”)?
3. These questions are required to be answered in these petitions filed under Sec. 482 of the Code by the respondents in M.C. No. 8 of 2009 of the court of learned Judicial First Class Magistrate-n, Thamarassery and M.C. No. 96 of 2007 of the court of learned Judicial First Class Magistrate, Harippad. In Crl.M.C. No. 969 of 2011 petitioners suffered an order under Sec. 12 of the Protection of Women from Domestic Violence Act (for short, “the Act”). That order was challenged in appeal before learned Additional Sessions Judge-II, Kozhikode in Crl. Appeal No. 29 of 2010. The order was confirmed. Judgment of learned Additional Sessions Judge is under challenge in Crl.M.C. No. 969 of 2011.
4. In Crl.M.C. No. 1705 of 2011 petitioner suffered an order under Section 12 of the Act and that was challenged before learned Additional Sessions Judge-I, Mavelikkara in Crl.Appeal No. 244 of 2010. The Appeal was dismissed. Judgment of learned Additional Sessions Judge is under challenge in Crl.M.C. No. 1705 of 2011.
5. Learned counsel for petitioners contend that proceeding before the Magistrate under the provisions of the Act except the provisions under Secs. 31 and 33 of the Act which provide for punishment are civil in nature and that the Magistrate is to exercise power for providing maintenance, recovery of property, providing residence order and such other reliefs which are in the nature of a civil proceeding. In the circumstances, the Magistrate exercising power under the Act cannot be treated as a criminal court inferior to the Court of Sessions and the High Court. Hence it is argued that judgment of the Sessions Court corifirming order of the Magistrate could be challenged in this Court only in exercise of its extraordinary jurisdiction under Sec. 482 of the Code.
6. Learned Public Prosecutor contended that as per the scheme of the Act though the Magistrate is required to exercise functions which are of a civil nature, character of the court does not change; it continues to be a court of the Magistrate which is a criminal court inferior to the Court of Sessions and the High Court. It is also contended that the very fact that Sec. 29 of the Act provides for an appeal to the ‘Court of Sessions’ would indicate that the Court of Magistrate while exercising power under the Act acts as a court inferior to the Court of Sessions. Further argument is that at any rate, what is under challenge in these proceedings are judgments of Court of Sessions which is a criminal court inferior to the High Court for the purpose of Secs. 397(1) and 401 of the Code. Hence the proper remedy available to the petitioners is to challenge judgment of the Court of Sessions invoking the revisional power of this Court under Secs. 397(1) and 401 of the Code.
7. It is necessary to refer to the relevant provisions of the Act to decide the issue. In the preamble it is stated that the Act is to provide more effective protection to the rights of women guaranteed under the Constitution who are victims of any kind occurring within the family and for matters connected therewith or incidental thereto. Sec. 2(i) of the Act defines ‘Magistrate’ as meaning a Judicial Officer of First Class or as the case may be the Metropolitan Magistrate exercising jurisdiction under the Code 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. Chapter IV of the Act deals with the procedure for obtaining reliefs. Sec. 12 of the Act states that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act. Sec. 18 provides for grant of protection orders by the Magistrate in the manner provided therein. Sec. 19 confers power on the Magistrate to pass residence orders while disposing of an application under Sub-sec. (1) of Sec. 12. Sec. 20 deals with the power of Magistrate to grant monitory reliefs as referred to therein. Sec. 21 deals with custody orders that may be passed by the Magistrate. Sec. 23 confers power on the Magistrate under certain circumstances to pass interim orders as the Magistrate deems just and proper. Sec. 27 states that the court of Judicial Magistrate of First Class or the Metropolitan Magistrate as the case may be within the local limits of which the person aggrieved permanently or temporarily resides or carries on business or is employed, the respondent resides or carries on business or is employed or the cause of action has arisen, shall be the ‘competent court’ to grant a protection order and other other orders under the Act and to try offences under the Act. Sec. 28(1) states that save as otherwise provided in the Act all proceeding under Secs. 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31 shall be governed by the provisions of the Code. But Sub-sec. (2) of Sec. 28 states that nothing in Sub-sec. (1) shall prevent the court from laying down its own procedure for disposal of an application under Sec. 12 or under Sub-sec. (2) of Sec. 23 of the Act. Sec. 29 of the Act provides for an appeal ‘to the Court of Sessions’ within 30 days from the date on which the order made by the Magistrate is served pn the aggrieved person or the respondent as the case may be whichever is later. Secs. 31 and 33 of the Act are the penalizing provisions and, Secs. 32 and 34 deal with the power of learned Magistrate to take cognizance of such offences.
8. The argument of learned counsel for petitioners is that it is the ‘Magistrate’ who is empowered under the Act to exercise the duties and functions mentioned therein which are of a civil nature and hence it cannot be said that the Magistrate while acting under the provisions of the Act acts as an inferior criminal court for the purpose of Secs. 397(1) and 401 of the Code. Learned counsel have placed reliance on the decisions in Mt. Mithan v. Municipal Board of Orai and State of U.P., AIR 1956 All. 351, Dargah Committee, Ajmer v. State of Rajasthan, AIR 1962 SC 574, Correya v. STO, 1970 KLJ 957 and Mammoo v. State of Kerala, 1979 KLT 801. Learned counsel, in fairness has also brought to my notice the decisions in Satyabhama v. Ramachandran, 1997 (2) KLT 503, Peter v. Sara, 2006 (4) KLT 219 and Preceline George (Dr.) @ Antony Preceline George v. State of Kerala, 2010 (1) KLT 454.
9. In Mt. Mithan v. Municipal Board of Oral and State of U.P. (supra) question considered was whether a Magistrate who passes an order under Sec. 247(1) or Sec. 310(2) of the Municipalities Act does so as a criminal court and whether such court is a inferior court as contemplated under Sec. 435 of the old Code (corresponding to Sec. 401 of the present Code). The Division Bench of the Allahabad High Court held that though a First Class Magistrate is a crminal court, a proceeding held by that court is a proceeding before an ‘inferior criminal court’ within the meaning of Sec. 435 (of the old Code) and its record can be called for and examined by the High Court but a proceeding held by that court in exercise of any special jurisdiction conferred by any other law is not a proceeding in the inferior criminal court. In paragraph 6 learned Judges held that revisional jurisdiction can be exercised only over an inferior criminal court, the explanation to Sec. 435 (of the old Code) makes it clear that all Magistrates are to be deemed to be inferior to the Sessions Judge for the purpose and that they are inferior to the High Court. But the gradation of the criminal court is only for the purpose of jurisdiction conferred by the Code. It is held that a Magistrate of the Second Class when trying a person for an offence cannot be compared with a First Class Magistrate exercising jurisdiction under Sec. 247(1) of the Municipalities Act and cannot be said to be a lower or inferior court. It is also held that it is a mere accident that the authority on which the special jurisdiction is conferred is a criminal court. In that view of the matter it was held by the Division Bench that when a court of Magistrate exercises power under Sec. 247(1) of the Municipalities Act it is not acting as a criminal court inferior to the Court of Sessions or the High Court for the purpose of exercise of revisional power under Sec. 435 of the old Code.
10. In Dargah Committee, Ajmer v. State of Rajasthan (supra), it was held that the Magistrate who entertains an application under Sec. 234 of the Municipalities Regulation Act, 1925 is not an inferior criminal court. In paragraph 6, learned Judges observed that it is difficult to hold that the Magistrate who entertains the application is an inferior criminal court. The claim made before him is for recovery of tax and the order prayed for is for the recovery of tax by distress and sale of movable property of the urged in support of the liberal construction of Sec. 234 turns out to be fallacious defaulter. If at all that would at best be a proceeding of a civil nature and not criminal. Learned Judges took the view that the Magistrate who entertains the application under Sec. 234 of the Municipalities Regulation, 1925 is not a inferior criminal court.
11. This Court considered the power of the Magistrate to take proceeding for recovery of tax under the provisions of the Kerala General Sales Tax Act, 1963 in Correya v. STO (supra). There, it was held that when there is no provision in the said Act dealing with recovery of tax by the Magistrate in any particular form he is bound to follow the provisions of the Act itself and not the provisions of the Code and hence Secs. 435, 436, 438 and 439 of the old Code cannot be resorted to for interfering with an order passed by tie Magistrate under Sec. 23(2) of the said Act.
12. In Mammoo v. State of Kerala (supra) the Full Bench of this Court was dealing with the question whether an order passed by the District Magistrate under Sec. 16(1) of the Indian Telegraph Act is revisable under Sec. 397 of the Code. The Full Bench answered the question in negative. In paragraph 8 it is pointed out that Sec. 397(1) of the Code confers revisional power on the High Court and the Sessions Judge. Sessions Judges could therefore seek to revise proceedings of the inferior criminal court. The Executive Magistrate constituted under Sec. 6 of the Code is a court inferior to the Sessions Judge. The explanation to Sec. 397 of the Code provides that all Magistrates whether executive or judicial shall be deemed to be inferior to the Sessions Judge for the purpose of Sec. 397(1) as also Sec. 398 of the Code. The Full Bench held that the term ‘criminal court’ is not defined in the Code and hence the court has to examine whether the District Magistrate acting under provisions of the Telegraph Act could be deemed to be a criminal court. Answering that question in negative, the Full Bench held that order of the District Magistrate under Sec. 16(1) of the Indian Telegraph Act is not revisable under Sec. 397 or under Sec. 401 of the Code.
13. In Preceline George (Dr.) @ Antony Preceline George v. State of Kerala (supra), this Court referring to Secs. 12 and 23 of the Act held that reliefs provided under the said provisions are of a civil nature.
14. Another Full Bench of this Court in Satyabhama v. Ramachandran (supra) considered whether a Family Court which passed an order under Sec. 7(2)(a) of the Family Courts Act is a criminal court for the purpose of exercise of revisional jurisdiction under Sec. 397 of the Code. The Full Bench held that while disposing the application filed under Sec. 125 of the Code in exercise of its jurisdiction under Sec. 7(2)(a), the Family Court is acting as a criminal court and not a civil court.
15. A Division Bench of the Allahabad High Court in Saman Ismail v. Rafiq Ahmad (2002 Cri.L.J. 3648) considered the question whether an order passed by the Magistrate under Sec. 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is revisable under Sec. 397(1) of the Code. The Division Bench took the view that the order is revisable under Sec. 397(1) of the Code. Section 2(c) of the said Act defines ‘Magistrate’ as a Magistrate of First Class exercising jurisdiction under the Code in the area where the divorced woman resides. The said Act does not say that the Magistrate has to follow the procedure laid down in the Code. Nor does the said Act provide for any remedy under Sec. 397 of the Code against the order of the Magistrate. In view of the definition of “Magistrate” under Sec. 2(c) of the said Act, the Allahabad High Court in the decision referred supra held that the order of the Magistrate under the said Act is revisable under Sec. 397(1) of the Code.
16. No doubt, the reliefs which the Magistrate is required and authorised to grant under certain provisions of the Act are of a civil nature. But, it cannot be said that the Magistrate while exercising those functions is not acting as a aiminal court. The Magistrate while exercising power under the Act acts as a criminal court, though the proceeding, or the nature of relief that may be granted under certain provisions are of a civil nature. Jurisdiction is conferred under the Act on the ‘Magistrate’ and the expression ‘Magistrate’ is defined in Sec. 2(i) of the Act as meaning the Judicial Magistrate of first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code 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. It is also apposite to refer to Sec. 28 of the Act which states that except as otherwise provided in the Act, all proceedings under Secs. 12, 18, 19, 20, 21, 22 and 23 and offence under Sec. 31 of the Act are to be governed by the provisions of the Code. Even as regards proceedings other than mentioned above, I do not find anything in the Act which excludes the procedure laid down in the Code. Atleast for proceedings under Secs. 12, 18 to 23 and 31 of the Act the procedure before learned Magistrate is governed by the provisions of the Code. Sec. 27 of the Act confers jurisdiction on the Court of Judicial Magistrate of the First Class or the Metropolitan Magistrate as the case may be and such court is also empowered to try offences under the Act. Sec. 31 provides that a breach of the protection order, or of an interim protection order is an offence and is triable by the Magistrate. Sec. 33 provides for punishment of the Protection Officer in certain circumstances. These provisions also indicate that the court of Magistrate or Metropolitan Magistrate acts as a criminal court while discharging functions under the Act though some of the reliefs it could grant under the Act are of a civil nature. This was not the situation in Mt. Mithan v. Municipal Board of Orai and State of U.P. (supra) or the other decisions which learned counsel for petitioners have relied in support of their contentions. Sec. 29 of the Act provides that from any order that the Magistrate may pass, an appeal shall lie to the ‘Court of Sessions’. It is relevant to note that the Act does not say what procedure the Court of Sessions is to follow while entertaining and hearing an appeal preferred under Sec. 29 of the Act. The provisions in the Code regarding admission, hearing and disposal of the appeals must apply to an appeal preferred to the Court of Sessions under Sec. 29 of the Act. Under Sec. 29, appeal lies to the ‘Court of Sessions’ and not to the Sessions Judge. An appeal is provided to the Court of Sessions under Sec. 29 since the court of the Magistrate whose order is under challenge is a criminal court inferior to the Court of Sessions. I therefore hold that the Magistrate exercising functions under the Act acts as a criminal court inferior to the Court of Sessions and the High Court. The next question is whether the judgment of the Court of Sessions in an appeal under Sec. 29 of the Act is amenable to the revisional jurisdiction of the High Court under Secs. 397(1) and 401 of the Code. I stated 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 Sessions is subject to challenge before any other court. Under Sec. 397(1) of the Code, High Court may call for and examine the records of any proceeding before any inferior criminal court. A Court of Sessions 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 proper or whether the proceedings of such inferior court is regular. The object of conferring 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 some injury in the due maintenance of law and order, or on the other hand in some undeserved 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 or proceeding of such inferior court is legal, correct or proper. The Allahabad High Court in Shafaat Ahmad v. Smt. Fahmida Sardar, AIR 1990 All. 182 considered whether an order under Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act is revisable under Sec. 397(1) of the Code. The said Court held:
“The fact that it has not been said in the Act that the order under S. 3 is revisable, is of no consequence. Aprovision need not be made in every Act and it is sufficient if it is provided in one Act. The Act provides that the order is to be passed by the Magistrate and the Criminal RC. provides that the order of the Magistrate can be revised by the High Court. The Act does not exclude the application of the Criminal P.C. So Criminal P.C. has to be given effect and the order passed by the Magistrate under Sec. 3 of the Act becomes revisable in view of the provisions in the Criminal P.C.”
17. Judgment of the Court of Sessions in an appeal though preferred under Sec. 29 of the Act being of an inferior criminal court, is revisable by the High Court in exercise of its power under Secs. 397(1) and 401 of the Code. Petitioners have to take recourse to that remedy. In the circumstances, I am not inclined to exercise the extraordinary jurisdiction conferred on this Court under Sec. 482 of the Code.
18. Resultantly these Criminal Miscellaneous Cases are dismissed without prejudice to petitioners challenging the judgments of appellate courts in revision as provided under law. The original documents produced by petitioners shall be returned to the counsel on request.

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(ii) Masood Khan Vs. Smti. Millie Hazarika,

High Court Of Meghalaya At Shillong
Crl.Petn. No. 1 of 2021

Date of Decision: 04.03.2021
Coram: Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance: For the Petitioner/Appellant(s) : Ms. S. Sarma, Adv.
For the Respondent(s) : Mr. S. Sen, Adv.
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication in press: Yes/No
1. Proceedings in C.R. Case No 204 (S) of 2020 between the parties herein with the Respondent No. 2 (The Respondent No. 1, State of Meghalaya has since been struck of from these proceedings vide Order dated 18.01.2021) as the Aggrieved Person and the Petitioner herein as the Respondent, which is an application under Section 12 of the Protection of Women from Domestic Violence, Act, 2005 (hereinafter referred to the DV Act, 2005) pending before the Court of the Learned Magistrate, Shillong is under question in this instant petition filed by the Petitioner/Respondent under Section 482 of the Code of Criminal Procedure, 1973.
2. The background of the dispute lies in the fact that the Petitioner herein and the Respondent No. 2 were married on 09.10.2000 in Dibrugarh, Assam, and thereafter lived together as husband and wife at their matrimonial home at Dibrugarh.
3. From the facts and circumstances as revealed from this petition, it appears that differences and misunderstanding have cropped up in the relationship between the two to the extent that, when the Respondent No. 2 sometime in September 2019, went on a tour to the United Kingdom after staying for a few days at Mumbai for the birth of the child of her sister and on return to Mumbai on 11.01.2020, never came back to her matrimonial home at Dibrugarh.
4. On 23.09.2020, the Respondent No. 2 had issued a legal notice upon the Petitioner containing Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 certain allegations with threat of initiation of criminal proceedings, to which the Petitioner in his reply dated 16.10.2020 has refuted such allegations and has expressed his desire to continue his marital relationship with her.
5. The Petitioner has also filed an application for restitution of conjugal rights on 15.12.2020 in the Court of the Principal Judge, Family Court at Kamrup, Guwahati being numbered as F.C Civil Case No. 732/2020 (Masood Khan v. Millie Hazarika). However, a few days later on or about 16.12.2020 the Respondent No. 2 filed a Divorce case being Mat (Divorce) Case No. 15(H)2020 (Smti Millie Hazarika v. Shri Masood Khan) before the Court of the District Judge, Shillong
6. The Petitioner has also filed a suit for partition on 17.12.2020 being T.S No. 16 (H) 2020 (Masood Khan v. Millie Hazarika) in the Court of the learned Assistant District Judge, East Khasi Hills, Shillong.
7. On 22.12.2020 the Respondent No. 2, has filed a petition under the provisions of the Protection of Women from Domestic Violence Act, 2005 (D.V Act, 2005)in the Court of the Chief Judicial Magistrate, East Khasi Hills, Shillong numbered as C.R Case No. 204 (S) of 2020 against the Petitioner herein. 8. The said domestic violence case appears to have been endorsed to the Court of the learned Judicial Magistrate (Smti D.M.K.S. Shadap) who vide order dated 06.01.2021 in C.R Case No. 204 (S) of 2020 has passed an order granting exparte interim protection u/s 18 of the DV Act, 2005 inter alia, prohibiting the Petitioner herein/accused from the following:
i) Committing any act of Domestic Violence.
ii) Aiding or abetting in the commission of the acts of domestic violence.
iii) Attempting to communicate in any form whatsoever with the aggrieved person including personal, oral or written or electronic or telephonic contact.
iv) Alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent including any other property held either jointly by the parties or separately by them without the leave of the court.
v) Causing violence to the family members, dependents, other relatives of the aggrieved person or any person who gives the aggrieved person assistance from domestic violence.
9. As stated above, the Petitioner being aggrieved with the order dated 06.01.2021, has preferred this instant petition under Section 482 Cr.P.C with a prayer to quash the proceedings of the said C.R Case No. 204 (S) of 2020. Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021
10. The Respondent No. 2 has accordingly entered appearance through the learned counsel, Mr. S. Sen who at the outset, has challenged the maintainability of this instant application under Section 482 Cr.P.C.
11. It may be mentioned that this Court vide Order dated 18.01.2021 in Crl. M.C. No 1 of 2021 has suspended the operation of paragraph (iv) of the order dated 06.01.2021 wherein the learned Magistrate had imposed a restraint upon the Respondent/Petitioner herein from operating his bank account including any property owned singly by him or jointly or separately by the parties to the lis, until further orders.
12. Accordingly, this Court at the first instance would first deal with the issue of maintainability and depending on the outcome thereof would decide this application finally.
13. Ms. S. Sarma, learned counsel for the Petitioner has submitted that this application under Section 482 Cr.P.C is directed against the impugned Order taking cognizance dated 06.01.2021 passed by the learned Judicial Magistrate First Class, Shillong.
14. Maintaining that the proceedings in question are governed by the procedure under the Code of Criminal Procedure, Section 28 of the DV Act, 2005 was referred to in this connection to submit that under the said section, it has been provided that all proceedings under Sections 12, 18, 19, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure and for this, a man has to stand trial.
15. It was also submitted that even assuming that Section 482 Cr.P.C is not applicable, this petition can easily be transformed into an application under Article 226 or 227 as label of a petition is immaterial for the High Court to examine the case in exercise of its inherent power as can be seen from the case of Madhu Limaye v. The State of Maharashtra: (1977) 4 SCC 551 towards the last part of paragraph 10 wherein, it was held that
“……The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.”
16. Yet again, in the case of Pepsi Foods Ltd. & Anr v. Special Judicial Magistrate & Ors: (1998) 5 SCC 749, the Hon’ble Supreme Court at paragraphs 12 & 13 has observed that:
“12. The Code provides the procedure as to how a complaint can be filed and how the court will proceed in the matter. (The words “court” and “magistrate” are synonyms here.) Since for an offence under the Act imprisonment for a term exceeds two years it would be a case tried as warrant case. One if the modes by which a court can take cognizance of an offence is on filing of a complaint containing facts which constitutes such offence. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate (Sections 190 and 200 of the Code). If in the opinion Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a warrant case, he may issue a warrant, or, if he thinks fit, summons for causing the accused to be brought or to appear before him on a date fixed by him [sub-section (1) of Section 204]. Whenever a Magistrate issues a summons, he may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear through his pleader [sub- section (1) of Section 205]. In the present case though it was a warrant case the first respondent issued summons but he did not dispense with personal attendance of the accused. Chapter XIX- B of the Code provides for trial of warrant cases instituted on a complaint. We may note Sections 244 and 245 falling under this Chapter: “244. Evidence for prosecution. –
(1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. 245.
When accused shall be discharged. –
(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
” 13. Section 246 and other sections provide for the procedure where the accused is not discharged and they are not relevant for our purpose. Section 482 of the Code saves inherent powers of the High Court and this section is as under: “482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
17. Reference is also made to the judgment of the Hon’ble Supreme Court in the case of Rajesh Sharma & Ors v. State of Uttar Pradesh & Anr: (2018) 10 SCC 472 and more particularly paragraph 16 which reads as under:
“16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable, Sahara India Real Estate Corpn. Ltd. V. SEBI, (2012) 10 SCC 603. Just and fair procedure being part of Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 fundamental right to life, State of Punjab v. Dalbir Singh, (2012) 3 SCC 346; interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The Court has incidental power to quash even a non compoundable case of private nature, if continuing the proceedings is found to be oppressive, Gian Singh v. State of Punjab, (2012) 10 SCC 303. While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.”
18. Ms. Sarma has gone on to submit that the petition filed by the Respondent No. 2 under the provisions of the DV Act, 2005 was;
18.1 Firstly, instituted as a counterblast to the application of the Petitioner herein for restitution of conjugal rights. Relevant citations referred to by the learned counsel in this regard are:
i) Suresh Kumar Goyal & Ors v. State of Uttar Pradesh: (2019) 14 SCC 318 at paragraph 13
ii) Anupriya Pal & Ors v. State of Uttar Pradesh & Anr: (2019) 14 SCC 643 at paragraph 8
iii) Eicher Tractor Limited & Ors v. Harihar Singh & Anr: (2008) 16 SCC 763 at paragraph 14
18.2 Secondly, that vagueness pervades the entire complaint, even to the extent that the Respondent No 2/Petitioner has failed to give her complete residential address in the complaint.
18.3 Thirdly, that not one instance of abuse was cited in the said complaint and the same is bereft of any basis and the allegations made against the Petitioner are absurd. The case of M.N. Ojha & Ors v. Alok Kumar Srivastav & Anr: (2009) 9 SCC 682 at paragraph 30 was also relied upon by the learned counsel for the Petitioner in this regard. “30. Interference by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.” Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021
18.4. Fourthly, that on economic abuse, it is seen that all the paragraphs in the said complaint beginning from paragraph 2.2 to the last has belied her claim that she was having no substantial income, except for a meagre sum of 15,000/- she received as rent from her Guwahati apartment, when in fact, the same is in her name and must be valued at more than a crore. Further, the Respondent No. 2 has also given a list of eight (8) bank accounts, which by a rough estimate must be about half a crore, besides this, it is admitted that she has in her account at Axis Bank, Guwahati a balance of 18,98,751/-.
19. The use of the words ‘taking cognizance’ and ‘accused person’ in the impugned order was also stressed upon by the learned counsel for the Petitioner to say that for taking cognizance of a matter, application of mind is a sine qua non which the learned Magistrate has failed to exercise. Paragraph 48 of the case of Sunil Bharti Mittal v. Central Bureau of Investigation: (2015) 4 SCC 609 was referred to in this regard, wherein the Apex Court has held that:
“48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.”
20. Submitting that the said proceedings initiated by the Respondent No. 2 in the said DV proceedings are vexatious qua the Petitioner herein, the case of Ravinder Singh v. Sukhbir Singh & Ors: (2013) 9 SCC 245 at paragraph 24 was cited to plead that it is the paramount duty of the court to protect innocent person. “24. The word “vexatious” means “harassment by the process of law”, “lacking justification” or with “intention to harass”. It signifies an action not having sufficient grounds, and which therefore, only seeks to annoy the adversary. The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceeding may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. Such proceedings are different from those that involve ordinary and proper use of the process of the court.”
21. Finally, the learned counsel for the Petitioner has submitted that this instant application under Section 482 Cr.P.C. is maintainable, inasmuch as, the specific provision of Section 28 of the DV Act, 2005 has clearly provided that the procedure for proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 are governed by the provisions of the Code of Criminal Procedure and the application of the Respondent No. 2 before the learned Magistrate is one under Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 Sections 12, 18, 19, 20, 21, 22 and 23 of the DV Act. Reliance in this regard was placed in the case of Satish Chander Ahuja v. Sneha Ahuja: (2021) 1 SCC 414 particularly at paragraphs 138 and 139. The same are reproduced herein below:
“138. The proceedings under the DV Act, 2005 are proceedings which are to be governed by the Code of Criminal Procedure, 1973. 139. The procedure to the followed by the Magistrate is provided under Section 28 of the DV Act and as per Section 28 of the DV 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. Even sub- section (2) of Section 28 provides that the Magistrate can lay down his own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. However, for other proceedings, the procedure is to be followed as per the provisions of the Code of Criminal Procedure, 1973. The procedure to be followed under Section 125 shall be as per Section 126 CrPC which includes permitting the parties to lead evidence. Therefore, before passing any orders under the DV Act, the parties may be permitted to lead evidence. However, before any order is passed under Section 12, the Magistrate shall take into consideration any domestic incident report received by him from the protection officer or the service provider. That does not mean that the Magistrate can pass orders solely relying upon the domestic incident report received by him from the protection officer or the service provider. Even as per Section 36 of the DV Act, the provisions of the DV Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. Even the Magistrate can also pass an interim order as per Section 23 of the DV Act.”
22. Per contra, the Respondent No. 2 appearing through Mr. S. Sen, learned counsel has stiffly opposed the submission and contentions of the learned counsel for the Petitioner and has reiterated that the reliefs sought for under Sections 18 to 22 of the DV Act, 2005 are purely civil in nature with no criminal liabilities, except for the fact that non-compliance of the order of the Court under the said Sections 18 to 22 would attract the penal provision of Section 31 of the DV Act 2005.
23. To add weight to his contention on the issue of maintainability, Mr. Sen has led this Court to the history behind the legislation of the Protection of Women from Domestic Violence Act, 2005, particularly pointing to the Object of the Act which is “An Act to provide 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”. Reliance in this regard was placed in the case of Indra Sarma v. V.K. V. Sarma: (2013) 15 SCC 755 at paragraphs 16 and 53 which reads as follows:
“16. “Domestic violence” is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord, 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 violence was undoubtedly a human rights issue. The UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498-A IPC. The civil law, it was noticed, did not address this phenomenon in its entirety. Consequently, Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted the DV Act. 53. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. (2006) 5 SCC 475, it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in civil law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages, etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.”
24. Mr. Sen has further submitted that in the case of Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari & Anr: (2016) 11 SCC 774, the Hon’ble Supreme Court had observed that the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498A of the Indian Penal Code and held that proceedings of the domestic violence are predominantly civil in nature.
25. Again, Mr. Sen has gone to great length to impress upon this Court that there is no dimension of any criminal law involved in proceedings under Section 18 to 22 of the DV Act, 2005, inasmuch as, the heading under Chapter IV of the said Act, which prescribes the procedure for obtaining orders and reliefs would show that the expression “Relief” was used in contrast to the expression “Offence” as can be found under the Indian Penal Code. This, according to Mr. Sen established the fact that Sections 18 to 22 of the DV Act, 2005 does not admit any criminal liability prescribing any punishment and the relief contemplated are purely civil and therefore, the proceedings before the Court are civil in nature.
26. The other limb of argument advanced by Mr. Sen is that the proceedings under Sections 18 to 22 of the DV Act, 2005 are to be instituted upon an application by the aggrieved person or the protection officer and it is therefore, not a complaint as can be understood in the meaning and provision of Section 2 (d) of the Code of Criminal Procedure. This apart, none of the provisions of the Act speak of framing of charges or awarding punishment etc. which are the trademarks of a Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 criminal trial, it is further submitted.
27. Referring to the case of Dr. V.K. Vijayalekshmi Amma and Anr v. Bindu V. & Ors: 2009 SCC Online Ker 6448, Mr. Sen has submitted that the Kerala High Court has held that in view of the alternative remedy expressly available under the Act, it was not for this Court to invoke the extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure, to quash a proceeding initiated under Section 12 (1) of the Act.
28. Again, the case of Giduthuri Kesari Kumar & Ors v. State of Telengana Rep. by Public Prosecutor & Anr: 2015 SCC Online Hyd 18, was cited, wherein the Hon’ble High Court has dismissed an application under Section 482 Cr.P.C as not maintainable and has observed that the DV Act, 2005 is a remedial statute where the offender was not liable to any penalty as none of the provisions of the DV Act, 2005 has direct penal consequences except for Section 31 which is an offence under the Act for breach of protection order or of an interim protection order by the respondent. Here too, it was observed that DV proceedings conducted till passing of the orders under Sections 18 to 22 were only civil in nature to provide a civil remedy and that it was a civil comfit wrapped with a criminal wrapper.
29. Two other citations were referred, viz; the case of Latha P.C. and Anr v. State of Kerela Rep. by the Public Prosecutor & Ors: 2020 SCC Online Ker 4238, wherein the High Court relying in the case of Vijayalekshmi (supra) has held that a petition under Section 482 Cr.P.C seeking quashing of domestic violence proceedings was not maintainable and also in the case of Dr. P. Pathmanathan & Ors v. Tmt. V. Monica & Anr, where the Madras High Court has expressed similar opinion, however has further held that a petition under Article 227 of the Constitution may still be maintainable, if it is shown that the proceedings before the Magistrate suffers from a patent lack of jurisdiction. Mr. Sen has however candidly admitted that the decisions cited above are not binding on this Court, but have only persuasive value.
30. On the reliance of the Petitioner in the case of Satish Chander Ahuja (supra), Mr. Sen has submitted that in the said case, the Hon’ble Supreme Court was not considering the maintainability of Section 482 Cr.P.C application vis-à-vis domestic violence proceedings. In fact, the bench has carefully issued a clarification on this issue at paragraph 146 of the same, which reads as follows:
“146. We make it clear that in the present case we are called upon to examine the consequences and effect of orders passed under Section 19 of the DV Act, 2005 on civil proceedings in a court of competent jurisdiction. Thus, our consideration and exposition are limited qua orders passed under Section 19 of the DV Act only i.e. a conflict between orders passed in a criminal proceeding on a civil proceeding.”
31. The argument of the learned counsel for the Petitioner that in the alternative, this application can be treated or converted into one under Article 227 of the Constitution and reliance placed in the case of Pepsi Foods Ltd. (supra) was countered by Mr. Sen who has submitted that the decision in the case of Pepsi Foods was on facts which were dissimilar to the facts in the present case and the Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 Hon’ble Court has held that a writ petition under Article 226 was not maintainable, but in the specific facts decided to treat it as a petition under Article 227 and 482.
32. On careful analysis of the points in issue raised by the learned counsel for the Respondent No. 2 on the question of maintainability of this instant petition under Section 482 Cr.P.C., what can be understood is that the main thrust was that the proceedings under the DV Act, 2005 are purely civil in nature and the relief contemplated under Sections 18 to 22 are civil reliefs with no criminal liabilities and as such, the enquiry is not a trial of criminal case, which will attract the provision of Section 482 Cr.P.C. Hence this petition is not maintainable and is liable to be rejected.
33. The argument of the learned counsel for the Respondent No. 2 in the opinion of this Court are valid as regard the nature and relief contemplated under the DV Act 2005, particularly those seen in Sections 18 to 22 which are civil in nature and can be sought for before any civil court, family court or a criminal court as provided under Section 26 of the said DV Act. However, the learned counsel has failed to notice that in Section 26 of the DV Act, the aggrieved person apart from a civil court or a family court, can seek the reliefs stated above even from a criminal court and in doing so, the aggrieved person would subject herself to the jurisdiction of a criminal court following the procedure of the Criminal Procedure Code.
34. In fact, Section 28 of the DV Act 2005 specifically provides that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 as well as Section 31 shall be governed by the provisions of the Code of Criminal Procedure, though liberty was also given to the court to lay down its own procedure.
35. The applicability of the said provision of Section 28 of the said DV Act in criminal proceedings was emphasized by the Hon’ble Supreme Court in the case of Satish Chander Ahuja (supra) at paragraphs 138 and 139 where it has restated that the procedure to be followed shall be under the Code of Criminal Procedure.
36. The learned counsel for the Respondent No. 2 has submitted that the Hon’ble Supreme Court in the said case of Satish Chander Ahuja (supra) at paragraph 146 of the same has pointed out that only Section 19 of the DV Act, 2005 has been singled out for consideration and exposition to examine the conflict between orders passed in a criminal proceeding on a civil proceeding and as such, it is maintained that the observation of the Court at paragraphs 138 and 139 are limited to this extent.
37. This Court is not in agreement with the submission of the learned counsel for the Respondent No. 2 on the observation of the Hon’ble Supreme Court in the said case of Satish Chander Ahuja (supra) to say that it is limited, when it is clearly seen that the Hon’ble Supreme Court has clearly spelt out its position on the nature of proceedings under the DV Act, 2005 being governed by the procedure under the Code of Criminal Procedure which is only a reiteration of the stated provision of Section 28 and as such, the relief or remedy may be civil in nature, but the procedure to be followed under the DV Act, particularly for proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 as well as under Section 31 has to be governed by the provisions of the Code of Criminal Procedure. Even reference to paragraph 146 would also show that Section 19 of the DV Act which is under consideration, is one of the section indicated above to be governed by the procedure of Code of Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 Criminal Procedure.
38. It is also a fact that Section 482 Cr.P.C provides for inherent power on the High Court to make such order as may be necessary to give effect to any order under the Code and as stated above, proceedings under the DV Act being governed by the procedure under the Cr.P.C, therefore the logical conclusion would be that an application under Section 482 is maintainable qua order passed under Sections 12, 18, 19, 20, 21, 22 and 23 of the DV Act.
39. With due respect, the decisions of the Hon’ble Kerala High Court and the Madras High Court cited above and relied upon by the learned Counsel for the Respondent No 2, as far as the procedural aspects under the DV Act is concerned, would not stand the test in the light of the decision of the Hon’ble Supreme Court in the case of Satish Chander Ahuja (supra).
40. Consequently, this Court finds that this instant petition under Section 482 Cr.P.C is maintainable. The submission and contention of the parties on the issue of consideration of converting this instant petition into one under Article 227 and the authorities referred thereto would therefore not require any decision or observation by this Court under the circumstances.
41. On the merits of this petition, at the outset, it would be profitable to look into the scope and ambit of the Court’s power under Section 482 Cr.P.C. On this point, the Apex Court in a catena of judgments has clearly spelt out the scope and ambit of Section 482 Cr.P.C some of which are reproduced herein.
42. In the case of Gorige Pentaiah v. State of A.P: (2008) 12 SCC 531 at paragraph 12 of the same, it was held that: “12. This Court in a number of cases has laid down the scope and ambit of courts’ powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.” Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021
43. In the same case of Gorige Pentaiah (supra) at paragraphs 13 to 18, the Apex Court has gone on to discuss on decided cases, as far as application of the inherent power of the High Court is concerned. For better elucidation, the same are reproduced below:
“13. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions, 1964 AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the courts’ power to prevent such abuse is of great constitutional importance and should be jealously preserved.”
14. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
15. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
16. This Court in State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 observed that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this Court and other courts.
17. In Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466, in a landlord and tenant matter where criminal proceedings had been initiated, this Court observed in SCC at p. 467, para 1 as under:
“1. A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous.”
The Court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The Court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. 18. This Court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 observed in para 7 as under: (SCC p. 695)
“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”
44. In the case of State of Haryana v. Bhajanlal: (1992) Supp 1 SCC 335 at paragraphs 102 and 103, the Apex Court has drawn up some guidelines in some categories of cases by way of illustration to circumscribe the exercise of inherent power under Section 482 Cr.P.C. to prevent abuse of the process of any court or to secure the ends of justice. The same are reproduced herein below: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021 wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”
45. Under the facts and circumstances of this case, this Court finds that the above cited authorities cannot be applied to the dispute between the parties as far as exercise of inherent power of this Court is concerned. Masood Khan vs . Smti. Millie Hazarika on 4 March, 2021
46. On the contention of the Petitioner that the application under the DV Act, 2005 filed by the Respondent No. 2 against the Petitioner is a counterblast to wreck vengeance on the Petitioner, this Court is unable to accept the same as a perusal of the application under Section 12 of the DV Act, 2005 filed by the Respondent No. 2 which was annexed as Annexure-19 of this petition would reveal that the Respondent No. 2 has specifically and clearly made several averments citing allegation of physical and verbal abuse against her by the Petitioner herein and as such, the said allegations, instances of which will be conveyed through a proper affidavit, has to be proved, which is possible only if the said proceedings under the DV Act progressed further and the same cannot be stifled at this juncture in exercise of the inherent power of this Court.
47. Again, on perusal of the impugned order, this Court finds that the same has been passed by a court of competent jurisdiction and as such, on this count, the same cannot be faulted. It is also seen that that has not been any apparent abuse of the process which warrants interference of this Court under Section 482 Cr.P.C.
48. However, only on a limited point, this Court is hereby called upon to interfere with the impugned order to secure the ends of justice. The direction at paragraph (iv) of the said order dated 06.01.2021 wherein the learned Magistrate has directed that “(iv) Alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent including any other property held either jointly by the parties or separately by them without the leave of the court” requires to be modified, inasmuch as, the alienation of any assets or operation of any bank account of the Petitioner herein/Respondent which is solely in his personal account shall not be interfered with in the said DV proceedings before the said learned Magistrate at Shillong.
49. It is to be reminded that the inherent powers of the High Court as far as Section 482 Cr.P.C. is concerned is to be exercised only in the rarest of rare case, this Court finds that the circumstances cited by the Petitioner herein seeking indulgence of this Court in this respect does not qualify as such to warrant interference by this Court. Be that as it may, the Petitioner, overall is not left without remedy as the provision for appeal is very much available under the said DV Act, 2005.
50. Accordingly, this Court finds that the Petitioner has not been able to make out a case for exercise of inherent power by this Court under section 482 Cr. P.C., except to the extent indicated above.
51. This petition is partly allowed.
52. Matter disposed of. No cost. Judge Meghalaya 04.03.2021 “D. Nary, PS”
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(iii) 2021 SCC OnLine Mad 1954
In the High Court of Madras
(BEFORE S.M. SUBRAMANIAM, J.)

P. Arun Prakash and Others … Petitioners;
Versus
S. Sudhamary … Respondent.
Tr.C.M.P. SR No. 15785 of 2021
and D.V.C. No. 43 of 2019
Decided on April 1, 2021
Advocate who appeared in this case:
For Petitioners : Mr. S.B. Viswanathan
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure Code read with Article 227 of the Constitution of India, to withdraw the proceeding in DVC No. 43 of 2019 on the file of the learned XVII Metropolitain Magistrate, Saidapet and transfer the same to the file of the V Additional Family Court at Chennai.
The Order of the Court was delivered by
S.M. SUBRAMANIAM, J.:— The Registry, High Court of Madras, raised an objection regarding the maintainability of the Transfer Civil Miscellaneous Petition as the relief sought for in the petition is to withdraw the proceedings in DVC No. 43 of 2019 from the file of the XVII Metropolitan Magistrate Court, Saidapet, Chennai and transfer the same to the file of the V Additional Family Court at Chennai. Thus, this case is listed under the caption ‘For Maintainability’.
FACTS OF THE CASE
2. The marriage between the 1st petitioner/husband and the respondent was solemnized on 06.06.2016 at Coimbatore as per the Hindu Rites and Customs. The 1st petitioner and the respondent started their matrimonial life in Singapore and thereafter, misunderstanding arose between them and the 1st petitioner/husband stated that the respondent/wife deserted him on 02.08.2018. Thus, the 1st petitioner/husband issued notice and filed a petition in O.P. No. 4652 of 2018 on the file of the V Additional Family Court, Chennai, seeking the relief of Restitution of Conjugal Rights.
3. The respondent/wife filed a Domestic Violence Complaint to the Social Welfare Officer, Chennai and after conducting an enquiry, the Social Welfare Officer has filed a Report to the XVII Metropolitan Magistrate’s Court, Saidapet, Chennai, and the learned Magistrate took cognizance of the complaint and numbered the petition as D.V.C. No. 43 of 2019.
4. The respondent/wife further filed the Maintenance Case in M.C. No. 482 of 2018, seeking maintenance, which is pending before the V Additional Family Court, Chennai. Under these circumstances, the present transfer petition is filed to transfer the Domestic Violence Act case in D.V.C. No. 43 of 2019 pending before the learned XVII Metropolitan Magistrate’s, Saidapet, Chennai to the V Additional Family Court, Chennai for joint trial.
5. The question of legal importance arose in the present petition is that, whether the High Court in exercise of the power of superintendence under Article 227 of the Constitution of India, transfer the criminal proceedings from the Criminal Court/Magistrate Court to the Family Court/Civil Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code.
6. Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer of a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments.
7. Yet another question raised is that whether the judgment of this Court in the case of Mohana Seshadri v. Anuja, reported in CDJ 2020 MHC 944 can be followed as a precedent, so as to pave way for the litigant to file a transfer petition in order to transfer a criminal proceedings to the Civil Court or Family Court.
8. In the said case of Mohana Seskadri (supra), the High Court exercised the powers under Article 227 of the Constitution of India and transfered the cases only on extraordinary circumstances, taking note of the particular facts and circumstances. Thus, such an exercise of power of discretion, exercised occasionally with reference to the facts cannot be construed as a precedent, so as to develop the practice of filing a transfer petition under Article 227 of the Constitution of India for transferring a criminal proceedings from the Court of Criminal law to the Civil Court or Family Court. Thus, the case cited by the petitioners need not be relied upon for the purpose entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.
9. The judicial institutions constituted pursuant to the provisions of the Special Acts are bound to function within the provisions of the Special Statute and excessive exercise of jurisdiction beyond the scope of the Statute is impermissible. Thus, the objections regarding the maintainability of the transfer petition under Article 227 of the Constitution of India raised by the Registry, High Court, is to be decided independently with reference to the provisions of the Special Acts and the Code of Criminal Procedure.
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT. 2005 [in short, ‘DV Act’]
10. The statement of objects and reasons for enacting the Domestic Violence Act clearly stipulates that in order to protect the women against violence of any kind occurring within the family. The phenomenon of Domestic Violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or relatives, it is an offence under Section 498-A of the Penal Code, 1860. The Civil law does not however address the phenomenon in its entirety.
11. With the above, let us now consider various provisions of the ‘DV Act’ for institution of proceedings as contemplated under the Domestic Violence Act.
12. Section 2(f) defines ‘domestic relationship’; Section 2(i) defines “Magistrate” 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; Section 3 provides ‘Definition of domestic violence’. Accordingly, for the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:
“(a) harms or injures or endangers the health safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person.
Explanation I.-For the purposes of this section,-
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes-
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested
(iv) “economic abuse”includes-
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) 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 Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”
13. Section 12 contemplates ‘Application to Magistrate’ and accordingly, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under this Act.
14. Section 26 provides ‘Relief in other suits and legal proceedings’. Sub-clause (1) states that any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceeding was initiated before or after the commencement of this Act. Sub-clause (2) states that ‘Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
15. Section 26 is an enabling provision, facilitating the litigants to seek other reliefs of civil nature before the civil court and family court. The said provision would not change the character of the criminal proceedings to be conducted by the Magistrate court under the provisions of the Domestic Violence Act.
16. Section 27 denotes the ‘Jurisdiction’, which is extracted hereunder:—
“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; or
(b) the respondent resides or carries 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.”
17. Section 28 deals with the ‘Procedure’. Sub-clause (1) contemplates states that “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).”
18. Thus, the provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.
19. Let us now look into Section 31, which contemplates -‘Penalty for breach of protection order by respondent’. 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.
20. Section 33 deals with ‘Penalty for not discharging duty by Protection Officer’. If any Protection Officer fails or refuses to discharges his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished 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.
21. Section 29 deals with ‘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.
22. Cogent reading of all the provisions considered above, undoubtedly, the proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the Domestic Violence Act is criminal proceedings on the criminal side of the judiciary and accordingly, the said proceedings are to be regulated under the Criminal Procedure Code.
23. Section 26 of the ‘DV Act’ contemplates that reliefs under Sections 18 to 22 may be sought for by instituting proceedings before the Civil Court, Family Court or the Criminal Court. The said provision grant liberty to the litigants to file independent applications/petitions before the Family Court, Civil Court or Criminal Court under various provisions of the other Statutes. For example, a custody petition may be filed under the Guardian and Wards Act, a Maintenance Petition may be filed under Section 125 of the Cr.P.C, or before the Family Court as the case may be and such reliefs of Civil nature is contemplated, enabling the litigants to redress their grievances with reference to the other enactments. Such facility or option provided to the litigants would not change the character of the nature of criminal proceedings instituted under the ‘DV Act’ and it is only an alternate relief and in the event of obtaining any such order from any other Court, it is mandatory that such reliefs obtained must be informed before the Magistrate Court in the Domestic Violence Act proceedings. This being the rider clause as contemplated, the intention of the legislatures are to provide multiple options to the women litigants to redress their grievances in a speedy manner and in the event of obtaining any such reliefs from any other Court, the said order or proceedings must be informed to the Magistrate Court in respect of the Domestic Violence litigation instituted under Section 12 of the ‘DV Act’.
24. The relief granted under Section 26 of the Domestic Violence Act is in addition to the reliefs, which can be obtained under the ‘DV Act’ itself. Thus, it is an additional provision as contemplated, facilitating the women litigants to avail the remedies with reference to the other special enactments. In other words, the ‘DV Act’ would not prohibit the litigants from redressing their grievances before the Civil Court under a particular enactment, which provides reliefs for the women litigants.
25. Section 26 further permits an aggrieved person to seek reliefs in a pending proceedings, which were instituted even before the commencement of the Domestic Violence Act. Thus, the legislative intention under Section 26 is to provide multiple options to the aggrieved women litigants to redress their grievances in a speedy manner and further, not to prohibit such litigants from approaching the Civil Court for appropriate relief as contemplated under various other enactments, even after the institution of proceedings under ‘DV Act’.
26. Sub-Clause (2) to Section 26 is clear that any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. Therefore, the said provisions under the ‘DV Act’ would not alter the nature of criminal proceedings instituted under the ‘DV Act’.
27. Sub-clause (3) to Section 26 contemplates ‘in case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under the ‘DV Act’, she shall be bound to inform the Magistrate of the grant of such relief. Thus, on a conjoint reading of sub-clause to Section 26 make it very clear that it is an enabling provision and in the event of obtaining any relief from other Courts, namely, Civil Court or Family Court or Criminal Court, the said facts are to be placed before the Magistrate Court in a Domestic Violence case instituted under the Act.
28. It is needless to state that the right of appeal is a Statutory right under the Domestic Violence Act. Section 29 contemplates appeal to the Court of Sessions and, therefore, for all purposes, the proceedings under the Domestic Violence Act is a criminal proceeding, which is regulated under the Cr.P.C and throughout the Act, the provisions contemplates the powers of Judicial Magistrate/Metropolitan Magistrate.
29. Perusal of Section 3 of the Domestic Violence Act, unambiguously clarifies that all such offences as contemplated are relatable to bodily injuries and other related offences. Thus, those offences defined Section 3 of the Domestic Violence Act are criminal in nature and certain offences are falling under the provisions of the Penal Code, 1860.
30. Sub clause (a), (b), (c), (d) to Section 3 of the Domestic Violence Act deals with the offences relatable mostly to the bodily injuries and other criminal natured offences. Thus, the Domestic Violence Act is a Special Act enacted for the purpose of dealing with the Domestic Violences, which all are contemplated and defined under the Act and the same cannot be compared with other civil natured proceedings, to be initiated under the provisions of the Civil Procedure Code, Family Courts Act or the Marriage laws.
31. The legal maxim is Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail). In this context, it is to be held that Special Act will prevail over the General laws. When a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violences are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceedings.
FAMILY COURTS ACT, 1984
32. Section 3 of the Family Courts Act, 1984 provides Establishment of Family Courts. Chapter III, Section 7 of the Family Courts Act deals with ‘Jurisdiction’ which provides as under:
“7. Jurisdiction.-(1) Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment”
33. Section 7, Sub Clause (a) of the Family Courts Act stipulates the Family Court shall have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. Sub Clause (b) states that the Family Court shall be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
34. Explanations provided under Section 7 of the Act elaborates the nature of disputes, which all are to be adjudicated before the Family Court. Section 7(2) of the Act empowers the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974). Thus, the applications, which all are filed, seeking Maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Thus, with reference to the jurisdiction as contemplated under the Domestic Violence Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the Domestic Violence Act.
CRIMINAL PROCEDURE CODE
35. Section 407 of the Code of Civil Procedure Code provides Power of High Court to transfer cases and appeals. Accordingly, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of 407 of the Code of Civil Procedure.
CIVIL PROCEDURE CODE
36. Under Section 24 of the Code of Civil Procedure, Civil proceedings can be transferred from one Civil Court to another Civil Court.
37. However, Criminal proceedings cannot be transferred from a Criminal Court of Law to a Civil Court/Family Court and all the more by exercising the supervisory power under Article 227 of the Constitution of India.
ARTICLE 227 OF THE CONSTITUTION OF INDIA
38. In the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329, the Apex Court elaborately considered the High Court’s Power of Superintendence under Article 227 of the Constitution has its origin as early as in Indian High Courts Act of 1861. This concept of superintendence has been borrowed from English Law. The power of superintendence owes its origin to the supervisory jurisdiction of King’s Bench in England. In the Presidency towns of the then Calcutta, Bombay, Madras initially Supreme Court was established under the Regulating Act of 1793. Those Courts were endowed with the power of superintendence, similar to the powers of Kings Bench under the English Law. Then the Indian High Courts in three Presidency towns were endowed with similar jurisdiction of superintendence. Such power was conferred on them under Section 15 of the Indian High Courts Act, 1861.
39. Then in the Government of India Act, 1915 Section 107 continued this power of superintendence with the High Court. Section 107 of the Government of India Act, 1915 was structured, providing Powers of High Court with respect to subordinate Courts. In the Government of India Act, 1935, the said Section 107 was continued with slight changes in Section 224 of the Act. The history of this power has been elaborately traced by a Division Bench of Calcutta High Court in the case of Jahnabi Prosad Banerjee v. Basudeb Paul, reported in AIR 1950 Cal 536 and that was followed in a Division Bench Judgment of Allahabad High Court in the case of Sukhdeo Baiswar v. Brij Bhushan Misra in AIR 1951 All 667.
40. The history of Article 227 has also been traced by the Apex Court in its Constitutional Bench judgment in the case of Waryam Singh v. Amarnath [AIR 1954 SC 215]
41. About the nature of the power of superintendence, Apex Court relied on the Special Bench judgment delivered by Chief Justice Harries in the case of Dalmia Jain Airways Limited v. Sukumar Mukherjee (AIR 1951 Cal 193).
42. In paragraph 14 page 217 of Waryam Singh (supra), Supreme Court neatly formulated the ambit of High Court’s power under Article 227 in the following words:
“This power of superintendence conferred by Article 227 is, as pointed out by Harries C.J., in “Dalmia Jain Airways Ltd. v. Sukumar Mukherjee’, AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.”
43. Chief justice Harries in the Full Bench decision in Dalmia (supra) stated the principles on which the High Court can exercise its power under Article 227 very succinctly which, we would better, quote:
“6. Though this Court has a right to interfere with decisions of Courts and tribunals under its power of superintendence, it appears to me that that right must be exercised most sparingly and only in appropriate cases. The matter was considered by a Bench of this Court in Manmathanath v. Emperor, AIR 1933 Cal 132. In that case a Bench over which Sir George Rankin C.J. presided held that Section 107, Government of India Act (which roughly corresponds to Article 227 of the Constitution), does not vest the High Court with limitless power which may be exercised at the Court’s discretion to remove the hardship of particular decisions. The power of superintendence it confers is a power of a known and well-recognised character and should be exercised on those judicial principles which give it its character In general words, the High Court’s power of superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner.”
44. The power of the High Court under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise. Thus, the power of superintendence is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or Tribunals.
45. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State, But in cases, where the High Court exercise its jurisdiction under Article 227. such exercise is entirely discretionary and no person can claiming it as as a matter of right.
46. In the case of Jasbir Singh v. State of Punjab, reported in (2006) 8 SCC 294, the Hon’ble Supreme Court relied on the case of Mohd Yunus v. Mohd Mustaqim (1983) 4 SCC 566 : AIR 1984 SC 38, Wherein the Apex Court held as follows:
‘The supervisory jurisdiction conferred on the High Court’s under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority,” and not to correct an error apparent on the face of the record, much less an error of law.. In exercising its supervisory powers under Article 227, the High Court does not act as an appellate court or Tribunal. It will not review or reweigh the evidence upon which the inferior court or tribunal purports to be based or to correct any errors of law in the decision.”
……..This Court also made almost similar observations in State v. Navjot Sandhu (2003) 6 SCC 641.
“So, even while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. It is the members of the subordinate judiciary who directly interact with the parties in the course of proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants.”
47. In a recent judgment in the case of Mohd. Inam v. Sanjay Kumar Singhal, the Apex Court in Civil Appeal No. 2697 of 2020 dated 26.06.2020, considered the principles:
His Lordship B.R. GAVAI, J., while speaking for the Bench, held as follows:
“32. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale 10, Bathutmal Raichand Oswal v. Laxmibai R. 10 (1960) 1 SCR 890 Tarta, India Pipe Fitting Co. v. Fakruddin M. A. Baker, Ganpat Ladha v. Sashikant Vishnu Shinde 13, Mrs. Labhkuwar Bhagwani Shaha v. Janardhan Mahadeo Kalan, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram 15, Venkatlal G. Pittie v. Bright Bros (Pvt.) Ltd. 16, State of Maharashtra v. Milind 17, State Through Special Cell, New Delhi v. Navjot Sandhu Alias Afshan Guru 18, Ranjeet Singh v. Ravi Prakash l9, Shamshad Ahmad v. Tilak Raj Bajaj (Deceased) Through LRs. 20, Celina Coelho Pereira (Ms.) v. Ulhas Mahabaleshwar Kholkar 21.”
48. In yet another judgment in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538, the Hon’ble Supreme Court of India in unambiguous terms held as follows:
“12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court This is why, a 3-rnember Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675], pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that “orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts”.
13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.”
49. The above judgments of the Hon’ble Supreme Court of India as well as the High Courts with reference to the principles settled for exercise of supervisory power under Article 227 of the Constitution of India, it is consistent that the scope of the power is limited and to be exercised sparingly and certainly, it cannot be exercised overriding the provisions of the Special Enactments, wherein specific reliefs are provided for redressal.
50. In this context, the Family Courts Act deals with Family disputes and the powers and jurisdiction of the Family Courts are unambiguously enumerated in the Statute itself Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated. Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’. Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceedings”. Offences against the women are falling both under criminal law and under civil law. In a family dispute, when there is a possibility of institution of both criminal proceedings and civil proceedings, the ‘DV Act’ contemplates certain enabling provisions, permitting the aggrieved women to file civil cases before the Civil Court and Family Courts under the respective Statutes, in order to redress their grievances. However, the said facts are to be informed before the Magistrate Court concerned. Section 26 in this regard clarifies that aggrieved person may sought for such reliefs before the Civil Courts and Family Courts by filing an appropriate application and by following the procedures as contemplated under the Special enactments.
51. This being independent procedures as contemplated under various Special enactments, the transfer of cases to be followed strictly in consonance with the provisions of the Criminal Procedure Code and Civil Procedure Code. When the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a civil case to a Criminal Courts, then the conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by the Hon’ble Supreme Court in various judgments discussed elaborately in the aforementioned paragraphs.
52. Thus, the power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India. Jurisdiction, which is not traceable under Article 227 of the Constitution of India cannot be exercised, which would result in excess exercise of power, which is not desirable.
53. It is relevant to look into Clause 13 of the Letters Patent, wherein it is contemplated as follows:
“13. Extraordinary original civil jurisdiction : – And we do further obtain that the High Court of Judicature at Madras, shall have power to remove, and to try and determine, as a Court of Extraordinary Original Jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court
54. Even under the above provision, the suits alone are mentioned and the criminal proceedings are not mentioned in the Letters Patent. Thus, power of transfer of cases from Criminal Court of law to Civil Court or Family Court is not traceable under Article 227 of the Constitution of India.
55. The Domestic Violence Act, Family Courts Act, Law for Maintenance, Custody of Children etc., are enacted for the welfare and to protect the interest of the women in our great Nation. The Special enactments provide varieties of reliefs, enabling the aggrieved women to redress their grievances by following the procedures as contemplated. These Special Enactments are self-regulated and the jurisdiction of the Courts constituted and the powers and the procedures are also enumerated. While so, there is no reason whatsoever to deviate from the provisions of such special enactments for the purpose of invoking Article 227 of the Constitution of India. In other words, the proceedings under those special enactments are to be regulated in accordance with the provisions of such Acts and not otherwise. The scope of the power of superintendence of Subordinate Courts by the High Court under Article 227 of the Constitution are entirely distinct and different and the same cannot be exercised for the purpose of transfer of cases from Criminal Court to the Family Court or the Civil Court.
56. The special enactments are for the protection of women and for their welfare. Thus, the multiple options provided under various special enactments, facilitating the aggrieved women to redress their grievances are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting the women must be disposed of at the earliest possible. Protraction and prolongation of such litigations can never be encouraged by the Courts.
57. Conjoint reading of Section 44 of the Penal Code, 1860 and Section 3 of the Domestic Violence Act portrays the nature of injuries for initiation of proceedings under the Domestic Violence Act. Undoubtedly, all such bodily injuries are serious in nature and affecting the fundamental rights of women. Thus, initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate. The word “injury” is defined in Section 44 of the Penal Code, 1860 as the word “injury” denotes ‘any harm whatsoever illegally caused to any person, in body, mind, reputation or property’.
58. Thus, the injuries enumerated under the provisions of the Domestic Violence Act are bodily injuries, which all are offences as contemplated under the Penal laws. Thus, all such offences/bodily injuries as contemplated under the Domestic Violence Act are against the society at large and therefore, the proceedings are criminal proceedings and the competent criminal Court of Law is empowered to try those cases. Section 28 of the Domestic Violence Act states that the proceedings are to be regulated under the Criminal Procedure Code. Thus, such criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.
59. In view of the discussions made elaborately in the aforementioned paragraphs, this Court has no hesitation in concluding that all proceedings initiated under the provisions of the Domestic Violence Act are criminal proceedings and the competent criminal Court of Law is empowered to try such proceedings. Thus, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking the powers under Article 227 of the Constitution of India, to transfer the said case to the Civil Court or Family Court.
60. In the event of transferring the Domestic Violence Act proceedings to the Family Court or Civil Court, the said Courts cannot have any jurisdiction to try and convict under the penal provisions as contemplated under the Domestic Violence Act. Thus, aggrieved women, who instituted the proceedings under Section 12 of the Domestic Violence Act is deprived of getting appropriate reliefs and justice as contemplated under the provisions of the Domestic Violence Act. Thus, such transfers would defeat the very purpose and object of the penal provisions as contemplated under the Domestic Violence Act and the punishments indicated therein. Further, by transferring the Domestic Violence case from Magistrate Court/Metropolitan Magistrate to the Family Court/Civil Court, the High Court is not empowered to confer any additional powers or jurisdiction to such Family Courts or Civil Courts, which is beyond the scope of the provisions of the Family Courts Act and Domestic Violence Act. Thus, the powers not conferred under the Special enactments cannot be exercised nor such an exercise may be done by invoking Article 227 of the Constitution of India.
61. It is relevant to consider that the nature of proceedings, procedures to be followed as well as the appreciation of evidences to be considered. Criminal Courts and the Civil Courts are distinct and different. Nature of reliefs to be granted by the Criminal Court of Law and Civil Court of Law cannot be compared at all. Thus, the procedural differences and the distinct nature of proceedings would cause injustice to the parties in the event of transferring the Criminal proceedings to the Family Court or Civil Court and therefore, such a transfer would cause prejudice to the aggrieved persons to redress their grievances in the manner prescribed under special enactments.
62. For all these reasons, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with the provisions of law and the said objections stands confirmed. Consequently, Tr. CMP SR No. 15785 of 2021 is rejected at the SR Stage itself. However, there shall be no order as to costs.

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(iv) Chaitanya Singhania & Anr –Vs. Khusboo Singhania

In the High Court at Calcutta
Criminal Revisional Jurisdiction

The Hon’ble JUSTICE BIBEK CHAUDHURI
CRR 2911 of 2019

For the Petitioners: Mr. Sabyasachi Banerjee, Adv.
Mr. Anirban Dutta, Adv.
Mr. Abhishek Jain, Adv.
For the Respondent: Mr. Sanjoy Bose, Adv.

Judgment on: September 27, 2021.
BIBEK CHAUDHURI, J. : –
1. The question that requires an answer in the instant revision is whether an order passed by the learned magistrate in a proceeding under Section 12 read with Section 23 of the Protection of Women from Domestic Violence act, 2005 (hereinafter described as the said Act) on the point of maintainability of the said proceeding can be quashed under the provisions of Section 482 of the Code of Criminal Procedure (hereafter described as the Code).
2. The above question would have been answered considering the provisions of the said Act and the Code but for the conflicting decisions on the applicability of section 482 of the Code in a proceeding under the said Act. The Hon’ble Madras High Court in Dr. P. Pathmanathan v. V. Monica: (2021) 2 CTC 57 pronounced an order on 18th January 2021 holding, inter alia, that the petition under section 482 of the Code is not maintainable. However, the petition under Article 227 of the Constitution is maintainable if it is found that the proceedings before the magistrate suffered from patent lack of jurisdiction. The Jurisdiction under art. 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exist jurisdictional error and that substantial injustice would be caused if the power is not exercised in favour of the petitioner. In normal circumstances, the power under article 227 will not be exercised as a measure of self-imposed restriction in view of the corrective mechanism available to the aggrieved parties before the magistrate, and then by way of an appeal under section 29 of the Act.
3. In short, the Madras High Court said that the relief under the said Act will be granted by a civil or criminal or family court. Further there is no application of service of summons under the said Act upon the respondent as under section 61 of the Code. It also held that an application under section 12 of the said Act is not a complaint under section 2(d)and consequently section 190(1)(a) and sections 200-204 of the Code have no manner of application in such proceeding. Further, there is no concept of an accused but a concept of the respondent in the said Act and finally in absence of the concept of commission of an offence in the PWDV Act redressal in terms of Section 482 of the Code is not available.
4. It is true that the above-mentioned judgment has no binding force on this court. However, in view of the persuasive nature of the judgment passed by the Hon’ble Single Judge of Madras High Court, this court likes to revisit the issue in order to come to a finding as to whether section 482 of the Code is applicable in relation to an application under section 12 of the said Act.
5. The Protection of Women from Domestic Violence Act, 2005 was enacted to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in society. The Act is enacted for eliminating all sorts of discrimination against women. It is the bonafide legislation to render justice to the women who suffered domestic violence. The Act states in its preamble:-
“An Act to provide 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.”
6. Section 3 defines Domestic Violence as hereunder:-
3. Definition of domestic violence: For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical 4 abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
7. Thus Domestic Violence constitutes both a criminal act and civil wrong perpetrated upon a woman who is in a domestic relationship with the respondent. The respondent may be the husband, parents, parentsin-law, maternal or matrimonial relations with whom the woman is in a domestic relationship. It is needless to say that the victim woman is termed as the aggrieved person in the said Act. The phrase ‘victims of violence’ indicates the incidents of physical harm and injuries caused to the victim. According to Black’s Law Dictionary, VIOLENCE means ‘Unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury’.
8. Definition of Domestic Violence is inclusive in nature encompassing “harm or injuries, endangering the health, safety, life, limb or well being, whether mental or physical”. As provided above, the criminal nature of the specific acts committed by the respondent(s) is to be construed as 5 domestic violence is crystal clear as it includes bodily injury as well as physical harm. Section 44 of the Indian Penal Code defines injury in the following: ‘Injury-The word ‘injury’ denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
9. Theoretically, there is no difference between domestic assault and non-domestic assault. While the two types of assault are legally identical, they are sociologically distinct. Domestic Violence, perhaps cannot be disputed to be different from most other crimes, at the root of which is the power theory of violence. Domestic Violence is an amalgamation of criminal offence and civil wrongs. A lady at the same time may be treated with cruelty, sexual abuse, or subjected to a criminal offense under Indian Penal Code, POCSO Act, etc. And at the same time coupled with the commission of offence she may be denied of having her stridhan properties, residential rights in the shared household, monetary reliefs, and custody of her children.
10. The said Act speaks of the following reliefs for an aggrieved person:-
i. Protection Orders (Section 18)
ii. Residence Orders (Section 19)
iii. Monetary Reliefs (Section 20)
iv. Custody Orders (Section 21) v. Compensation Orders (Section 22)
11. Section 23 empowers the Magistrate to grant interim and ex parte orders on the basis of an affidavit of the aggrieved person providing temporary reliefs under section 18-21 of the said Act.
12. Section 27 lays down jurisdiction to adjudicate an application under section 12 of the said Act the provision runs thus:- 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; or (b) the respondent resides or carries 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.
13. Section 28 speaks of the Procedure stating:- 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.
14. The Act also provides the provision of appeal against an order passed by a Judicial Magistrate of First Class or a Metropolitan Magistrate before a Court of Sessions. Non-compliance with an order under sections 18-22, 23, and 29 is an offense under 31 of the Act. 7
15. The above, being the provision of the said Act, confusion arises in the mind of the court to negotiate the two provisions contained in the said Act, namely Section 26 and Section 28. While the provision of Section 28 prescribes the procedure to be followed in deciding an application under Section 12 read with Section 23 of the said Act, Section 26 states as follows:- 26. Relief in other suits and legal proceedings.—(1) Any relief available under sections 18, 19,20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
16. If the scheme of the Act is taken into consideration, it would appear that Section 26 is an enabling provision empowering an aggrieved person to seek reliefs under Section 18, 19, 20, 21 and 22 in a pending legal proceeding before a civil court, family court or a criminal court between 8 the aggrieved person and the respondent. The said provision states that in a suit for restitution of conjugal rights, judicial separation or divorce pending in the civil court or family court an aggrieved person may file an application under Section 12 of the said Act claiming one or different reliefs as provided in Section 18-22 of the said Act. It is needless to say that notwithstanding Section 26 being in the statute book, general provision as to the procedure is laid down in Section 28 of the said Act.
17. There cannot be any dispute that the reliefs under the said Act are civil in nature and protection order, residence order, monetary reliefs, custody order and compensation orders are the reliefs for violation of civil wrong of an aggrieved person by the respondent in course of domestic violence. Since domestic violence infringes several penal provisions and at the same time civil wrongs, an enabling provision has been included in the statute by the parliament while enacting the Act.
18. However, the general provision as to the procedure to be followed for reliefs to be provided to an aggrieved person, Section 28 in unequivocal term states that it shall be governed by the provision of the code of criminal procedure.
19. A distinction is sought to be made by the Higher Judiciary and interpreters of the statutes that Sub-Section (2) of Section 28 speaks of a non-obstante clause empowering the court to lay down its own procedure for disposal of an application under Section 12 or Sub-Section (2) of Section 23 of the said act.
20. In my considered view, Sub-Section (2) of Section 28 cannot be read separately in isolation of Sub-Section (1) of Section 28. The trial court is empowered to lay down its own procedure for disposal of an application under Section 23 but such procedure shall not be dehors the provision of the Code.
21. The Code of Criminal Procedure lays down the procedure for trial of different types of proceedings and cases.
22. Chapter VIII deals with the procedure for passing an order for maintenance of wives, children and parents. Chapter X empowers the Executive Magistrate for maintenance of public order and tranquillity, having three distinct parts namely (A) Unlawful Assembly, (B) Public Nuisance, (C) Urgent Cases of Nuisance and Apprehended Dangers. The Executive Magistrate is empowered to follow the procedure under the Code under Chapter X while passing the order. It is important to note that under Section 142 of the Code of Criminal Procedure the Magistrate is empowered to pass even an order of injunction, which relief is absolutely civil in nature. Apart from the above-stated proceedings, Chapter XVIII delineates the procedure regarding trial of offences before a Court of Session, Chapter XIX lays down the procedure for trial of warrant cases. Chapter XX states the procedure of trial of summons cases and Chapter XXI deals with the procedure of summary trial.
23. Since section 28 of the said Act authorizes application of Code of Criminal procedure so far as the procedure to adjudicate all proceedings under the said Act, it is specifically stated in Rule 6(5) of the Protection of 10 Women from Domestic Violence Rules, 2006, that the application under Section 12 shall be dealt with or order is enforced in the same manner laid down under section 125 of code of criminal procedure. Section 126 of the Code prescribes the procedure for adjudication of proceeding under section 125 which runs as hereunder:- 126. Procedure.—(1) Proceedings under section 125 may be taken against any person in any district— (a) where he is, or (b) where he or his wife resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to 11 such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
24. Within the meaning of Section 2(e) read with Section 6 of the Code, the High Court is the highest appellate court of the State. Section 6 of the Code recognizes the High Court as a criminal court within the meaning of the Code. The High Court is, therefore, a Court created under the Constitution and recognized under the provision of Code. The High Court has therefore to act within the parameter of ‘Law’. Being a criminal court, the jurisdiction of the High Court is to determine the existence of a dispute in the nature of domestic violence between the aggrieved person and the respondent. Similarly, the High Court has the jurisdiction to determine the existence of a dispute within the meaning of the said Act while exercising the jurisdiction under Section 482 of the Code when the High Court finds that no dispute between the parties or no offence has been disclosed, it ceases to have its jurisdiction into the matter any further. The High Court is equally bound by the written law like any other ordinary criminal law. The only exception is that the High Court can interpret written law when ordinary criminal courts denude of such power. Nevertheless, the High Court must act within the four corners of the statutory provision. For example, the High Court cannot impose sentences less than the minimum sentence as statutorily provided. Nor 12 can the High Court waive the requirement of pre-deposit in preferring an appeal/revision in case the pre-deposit is the legislative mandate. Under Section 482 of the Code, the High Court exercises the summary jurisdiction. In State of Andhra Pradesh vs. S.R Rangadamappa reported in AIR 1982 SC 1492 it is held by the Hon’ble Supreme Court that where a minimum sentence is prescribed by the statute without providing for an exception and without conferring any discretion on the ground to award, a sentence below the prescribed minimum is not permissible.
25. In Ajay Kumar Das vs. State of Jharkhand, reported (2011) 12 SCC 319, the Hon’ble Supreme Court was pleased to observe that the purpose of Section 482 of the Code is to find out the existence of an offence. In such determination, it is the rule that the averments of the complaint are to be treated as the gospel truth. Generally, no defence of the accused, however plausible the same may be, can be considered by the High Court. Hence, in coming to the conclusion regarding the existence of an offence under Section 482 of the Code, the High Court decided everything from the point of view of the complainant or the informant. It is a complainant or informant’s centric approach. Since the defence of the accused and his private documents are beyond the scope of consideration of the High Court, therefore, the High Court under Section 482 Cr.P.C. does not adjudicate upon the defence of the accused.
26. The principle set forth in article 482 of the Cr.P.C. based on the maxim “quando lex aliquid alicui concedit , concedere videtur ed it 13 sine quo res ipsae esse non potest”, i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable (Dinesh Dutt Joshi v. State of Rajasthan, (2001) 8 SCC 570). The concept of inherent powers depends on the distinction between powers expressly set forth in the Constitution or laws and powers vested in the government, constitutional official or individual government official; tacit possession, whether because of the nature of sovereignty or because of the easy reading of the language of the Constitution or statutes. Black’s law dictionary defines it as “powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from the express grants”. Webster’s New World Dictionary defines inherent power as “a power that must be deemed to exist in order for a particular responsibility to be carried out”.
27. Section 482 Cr.P.C. stated three conditions under which the inherent powers may be exercised by the High Court, namely:- (i) in order to give effect to an order under the Code, (ii) to prevent abuse of the process of the court; and (iii) to otherwise secure the ends of justice.
28. The three conditions are mutually not exclusive, rather the application of these conditions would necessarily overlap. For example, preventing the abuse of the process of the court cannot be distinguished as a category different from securing the ends of justice; in fact, preventing such abuse would be with a view to secure the ends of justice only. Likewise to give effect to an order under the code also serves to 14 secure the ends of justice. It is very clear though, that the ambit of “securing the ends of justice” is a very broad term, broader and inclusive of the first two conditions. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent powers of the court. Undoubtedly the power possessed by the High Court under the said provision is very wide and is not limited in nature. It has to be exercised sparingly, cautiously and carefully, ex debito justitiae to do real and substantive justice for which only the court exists. [Jefrey J. Deirmeir v. State of W.B., (2010) 6 SCC 243 at 251].
29. Inherent jurisdiction of High Court is not part of the ordinary litigation process. While exercising powers under section 482, the court does not function as a court of appeal or revision. Appeal and revision processes are creation of statutes and not contemplated to be the part of inherent powers of the court. The High Court while exercising its inherent powers would not enter into the appreciation or re-appreciation of evidence as it done if a case would reach the court by way of a statutory appeal. Again the scope of revision is different from the inherent power of the Court. In revision, jurisdictional error, illegality of an order and material irregularity are the issues. But under the inherent power in the High Court, the Court will see if continuation of a criminal proceeding shall cause abuse of the process of the Court and cause of justice shall be defeated, if the proceeding is allowed to be continued.
30. The orders passed by the High Court in its exercise of inherent powers are not appealable by way of a provision for statutory appeal. 15 Against the order of High Court the affected party can take up the matter to the Supreme Court by a special leave petition under Article 136 of the Constitution.
31. In Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460, the Supreme Court held that there may be some overlapping between the power of revision of High Court under section 397 Cr.P.C. and its inherent powers under section 482 Cr.P.C. because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent powers being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of Cr.P.C.
32. In the case of State of Haryana v. Bhajan Lal reported in (1992) Supp (1) SCC 335 the Supreme Court has gathered broad guidelines for the exercise of inherent powers with a view to quash criminal proceedings under section 482 of Cr.P.C. and Article 226/227 of the Constitution from the different legal provisions and the pronouncements made by the courts in India. Identifying those guidelines by way of illustration while saying that an exhaustive list is not possible or desirable, the Supreme Court stated as follows:-
(i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
33. In Pepsi Food v. Special Judicial Magistrate reported in (1998) 5 SCC 749, the Supreme Court held that though the magistrate can discharge the accused at any stage of the trial if he considers the charges to be groundless, this does not mean that the accused cannot approach the High Court under section 482 to have the complaint quashed if the complaint does not disclose the commission of a cognizable offence against the accused person. The Court, therefore, concluded that the order of the High Court refusing to quash the complaint on the ground that alternative remedy was available under the Code to the accused was not proper.
34. I am not unmindful to note, that the above discussion in the foregoing paragraphs is in relation to offence within the meaning of section 2(n) of the Act. Since the said Act clearly states that the Code of Criminal Procedure will apply while adjudicating the dispute under Sections 18 – 22 and 23(2) of the said Act and the applications are to be filed before the court of Ld. Judicial Magistrate of 1st class or the Metropolitan Magistrate. The Protection of Women from Domestic Violence Act, 2005 is predominantly a criminal act.
35. In this regard, I am tempted to record the observation made by this Court in the case of the Deputy Legal Remembrancer vs. Upendra Kumar Ghose reported in [1907] 12 C.W.N. 140, wherein it was observed that the function of the Court is only to expound the law and not to legislate it. “Judicis est jus dicere, non dare” which means it is the proper role of a Judge to state the right, not to endow it. Generally, interpreted it is the duty of the judge to administer justice and not to make law (Black’s Law Dictionary at page 1727). In interpreting a statutory provision, a judge can iron out the creases but “must not alter the material of which the act is woven. Therefore in interpreting a statute, a court cannot import any foreign material into it which is not in the Act.
36. The Hon’ble Supreme Court in Padma Sundara Rao vs. State of T.N reported in (2002) 3 SCC 533 was pleased to hold that it is well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statue is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said, “Statutes should be construed, not as theorems of Euclid”, Judge Learned Hand said, “but words must be construed with some imagination of the purposes which lie behind them’.
37. In D.R. Venkatchalam v. Dy. Transport Commr [AIR 1977 SC 842], it was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
38. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case. In Nanjudaiah case the period was further stretched to have the time period run from date of service of the High Court’s order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.
39. Two principles of construction – one relating to casus omissus and the other in regard to reading the statute as a whole – appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. “An intention to produce an unreasonable result”, said Danckwerts, L.J., in Artemiou v. Procopiou [(1965) 3 All ER 539, 544], “is not to be imputed to a statute if there is some other construction available”. Where to apply words 21 literally would “defeat the obvious intention of the legislation and produce a wholly unreasonable result”, we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. 16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder [AIR 1980 Mad 251], was rendered on 22-6-1979 i.e. much prior to the amendment by the 1984 Act. If the legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case.
40. Again in D. M., Aravali Golf Club v. Chander Hass : 2007 (14) SCC 1, the Supreme Court observed hereunder:- 21 “18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs & Pharmaceuticals Ltd. v. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007)1 SCC 408 and S.C. Chandra v. State of Jharkhand, JT 2007 (10) 4 SC 272. 19. Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. 20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State ‘ the legislature, the executive and the judiciary ‘ must have respect for the others and must not encroach into each others domains. 25
The theory of separation of powers first propounded by the French thinker Montesquieu (in his book The Spirit of Laws) broadly holds the field in India too. In chapter XI of his book ‘The Spirit of Laws’ Montesquieu writes :
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judicial power be not separated from the legislative and 22 executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
We fully agree with the view expressed above Montesquieu’s warning in the passage above quoted is particularly apt and timely for the Indian Judiciary today, since very often it is rightly criticized for ‘over-reach’ and encroachment into the domain of the other two organs.”
In Tata Cellular v. Union of India [AIR 1996 SC 11], this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many courts are not following these decisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges’ preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not. In the word of Chief Justice Neely:
“I have very few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the 23 intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator.”
41. The English Law has also enunciated the same principle as narrated above in Inco Europe Ltd. vs. First Choice Distribution (a firm) reported in 2000 WLR 586 observed as hereunder:- “I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross’s admirable opuscule, Statutory Interpretation , 3rd ed. (1995), pp. 93–105. He comments, at p. 103:
“In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.”
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course 24 which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters:
(1) the intended purpose of the statute or provision in question;
(2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and
(3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.
The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v. Wrotham Park Settled Estates [1980] A.C. 74, 105–106. In the present case these three conditions are fulfilled. Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd. v. Schindler [1977] Ch. 1, 18, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. None of these considerations apply in the present case. Here, the court is able to give effect to construction of the statute which accords with the intention of the legislature.”
42. Section 5 of the Code is saving clause which reads thus:-
“Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”
The interpretation of the word ‘affect’ came up for consideration before the Division Bench of this Court in Anand Singh Bisht vs. Union of India : 1985 (II) CHN 447. The Division Bench of this Court observed that Section 5 does not provide that if there is a Special Law the Code will not ‘apply’, but it says that the Code will not ‘affect’ the Special Law unless there is a specific provision to the contrary. ‘Affect’ means to produce a material influence upon or alteration in ; to prejudice ; to override. In the context of the plain meaning of the word ‘affect’ and the interpretation given by the Supreme Court in Section 5 of the Code, in the case of Maru Ram vs. Union of India reported in AIR 1980 SC 2147 in the following words that anatomy of this saving section is simple, yet subtle. Broadly speaking, there are three components to be supported. Firstly, the procedure Code generally governs the matter covered it. Secondly, if a special or local law exists covering the same area, the letter law will be saved and will prevail. Now comes the third component which may be clinching. If there is a specific provision to the contrary then that will override the special or local law.
43. It is needless to say that the Protection of Women from Domestic Violence Act, 2005 is a special law. At the risk of repetition, it is recorded 26 that Section 28 of the said Act clearly states that all proceedings under Section 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provision of the Code of Criminal Procedure, 1973. Thus, when the Special Act clearly lays down the procedure of trial of the proceedings under the said Act, there is absolutely no reason to apply any other procedure. The only exception being in Section 26 of the said Act is where a civil suit is pending between the parties, the aggrieved person can pray for relief under Section 18-23 in the said suit.
44. It will not be out of place to mention at this stage that the Hon’ble Supreme Court in Savitri vs. Govind Singh Rawat : (1985) 4 SCC 337 and Vijay Kumar Prasad vs. State of Bihar : (2004) 5 SCC 196 held that proceedings under Section 125 of the Code are quasi civil in nature. In Sanjeev Kapoor vs. Chandana Kapoor and Ors reported in AIR 2020 SC 1046, the Apex Court held that a petition under Section 482 is maintainable against any order given under Section 125.
45. In Rafiq Ahmedbhai Paniwala vs. State of Gujrat : (2019) 5 SCC 464, it is held by the Hon’ble Supreme Court that an order passed by the Executive Magistrate under Section 131 can be quashed by the High Court under Section 482 of the Code. The orders of Executive Magistrate in cases of Public Nuisance under Section 132-143 of the Code, though being quasi criminal, can be quashed by the High Court under Section 482 of the Code. Decision of the Allahabad High Court in L.J Bhatthi vs. The State of U.P & Ors : (2014) 1 ALL LJ 527 may be relied on in this regard.
46. In Kanak Deka and R.M Deka vs. State of Assam : (2012) 5 Gau Lr 415, an order under Section 145-148 can be assailed under the provision of Section 482 of the Code.
47. Similarly, there is no bar in invoking Section 482 in the cases under Protection of Women against Domestic Violence Act, 2005. In Suresh Ahirwar vs. Priya Ahirwar [M. Cr. C No.22777/2017], vide order dated 11th November, 2018, the Madhya Pradesh High Court quashed a proceeding under Section 482 of the Code where aggrieved person impleaded some persons as respondents in a proceeding under Section 12 of the said Act with whom she had no domestic relationship.
48. This being the interpretation of the statute, a court of the Judicial Magistrate or the Metropolitan Magistrate cannot pass any order in a proceeding under Section 125 of the Code or under the provision of Protection of Women against Domestic Violence where there is no relation or domestic relation exists between the parties. For example, an order of maintenance cannot be passed against a stranger. Similarly, an order of residence under Section 19 of the said Act cannot be passed against a landlord under the instance of an aggrieved person. Even a residence order cannot be passed against the father-in-law of the aggrieved person if the residence is not a shared household of the respondent along with his father (See Satish Chander Ahuja Vs. Sneha Ahuja reported in (2021) 1 SCC 414). If such application is filed by an aggrieved person, will it be a logical proposition that the respondent will not be able to nip the proceedings in bud without waiting for a prolonged trial or otherwise wait 28 for a considerable period till the disposal of trial? My considered reply is – such questions affecting the maintainability of the procedure itself can be decided by this Court under Section 482 of the Code of Criminal Procedure.
49. A similar view was taken by the Delhi High Court in Bijoy Verma Vs. State (NCT Delhi) reported in ILR 2011 Del 36, by Rajasthan High Court in Nisanth Hussain Vs. Sima Saddique (2012) SCC Online Raj 2873, by Karnataka High Court in Smt. Nagarthama Vs. M.S. Valithasharee (2016) SCC Online Kar 1437, Avinash Madhav Deshpande & Ors. vs. Madhuri Satish Deshpande & Ors. 2018 SCC online Bom 17170.
50. The next point for adjudication is as to whether an appeal under Section 29 shall lie against an order passed by the learned Judicial Magistrate or Metropolitan Magistrate upon an application filed by the respondent(s) challenging maintainability of the application under Section 12 of the said Act. There is again divergent opinion of different High Courts. It is, however pertinent to note that difference of opinion arose on the question as to whether ‘any’ order passed by the learned Magistrate on an application under Section 12 of the said Act is appealable or an order adjudicating the right to relief under Sections 18-22 and 23 is appealable. In Avijit Bhikaseth vs. State of Maharashtra : 2009 Cr.L.J 889 (Bom), the scope of appeal has been formulated as under:
(i) An appeal will lie under Section 29 of the said Act against the final order passed by the Magistrate under Sub-Section (1) of Section 12 of the said Act.
(ii) Under Sub-Section (2) of Section 23 of the said Act, the Magistrate is empowered to grant an ex-parte relief in terms of Sections 18-22 of the said Act. The power under Sub-Section (1) is a granting interim relief in terms of Section 18-22 of the said Act. Before granting an interim relief, under Sub-Section (1), an opportunity of being heard is required to be granted to the respondent.
(iii) An appeal will also lie against orders passed under Sub-section (1) and Sub-Section (2) of Section 23 of the said Act which are passed by the magistrate. However, while dealing with an appeal against the order passed under Section 23 of the said Act, the appellate court will usually not interfere with the exercise of discretion by the Magistrate. The appellate court will interfere only if it is found that the discretion has been exercised arbitrarily, expressly, perversely or if it is found that the court has ignored settled principles of law regulating grant or refusal of interim relief.
51. Therefore, an interlocutory order passed in a proceeding under Section 12 of the said Act, like that of issuance of notice upon the 30 respondents, summoning of witnesses, personal appearance of the respondent etc are not appealable under Section 29 of the said act.
52. The order on an application challenging maintainability of a proceeding under Section 12 of the said Act by the respondent or any of them is final in nature because if the learned Magistrate allows the application, it would mean dismissal of the application under Section 12 of the said Act by the aggrieved person. On the other hand, if such an application challenging maintainability is dismissed, rights of the respondents are affected. Therefore an order passed by learned Magistrate upon an application challenging maintainability of the proceeding under Section 12 of the said Act is, in my considered view, appealable under Section 29 of the Act. An aggrieved party may challenge the order of the court of appeal under Section 29 of the said Act in revision under Section 397 read with Section 401 of the Code.
53. A respondent can challenge maintainability of a proceeding under Section 12 of said Act without filling any such application before the learned Magistrate, in the High Court invoking its inherent jurisdiction under Section 482 of the Code. In other words, in order to invoke section 482 of the Code, it is not required as a precondition that the respondent shall have to file an application challenging maintainability of the proceeding before a learned Magistrate and then appeal and finally an application under Section 482 of the Code.
54. In view of the legal provisions and statutory right of revision, appeal etc contained in the said Act as well as the Code, invocation of Article 227 of the Constitution is illusory because of the existence of specific alternative remedy provided by the said Act and Code. The decision of the Hon’ble Supreme Court in D.N Bhattacharjee v. State of W.B reported in (1972) 3 SCC 424 may be relied on this regard.
55. For the reasons stated above let me summarize the findings herein below:-
(i) Respondent(s) can challenge maintainability of an application under Section 12 of the said Act filled by the aggrieved person before the Court of the learned Magistrate immediately after appearance in the proceeding by filing appropriate petition.
(ii) The Learned Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 of the said Act after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the said Act against the order passed by the learned Magistrate under the provision of Section 29 of the said Act before the learned sessions judge.
(iii) Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 of the Code shall lie.
(iv) Alternatively, a respondent may file an application under Section 482 of the Code of Criminal Procedure challenging maintainability of a proceeding under Section 482 of the Code for quashing of the proceedings immediately on receipt of notice before the High Court.
(v) An order upon an application challenging maintainability under Section 12 of the said Act shall not be assailed under Article 227 of the constitution.
56. In view of the above discussion, with all humility, I respectfully differ from the decision of the Hon’ble Single Judge of the Madras High Court in Dr. P. Pathmanathan v. V. Monica: (2021) 2 CTC 57.
57. Coming to the instant case, it is necessary to narrate in brief the factual situation involved:- The aggrieved person, the opposite party herein is the wife of one Pravin Sighania, son of the present petitioner. Their marriage was solemnized in 26th June, 2004 and in the said wedlock the opposite party gave birth to a child on 8th December, 2005. It is alleged that the aggrieved person was abused by her husband and the parents-in-law (petitioners herein) and was finally driven out from her matrimonial home on 20th January, 2014 as she could not fulfill the demand of dowry of the petitioners and their son. It is also alleged that after marriage the petitioners compelled the opposite party to handover of her all stridhan articles. The said stridhan articles are in the custody of the petitioners. Allegations were also made against the son of the petitioners that he openly stated to the opposite party that he would completely abandon her and remarry. She also filed a written complaint 33 before the police on the basis of which Phulbhagan P.S Case No.116 of 2017 dated 20th August, 2017 under Section 498A/406/34 of the Dowry Prohibition Act was initiated against the petitioners and their son.
58. In the said proceedings under Section 12 of the said Act the petitioners and their son filled an application challenging maintainability of the said proceedings stating, inter alia, that the petitioner has simultaneously moved two forums claiming for identical relief of maintenance, one before the learned Additional Chief Judicial Magistrate, Bidhannagar by filling an application under Section 125 of the code, which was registered as M-22 of 2017 and the proceeding under the Domestic Violence Act. According to the respondents/petitioners the petitioner/ opposite party cannot claim identical reliefs in two forums on the selfsame cause of action and continuation of the proceeding under the Domestic Violence Act shall cause double jeopardy.
59. The said application was disposed off by the learned Judicial Magistrate, Bidhannagar by rejecting the same.
60. The said order of rejection of the petition challenging maintainability of proceeding under Section 12 of the said Act is assailed in the instant Criminal Revision under Section 401 read with Section 482 read with Section 397 of the Code.
61. Without going into the merit of the instant revisional application, I would like to record that I have already held that an order allowing or rejecting an application for maintainability of a proceeding under Section 34 12 of the said Act is final in nature affecting the rights and/or liabilities of the parties in relation to the question as to whether the aggrieved person is entitled to get relief under Section 18-22 and Section 23(2) of the said Act.
62. In view of my specific finding made herein above, the impugned order is made appealable under Section 29 of the said Act.
63. For the reasons recorded, I don’t find any merit in the instant criminal revision.
64. However the petitioners are given liberty to file an appeal before the learned court of sessions subject to the Law of Limitation and while computing the period of limitation, the period from the date of institution of the instant proceeding and date of passing of the order shall be excluded.
65. The instant criminal revision is thus disposed of on contest, however without cost.

(Bibek Chaudhuri, J.)

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B. Judgment holding that a petition under Section 482 Cr.P.C., is not maintainable and is maintainable only if it is made under Article 227 of the Constitution of India: –

(i) Dr.P.Pathmanathan and Others Vs. Tmt.V.Monica
In the High Court of Judicature at Madras
Pronouncing Orders on : 18.01.2021
CORAM THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH
Crl.OP Nos.28458, 16411, 33643 of 2019, Crl.OP.Nos.16389, 16450, 17156, 19918, 20434 of 2020 and Crl.OP.Nos.45, 73, 138, 184, 191, 213, 216 , 233, 243, 332 and 349 of 2021 and
Crl.MP.Nos.8239,8240,18568,18569,15188,15189 of 2019, 6300, 6302, 6345, 6344, 6641 8174 8562 of 2020, 31, 32, 38, 39, 57,70, 74,99, 76, 78, 96, 95, 97, 98, 110,113,114,171 and 172 of 2021
Crl OP No.28458 of 2019
1.Dr.P.Pathmanathan
2.Dr.P.Jayagandhi
3.Dr.P.Mukil Sakthi ….Petitioners in Crl OP No.28458 of 2019
Vs.
1. Tmt.V.Monica
2.Minor R.Saithanya Krishna
Rep.by his mother V.Monica ETR Nagar,
Veeramani Complex,
Bargur Post & Taluk,
Krishnagiri District … Respondents in Crl.OP.No.28458 of 2019

Prayer in Crl OP No.28458 of 2019 : Criminal Original Petition filed under Section 482 of Cr.PC., to call for the records in D.V.No.71 of 2019 on the file of the Additional Mahila Court at Krisnnagiri, quash the proceedings therein in fas far as the petitioners herein are concerned.

Amicus Curiae: Mr.A.Ramesh, Senior Counsel
Mr.Srinivasan, Counsel
Mr.G.R.Hari, Counsel
Mr.M.Mohamed Riyaz Additional Public Prosecutor
For Petitioners in
Crl.OP.No.28458 of 2029 : Mr.C.S.Dhanasekaran
Crl.OP.No.33643 of 2019 : Mr.P.K.Naarayanan
Crl.OP.No.16411 of 2019 : Mr.K.P.Chandrasekaran
Crl.O.P.No.16389 of 2020 : Mr.S.Sithirai Anandam
Crl.OP.No.16450 of 2020 : M/s.KV Law Firm
Crl.OP.No.17156 of 2020 : Mr.V.Paarthiban
Crl.OP.No.19918 of 2020 : Mr.M.Prabhakar
Crl.OP.No.20434 of 2020 : Mr.N.A.Nissar Ahmed
Crl.OP.No.45 of 2021 : Mr.W.Camyles Gandhi
Crl.OP.No.73 of 2021 : Mr.P.Ravi Shankar Rao
Crl.OP.No.138 of 2021 : Mr.R.Surya Prakash
Crl.OP.No.184 of 2021 : Mr.J.Deliban
Crl.OP.No.191 of 2021 : Mr.S.Sathyaraj
Crl.OP.No.213 of 2021 : Mr.S.Saranraj
Crl.OP.No.216 of 2021 : Mr.P.Veeraraghavan
Crl.OP.No.233 of 2021 : Mr.M.Sankar
Crl.OP.No.243 of 2021 : Mr.Rameshkumar Chopra
Crl.OP.No.332 of 2021 : Mr.S.T.Varadarajalu
Crl.OP.No.349 of 2021 : M/s.Chennai Law Associates

For Respondents in
Crl.OP.Nos.28458 of 2029
& Crl.OP.No.33643 of 2019 : Mr.L.Mahendran
Crl.OP.No.16411 of 2019 : Mr.A.Satha Sivam
Crl.O.P.No.16389 of 2020 : M/s.Udaya PS Menon

COMMON ORDER
The issue that falls for consideration in these batch of cases relates to the jurisdiction of the High Court to quash a complaint under Section 12 of the Domestic Violence Act, 2005 (hereinafter referred to as “D.V. Act” or “the Act”) in exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” or “the Code).

2. This Court had directed the Registry to put up a number of cases filed between 2017 and 2020, and pending, for quashing applications under Section 12 of the D.V Act. This Court was surprised to learn that over 1000 such cases were pending. The D.V Act endeavors the Magistrate to dispose an application filed under Section 12 (1) within 60 days from the date of its first hearing. However, here is a distressing scenario where the proceedings, in a majority of the cases, have come to a grinding halt without any progress for more than 3 years on account of the pendency of the petitions on the file of this Court.

3. Upon a close reading of the D.V Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal color has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act.
4. On the flip side, this faulty understanding of the nature of the proceedings has also given rise to a tendency to misuse these proceedings as a weapon of harassment against parties who are unrelated to the proceedings by making them stand before a Magistrate like accused persons. It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act. This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring the situation under control by laying down certain guidelines for the disposal of the applications under Section 12 of the D.V Act.

5. Considering the importance of the issue involved, this Court sought for and obtained the assistance of the counsel appearing on behalf of the petitioners, and the senior members of the Bar who have made their respective submissions. This Court was provided with able assistance by the respective learned counsel in order to enable this Court to fully answer the various issues that have cropped up in these cases.

6. A brief excurse into the provisions of the D.V. Act is necessary to set the discussion in context. Domestic violence against women is a human rights and social rights issue that has engaged the attention of law and policy makers at global and national levels. The genesis of the D.V Act can be traced to the General Recommendation XII (1989) passed by the U.N Committee on the Elimination of Discrimination against Women. Taking note of Articles 2, 5, 11, 12 and 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), it was unanimously resolved by the Committee that State parties must put in place appropriate legislations to protect women against violence of any kind occurring within the family, at the work place or in any other area of social life. India ratified the CEDAW in 1993. However, a legislation to implement General Recommendation XII had to await another 12 years.

7. On account of the collective efforts of several national and international women’s organisations and the National Commission for Women, the Protection from Domestic Violence Bill, 2002 was tabled in the Lok Sabha and referred to a Department Standing Committee of the Ministry of Human Resource Development in the Rajya Sabha. The Committee submitted its 124th Report on the Bill (2002) which aimed at “providing a remedy under the civil law which is intended to preserve the family and at the same time provide protection to victims of domestic violence.” The object of the Act was to bridge the gap between the existing procedures in civil and criminal law by providing a civil remedy for a complaint of domestic violence without disrupting the harmony in the family. This is clear from the following statement made by the Secretary, Department of Women and Child Development which has been alluded to in the Report of the Standing Committee:
“Outlining the basic features of the Bill, he stated that the existing civil, personal or criminal laws leave certain gaps in addressing the issue of Domestic Violence. Under criminal law, if a husband perpetrates violence on his wife, she may file a complaint under Section~498 A of IPC. Similarly, under the civil law, if there is disharmony in a family and the husband and wife cannot live together, any one of them may file a suit for separation followed by divorce. However, the present Bill addresses such situation where there is some disharmony in the family but the situation has not yet reached a stage where either separation or divorce proceeding has become inevitable and the aggrieved woman also for some reasons does not want to initiate criminal proceedings against her perpetrator. Therefore, the Bill seeks to give the aggrieved woman an alternative avenue whereby she can insulate herself from violence without being deprived of the basic necessities of life and without disintegrating her family.”

8. The D.V Act was eventually passed into law as Act 43 of 2005 and came into force on 26.10.2006. The following passage from the Statement of Objects and Reasons appended to the D.V. Act unambiguously brings out the civil nature of the remedies contemplated under the Act :
“3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

9. Section 2(a) of the D.V. Act defines an “aggrieved person” to mean a woman who is, or has been, in a domestic relationship with the respondent who alleges to have been subjected to any act of domestic violence by the respondent. It is crucial to notice that the grievance of the “aggrieved person” is directed against a “respondent” as defined under Section 2(q) of the Act. Therefore, the relief sought for under Chapter IV of the D.V. Act is not in the nature of a formal accusation like in a criminal case, and the person against whom such a relief is sought for, is, therefore, not an accused before the Magistrate.

10. In Hiral P Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, the definition of a “respondent” in Section 2(q) was found to contravene Article 14 of the Constitution and was, therefore, read down. Section 2(q) as it now stands post the aforesaid decision will have to be read without the words “adult male” and without the proviso which has been deleted by the judgment of the Hon’ble Supreme Court.

11. Section 12 of the D.V. Act confers a right on i) the aggrieved person or ii) the protection officer (as appointed under Section 8) or iii) any other person on behalf of the accused person to present an application to the Magistrate for one or more reliefs under this Act. A Magistrate is defined in Section 2(i) as under:
“Magistrate” 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”

12. The various reliefs that the Magistrate can grant is set out in Chapter IV of the Act. Broadly speaking, these are
1. Protection Orders (Section 18)
2. Residence Orders (Section 19)
3. Monetary Reliefs (Section 20)
4. Custody Orders (Section 21)
5. Compensation Orders (Section 22)

13. Of all of the aforesaid reliefs, the breach of a protection order or an interim protection order alone is a cognizable and non~bailable offence vide Sections 31 and 32(1) of the Act. At first blush, this duality may seem perplexing. However, on a closer reading of the Act, the reason becomes clear if one notices Section 31(2) which states that the offence under Section 32(1) shall, as far as practicable, be tried by the same Magistrate who passed the order, the breach of which has been alleged to have been caused by the accused. The proceedings before the Magistrate would, therefore, partake the character of a civil proceeding while deciding an application under Chapter IV which may transform into a criminal proceeding while trying an offence under Chapter V of the Act. The amalgamation of civil and criminal jurisdictions in the Magistrate does not, however, destroy the nature and identity of these two separate and distinct jurisdictions.
14. From the aforesaid, it is clear that the respondent before the Magistrate is not an accused when they appear before him in response to a complaint under Section 12 of the Act. Section 31(2) of the Act expressly alludes to the term “accused” only when an offence i.e., a breach of a protection or interim protection order is alleged to have been committed by the respondent under Section 31(1). Secondly, criminality attaches under Section 31 only to a breach of a protection order under Section 18 or to an interim protection order under Section 23, or under Section 33 for failure of a Protection Officer to discharge their duties without sufficient cause.

15. The legal position that all of the reliefs contemplated under Chapter IV of the D.V Act are civil in nature is no longer res~integra in view of the decision of the Hon’ble Supreme Court in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774, wherein it was opined as under:
“12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498~A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:
“Introduction
The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498~A of the Penal Code, 1860. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the Protection of Women from Domestic Violence Bill was introduced in Parliament.
Statement of Objects and Reasons
1. Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (Cedaw) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
***
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following—
***
(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
13. Procedure for obtaining order of reliefs is stipulated in Chapter IV of the DV Act which comprises Sections 12 to 29. Under Section 12 an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person. The Magistrate is empowered, under Section 18, to pass protection order. Section 19 of the DV Act authorises the Magistrate to pass residence order which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or directing the respondent to remove himself from the shared household or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides, etc. Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act includes giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. Custody can be decided by the Magistrate which was granted under Section 21 of the DV Act. Section 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are of civil nature. Section 23 vests the Magistrate with the power to grant interim ex parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are of civil nature. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence.”
16. Even prior to the aforesaid decision, in Vijaya Baskar v. Suganya Devi, (2010) SCC Online Mad 5446, a learned single judge of this Court had come to the same conclusion and opined as under:
12. The term ‘civil law’ twice used therein is not an empty formality and that would exemplify and demonstrate, display and convey that the proceedings at the first instance should be civil in nature. The legislators were conscious of the fact that all of a sudden if criminal law is enforced on the husband and his relatives, certainly that might boomerang and have deliterious effect in the matrimonial relationship between the husband and wife. The object of the Act is that the victim lady should be enabled by law to live in the matrimonial family atmosphere in her husband/in~laws- house. It is not the intention of the said enactment to enable the lady to get snapped once and for all her relationship with her husband or the husband-s family and for that, civil law and civil remedies are most efficacious and appropriate and keeping that in mind alone in the Act, the initiation of action is given the trappings of civil proceedings which the authorities including the Magistrate responsible to enforce the said Act should not loose sight of”
17. This takes us to the next question: whether the proceedings before a Magistrate for reliefs under Chapter IV of the D.V Act are proceedings before a criminal court?
18. Before examining this issue, it is necessary to notice the nature of the jurisdiction exercised by the Magistrate under the D.V Act. The procedure to be followed by a Magistrate in dealing with an application for reliefs under Chapter IV is set out in Section 28 of the Act. A close reading of Section 28 would show that it draws a distinction between “proceedings” (Section 12, 18 to 23) and “offences” (Sections 31 & 33) and states that they will be governed by Cr.P.C. This general rule is subject to two exceptions. The first exception is contained in the opening words of Section 28(1) of the Act which begins with the expression “save as otherwise provided by this Act”, the effect of which is to exclude the application of the Code in areas where the procedure has been expressly set out in the D.V Act or the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as “D.V Rules” or “the Rules”). The second exception is found in Section 28(2) of the Act which is in the nature of a non~obstante clause expressly authorizing the Court to deviate from the procedure set out in Section 28(1) and lay down its own procedure for disposal of an application under Section 12 or a proceeding under Section 23(2) of the Act.

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.
20. 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.
21. Consequently, the stage for issuance of process contemplated under Section 204, Cr.P.C has no application to a proceeding under the D.V Act as the Magistrate, in an application under Section 12 of the D.V Act, is not taking cognizance of any offence, but is only dealing with an application for civil reliefs. Furthermore, as has already been pointed out, the respondent before the Court in an application under Section 12 of the Act is not an accused. Hence, the requirement of framing a charge does not arise either. (See V. Palaniammal v. Thenmozhi (2010) 1 MWN Cri 217).
22. In fact, Section 13 of the Act and Rule 12 of the Rules expressly provide that the Magistrate shall issue “a notice” fixing a date of hearing as prescribed in Form VII appended to the D.V Rules. The D.V Act and the Rules do not contemplate the issuance of a summons under Section 61, Cr.P.C. in an application under Section 12, although Rule 12(2)(c) enables resort to Chapter VI of the Cr.P.C as far as practicable for effective service of notices. In Vijaya Baskar v. Suganya Devi, (2010) SCC Online Mad 5446, a learned single judge of this Court expressly disapproved the practice of issuing summons in Domestic Violence cases, observing as under:
“9. A mere reading of Section 13 of the said Act would amply make the point clear that at the initial stage, the Magistrate was not justified in treating the respondents in this case as accused and as such, hereafter relating to applications under Section 12 of the Protection of Women from Domestic Violence Act, the Magistrate should not issue summons under Section 61 Cr.P.C. treating the respondents as accused. What is contemplated under Section 13 of the Act is a notice specifying the date etc., The endeavour should be on the part of the officer concerned is to deal with the matter gently and treating the respondents in a gentle manner and that should not be lost sight of. Unless the appearance of the respondents are absolutely necessary on a particular date, they should not be simply harassed by compelling them to appear as though they are offenders. The Magistrate should not loose sight of the fact that so long as the case is anterior to the protection order being passed, they should be treated only as respondents. However, after the order under Section 18 of the Act is passed and if there is violation, then the proceedings might get changed and become criminal proceedings. As such, the Magistrates hereafter would scrupulously adhere to the mandates contained in the Act itself.”
23. The procedure for dealing with an application under Section 12 has been set out in Rule 6(5). This rule states that an application under Section 12 shall be dealt with and the orders enforced in the same manner laid down in Section 125 of the Code. Section 125, Cr.P.C does not, however, contain the procedure and the mechanism for enforcement of maintenance orders. These are set out in Sections 126 and 128 of the Code, respectively. Section 126 (2) of the Code states that evidence in a proceeding under Section 125, Cr.P.C shall be recorded in the manner prescribed for summons cases i.e., in the manner prescribed in Chapter XX of the Code. Here again, Chapter XX, in the context of proceedings under the D.V Act, would apply with necessary modifications as the respondent before the Court is not an accused. The mode and manner of taking evidence alone is relevant and the provision in this regard is found in Section 254, Cr.P.C. Even here, the Court is given a wide degree of latitude and it may, in appropriate cases, depart from the aforesaid procedure. This is expressly made permissible by Section 28(2) of the Act. In fact, in Lakshmanan v. Sangeetha, 2009 (3) MWN Cri 257, a learned single judge held that it is open to the Magistrate to allow chief examination of the witnesses by an affidavit although no such procedure is prescribed in Chapter XX of the Code.
24. A close reading of the aforesaid provisions would show that the procedure set out in the D.V Act and the Rules makes a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the Cr.P.C. save in the case of offences under Section 31 & 33 of the Act. Thus, the application of the Cr.P.C. to an application under Section 12 is residuary in nature by virtue of the mandate of Section 28(1) of the D.V Act.
25. In the aforesaid backdrop we may now turn to the issue of whether the Court of Magistrate acts as a criminal court while exercising powers under the Act and the Rules. It has already been pointed out that all the reliefs contemplated under Chapter IV are civil in nature. The term “criminal court” has not been defined under the Code. Section 6 sets out the classes of Criminal Courts, and the Court of a Magistrate is undoubtedly a Court falling within that class. However, it is well settled that to constitute a Criminal Court, it is not sufficient that it is one of the Courts mentioned under Section 6, Cr.P.C. It must also be acting as a Criminal Court. (See R. Subramanian v. Commissioner of Police, AIR 1964 Madras 185).
26. The conferment of civil jurisdiction on Magistrates is not a new phenomenon. In V.B D’Monte v. Bandra Borough Municipal Corporation, AIR 1950 Bom 397, the question before the Full Bench of the Hon’ble Bombay High Court was whether a determination of the rate of tax by a Magistrate under the Bombay Municipal Boroughs Act was revisable by the High Court on its criminal side. The Full Bench held that a Magistrate in dealing with rates and taxes was not dealing with any criminal matter and hence was not an inferior Criminal Court. Holding that an order passed by a Sessions Judge exercising civil jurisdiction was amenable to a revision on the civil side of the High Court, Chief Justice Chagla opined as under:
“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. That is the only limited question that we have to consider in this case. As I stated before, we are not considering whether a revisional application lies under s. 435 of the Criminal Procedure Code or under s. 115 of the Civil Procedure Code. All that we are considering is whether a special jurisdiction conferred upon us is of a civil or of a criminal character; and on that question there can be no dispute that it is of a civil nature.”

The test, formulated by Chagla, CJ in the aforesaid case, focuses on the nature of the proceeding before the Criminal Court and holds that where a criminal Court exercises civil jurisdiction, it is not necessarily an inferior Criminal Court within the meaning of Cr.P.C.,
27. The aforesaid test, in the context of a civil proceeding, was reiterated by a Division Bench of the Hon’ble Allahabad High Court in State of Uttar Pradesh v. Mukhtar Singh, AIR 1957 All 505, wherein it was observed thus:
“128. Whether a proceeding is civil or not depends, in my opinion, on the nature of the subject~matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. The expression “civil rights” in a broad sense comprises the entire bundle of private rights that a human being or any person recognises by law as a juristic entity might, as such, possess under law and for the recognition, declaration or enforcement of which law makes a provision.”
28. The distinction between a “civil” and “criminal” proceeding was explained by a Constitution Bench of the Hon’ble Supreme Court in S.A.L Narayan Row and Another v. Ishwarlal Bhagwandas, AIR 1965 SC 1818, wherein it was observed thus:
“The expression “civil proceeding” 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 a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed.”
The Supreme Court eventually formulated the following test for examining the character of a proceeding before a Court or authority:
“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.”
The true test, therefore, depends on the character of the proceeding i.e., the nature of the right violated and the relief claimed thereon, and not the nature of the Tribunal adjudicating such a proceeding. Merely because a Magistrate is called upon to adjudicate and enforce civil rights in an application under Chapter IV of the D.V Act, it does not follow that the proceeding before it is of a criminal character. A Court of Magistrate not exercising functions or determining cases of a criminal character cannot be said to be a Criminal Court. (See also Mammoo v. State of Kerala, AIR 1980 Ker 18 (FB).

29. In Dargah Committee, Ajmer v State of Rajasthan, AIR 1962 SC 574, the Ajmer Municipal Committee had issued a notice for recovery of tax, and had followed it up with an application before the Magistrate under Regulation 234 of the Ajmer~Merwara Municipalities Regulation. The Magistrate passed an order directing the payment of dues. This order was carried on appeal to the Sessions Judge, and then to the High Court by way of a revision all of which were unsuccessful. Dismissing the appeals the Hon’ble Supreme Court held:
“In any event it is difficult to hold that the Magistrate who entertains the application is an inferior criminal court. The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the movable property of the defaulter. 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 proceedings, 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. In the present appeal it is unnecessary to consider what would be the character of the proceedings before a competent civil court contemplated by the proviso. Prima facie such proceedings can be no more than execution proceedings.”
The Supreme Court affirmed the view that a Magistrate exercising jurisdiction to grant reliefs of a civil nature does not function as a Magistrate exercising authority under Cr.P.C., and consequently was not an inferior criminal court.
30.To the same effect is the decision of the Privy Council in Annie Besant v. Advocate General of Madras, AIR 1919 PC 31, where the Board examined the nature of the jurisdiction exercised by the Magistrate under the Press and Registration of Books Act, 1867, and opined as follows:
“It is not easy to see how these proceedings could be deemed criminal proceedings within the Code of Criminal Procedure. They are not proceedings against the Appellant as charged with an offence. They are at the utmost proceedings which rendered the Appellant if she should thereafter commit a criminal or forbidden act, open to a particular form of procedure for a penalty.”

The Privy Council concluded that the order passed under the Press and Registration of Books Act, 1867 was, therefore, not amenable to a revision under the Cr.P.C.

31.The fact that a Magistrate may, at a subsequent stage under Chapter V try an offence under Section 31 of the Act for breach of an order under Sections 18 or 23 of the Act does not render a proceeding under Chapter IV of the Act as one before a criminal court. A Division Bench of the Allahabad High Court in, Mt Mithan v. Municipal Board of Oral and State of U.P., AIR 1956 All 351, has clarified this aspect and pointed out as under:
“63. If once an authority acts as an inferior criminal Court, a subsequent proceeding before it may also be said to be one before an inferior criminal Court, but it does not follow that because a subsequent proceeding is before an inferior criminal Court, the earlier proceeding also is, especially when the two proceedings are entirely distinct from each other though one follows the other.”

In view of the above, the stage of deciding an application under Section 12 is entirely different from the stage where the Magistrate tries an offence under Section 31 or 33 of the Act. Merely because the Court of Magistrate is a criminal court in the latter stage, it does not follow that it is a criminal court in the former stage as well.
32. In view of the decision in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774, it is beyond any cavil that an application before a Magistrate for one or more reliefs under Chapter IV, all of which, are civil in nature, are proceedings to vindicate the civil rights of an aggrieved person. Applying the test laid down in S.A.L Narayan Row’s case (cited supra), it is clear that the nature of proceeding before the Magistrate under Chapter IV of the D.V Act is purely civil in nature. As the jurisdiction exercised by the Magistrate does not partake the character of a criminal proceeding the result is that a Magistrate cannot be said to be exercising criminal jurisdiction as a Criminal Court while exercising jurisdiction under Chapter IV of the D.V Act.
33. This precise question was examined by the Kerala High Court in Baiju v. Latha, (2011) 3 KLJ 331, wherein it was observed as under:
16. No doubt, the reliefs which the Magistrate is required and authorised to grant under certain provisions of the Act are of a civil nature. But, it cannot be said that the Magistrate while exercising those functions is not acting as a criminal court. The Magistrate while exercising power under the Act acts as a criminal court, though the proceeding, or the nature of relief that may be granted under certain provisions are of a civil nature. Jurisdiction is conferred under the Act on the ‘Magistrate’ and the expression ‘Magistrate’ is defined in Sec. 2(i) of the Act as meaning the Judicial Magistrate of first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code 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. It is also apposite to refer to Sec. 28 of the Act which states that except as otherwise provided in the Act, all proceedings under Secs. 12, 18, 19, 20, 21, 22 and 23 and offence under Sec. 31 of the Act are to be governed by the provisions of the Code. Even as regards proceedings other than mentioned above, I do not find anything in the Act which excludes the procedure laid down in the Code. Atleast for proceedings under Secs. 12, 18 to 23 and 31 of the Act the procedure before learned Magistrate is governed by the provisions of the Code.”

34. Unfortunately, in concluding as above, the attention of the Kerala High Court was not drawn to the D.V Rules, 2006 which prescribes an entirely different procedure from that prescribed in the Code. It has already been pointed out that the application before the Magistrate is not a complaint under Section 2(d) of the Cr.P.C with the result that the procedure set out in Sections 190(1)(a) and 200 ~204, Cr.P.C has no application to such cases. The Kerala High Court, after alluding to the provisions of the Act observes:
“These provisions also indicate that the court of Magistrate or Metropolitan Magistrate acts as a criminal court while discharging functions under the Act though some of the reliefs it could grant under the Act are of a civil nature.”

As pointed out supra, after the decision in Kunapareddy, there is no room for doubt that all, and not merely some, of the reliefs under Chapter IV are civil in nature. The Kerala High Court in Baiju (cited supra), has also opined as under:
“Sec. 29 of the Act provides that from any order that the Magistrate may pass, an appeal shall lie to the ‘Court of Sessions’. It is relevant to note that the Act does not say what procedure the Court of Sessions is to follow while entertaining and hearing an appeal preferred under Sec. 29 of the Act. The provisions in the Code regarding admission, hearing and disposal of the appeals must apply to an appeal preferred to the Court of Sessions under Sec. 29 of the Act. Under Sec. 29, appeal lies to the ‘Court of Sessions’ and not to the Sessions Judge. An appeal is provided to the Court of Sessions under Sec. 29 since the court of the Magistrate whose order is under challenge is a criminal court inferior to the Court of Sessions. I therefore hold that the Magistrate exercising functions under the Act acts as a criminal court inferior to the Court of Sessions and the High Court.”
35. An appeal under Section 29 of the D.V Act is distinct from an appeal under Chapter XXIX of Cr.P.C. An appeal to a Court of Session from an order of the Magistrate exercising civil jurisdiction is not novel. The nature of the jurisdiction exercised by the appellate court in appeals arising out of orders passed by Magistrates exercising civil jurisdiction was expressly considered by the Full Bench of the Bombay High Court in V.B. D-Monte (cited supra), wherein it was observed thus:
“Various decisions were cited at the bar, and I shall briefly consider them. But as I shall point out these decisions were more concerned with deciding whether a matter lay in revision under s. 435 of the Criminal Procedure Code or under s. 115 of the Civil Procedure Code. In all these cases no special jurisdiction was conferred upon the High Court, and therefore the High Court had to determine the nature and extent of its revisional jurisdiction; and in order to determine that the learned Judges who decided those cases had to consider whether the applications lay under s. 435 of the Criminal Procedure Code or under s. 115 of the Civil Procedure Code. The decision which has been now accepted as laying down the correct principle and which had been followed in several decisions of this Court is to be found in Lokmanya Mills Ltd. v. Municipal Borough, Barsi. [(1939) 41 Bom. L.R. 937.] In that case the decision under s. 110 was given by the First Class Magistrate, Barsi, and a revision under s. 111 lay to the Sessions Court. The question then arose as to whether any revisional application lay from the decision of the Sessions Court, and Sir John Beaumont, sitting with Mr. Justice N.J. Wadia, held that a revisional application lay under s. 115 of the Civil Procedure Code; and in coming to that conclusion the learned Chief Justice observed that “the question of liability to tax is a purely civil matter, and the Magistrate hearing an appeal against a demand notice is a criminal Court, so that an appeal lies from him to the Sessions Court, and not to the District Court, and revision lies from the Sessions Court to the High Court as a civil revisional application. The learned Chief Justice approved of the earlier decision in Ahmedabad Municipality v. Vadilal [(1928) 30 Bom. L.R. 1084.] which lays down that the Sessions Judge in a case of that sort was exercising powers of a civil Court and not of a criminal Court and therefore no revision lay under the Criminal Procedure Code. Therefore the clear view taken by the learned Judges who decided that case was that even a criminal Court may exercise civil jurisdiction and may dispose of civil matters if so authorised by a statute.”

36. Thus, it is obvious that the proceedings before the Sessions Court, in an appeal under Section 29 from an order passed under Chapter IV of the D.V Act, does not lose its character as a civil proceeding. It is a settled legal position that an appeal is a continuation of the original proceeding. It follows that a Sessions Judge exercising powers under Section 29 of the D.V Act would have the same powers as a Magistrate while dealing with an application under Section 12 of the Act. When the original proceeding partakes the character of a civil proceeding, it is difficult to appreciate how an appeal under Section 29, arising out of such an original proceeding, could metamorphosize into a criminal proceeding before the Court of Sessions. Thus, the aforesaid decision of the Kerala High Court in Baiju (cited supra), with all due respect, cannot be said to have laid down the correct law.

37. The matter can be examined from another angle. The very incorporation of Section 29 in the D.V Act is a pointer that the remedy of a statutory appeal is a separate and independent remedy conferred exclusively by the D.V Act, for if the proceeding were to be governed by the Code, the right of appeal would be regulated exclusively by Chapter XXIX Cr.P.C. Broadly speaking, the scheme of appeals under Chapter XXIX are wholly inapplicable as the orders passed by the Magistrate under Chapter IV of the D.V Act do not deal with any acquittal or conviction of an accused. Similarly, the powers enumerated under Section 386 Cr.P.C. deal with the powers of an appellate court in an appeal against conviction/acquittal and does not have any application to an appeal under Section 29 of the D.V Act.

38. The Hon’ble Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, Civil Appeal 2483 of 2020 decided on 15.10.2020, has proceeded on the basis that a proceeding under Section 19 of the D.V Act is a “criminal proceeding”. The eight questions framed for consideration in Satish Chander Ahuja (cited supra), have been set out in paragraph 27 of the said judgment and none of those questions were concerned with the character of the proceedings under the D.V Act. It is well settled that the ratio of a judgment cannot be decided by picking out words or sentences from the judgment averse to the context under question. When the nature of proceedings before the Magistrate under the D.V Act did not consciously engage the attention of the Hon’ble Supreme Court, it cannot be said to be a part of the ratio thereby constituting a binding precedent under Article 141 of the Constitution of India, (See Nevada Properties Private Limited v State of Maharashtra, (2019) 20 SCC 119).
39. In fact, the litmus test as to whether a proceeding is civil or criminal in nature has been authoritatively settled by a three judge bench of the Hon’ble Supreme Court in Ram Kishan Fauji v. State of Haryana, (2017) 5 SCC 533. The Hon’ble Supreme Court reiterated the test laid down in S.A.L Narayan Row (cited supra), and opined as under:
“31. The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as criminal proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of (i) sentence, and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peace and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed.”
The Hon’ble Supreme Court eventually concluded that it is conceptually fallacious to determine the nature of the proceeding with reference to the nature of the Court, since the litmus test is the nature of the proceeding, nothing more nothing less. Applying the aforesaid test, it is beyond a pale of controversy that all of the reliefs claimed under Chapter IV of the Act are civil in nature for the enforcement of civil rights, as was held by the Supreme Court in Kunapareddy (cited supra) and a proceeding before the Magistrate would, therefore, partake the character of a civil and not a criminal proceeding.

40. As the proceedings before a Magistrate exercising jurisdiction under Chapter IV is not a criminal proceeding before a Criminal Court, the next question is whether a petition under Section 482 of the Code would lie to quash an application under Section 12 of the D.V. Act. It is settled law that a petition under Section 482, Cr.P.C would lie only against an order of a criminal court. In State of W.B. v. Sujit Kumar Rana, (2004) 4 SCC 129, the Supreme Court has opined as under:
“33. From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court amounts to abuse of the process of court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a court; which in the context of the Code of Criminal Procedure would mean “a criminal court” or whence a power is exercised by the court under the Code of Criminal Procedure.”

41. As pointed out by a Division Bench of this Court in Rajamanickam v State of Tamil Nadu, 2015 (3) MWN Cri 379, Section 482 Cr.P.C preserves only the inherent criminal jurisdiction of the High Court. Thus, a petition under Section 482, Cr.P.C would be maintainable only if the order complained of is passed by a criminal Court or by a Court in exercise of powers under the Cr.P.C. Quashing an application under Section 12 of the D.V Act does not fall in either category, as what the Court is called upon to do at that stage is to interdict the exercise of civil jurisdiction by the Magistrate at the threshold. As indicated supra, since the Magistrate is exercising only a civil jurisdiction in granting reliefs under Chapter IV of the Act, it follows that a Magistrate is not a criminal court for the purposes of proceedings under Chapter IV of the Act. It follows that an application under Section 482, Cr.P.C does not lie to quash an application under Section 12 of the D.V Act.

42. This does not, however, mean that an aggrieved respondent is remediless. The Magistrate exercising jurisdiction under Chapter IV of the D.V Act, is certainly a subordinate Court for the purposes of Article 227, and a petition under Article 227 of the Constitution would still be available challenging the proceedings under Chapter IV of the D.V Act, in an appropriate case.

43. As a matter of fact, in M. Muruganandam v. M. Megala, (2011) 1 CTC 841, this Court had entertained a challenge under Article 227 of the Constitution to an application under Section 12 of the D.V. Act. V. Ramasubramanian, J (as he then was) opined as under:
“11. At the outset, a preliminary issue was raised as to whether the Revisional Jurisdiction of this Court under Article 227 of the Constitution can be invoked against the orders of the Magistrate, passed under the provisions of the Protection of Women from Domestic Violence Act, 2005. But the issue was settled by the Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. In paragraph~108 of the said decision, the Supreme Court gave an illustrative list of cases where this Court could exercise either the extraordinary jurisdiction under Article 226 or the inherent powers under Section 482, Cr.P.C. The said decision was followed in P.S. Rajya v. State of Bihar, JT 1996 (6) SC 480 and in Pepsi Foods Ltd v. Special Judicial Magistrate, 1998 (5) SCC 749. In Pepsi Foods case, the Apex Court held that the nomenclature under which a Petition is filed is not quite relevant and that it would not debar the Court from exercising its jurisdiction. In paragraph 29 of its decision in Pepsi Foods case, the Supreme Court stated as follows:
“No doubt a Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless. But that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the Complaint does not make out any case against him……”

12. Again in State of Orissa v. Debendra Nath Padhi, 2005 (1) CTC 134, the principles laid down in Bhajan Lal were reiterated and the Apex Court referred both to Section 482, Cr.P.C., and to Article 226 of the Constitution.
13. Therefore, it is clear that this Court can exercise its Revisional powers under Article 227 of the Constitution, in respect of the orders passed under the Protection of Women from Domestic Violence Act, 2005. However, it will always be subject to the restrictions, subject to which the power has to be exercised. As a matter of fact, it is stated by the learned Counsel for the Petitioners that the Petitioners actually filed a Petition under Section 482, Cr.P.C., but a doubt was raised about the maintainability of the same on the ground that the proceedings under the Act, are not purely Criminal proceedings. Therefore, the Petitioner has come up with the above Revision under Article 227 of the Constitution and the doors of this Court, cannot be shut on all sides to the Petitioners.”

44. It is entirely true that the nomenclature of the petition is not decisive of the jurisdiction of the Court. Section 482, Cr.P.C merely saves the inherent power of the High Court to make such orders as may be necessary to a) give effect to an order under this Code; or b) prevent abuse of process of any Court; or c) otherwise secure the ends of justice. It is well settled that this section has not given any new power to the High Court but has merely preserved the power inherently possessed by every High Court as a superior Court of record. As a highest Court of Justice in the State, the High Court exercises a visitorial or supervisory jurisdiction over all Courts in the State. However, the plenitude of the inherent power under Section 482, Cr.P.C does not extend to annul proceedings which are not before a Criminal Court. As pointed out supra, to constitute a criminal court, it is not sufficient that the Court is one of the Courts enumerated under Section 6 Cr.P.C, it is also necessary that the proceedings before it are criminal in character. If the proceeding before the Court is civil in nature, then it cannot be said that the Court is a Criminal Court exercising criminal jurisdiction for the purposes of Section 482, Cr.P.C.

45. The decision in Muruganandam (cited supra) is, therefore, an authority for the proposition that a petition under Article 227 of the Constitution would lie to quash an application under the D.V Act in an appropriate case. This being a judgment of a bench of co~ordinate strength, is also binding on this Court. The Kerala High Court has also taken the same view in two of its later decisions in Santhosh v. Ambika.R, (2015) SCC Online Ker 26542 and T. Rajan v Vani.P, (2020) SCC Online Ker 25170. In a recent decision, Latha P.C v State of Kerala, 2020 (6) KLT 496, the Kerala High Court held that an application under Section 482 Cr.P.C is not maintainable to quash a complaint under Section 12 of the D.V. Act.
46. A Division Bench of the Bombay High Court had reached the same conclusion in Sukumar Pawanlal Gandhi v Bhakti Sushil Gandhi, (2016) SCC Online Bom 12942. 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 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, (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.

47. 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, 2016 2 RCR (Cri) 421.

48. 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 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.”
50. 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.

51. It has been brought to the notice of this Court that in several cases, Magistrates continue to mechanically follow the drill of the procedure set out in Sections 190(1)(a), 200 to 204, Cr.P.C and issue summons as if the respondents before it are accused of offences. To compound the confusion, in most of these cases all and sundry are roped in as respondents before the Magistrate. These respondents, upon being summoned, file petitions under Section 205, Cr.P.C to dispense with their personal attendance and thereafter file petitions under Section 482, Cr.P.C to obtain a stay of all further proceedings in the case, and in most cases their personal appearance before the Magistrate is also dispensed with, and the case is then thrown into the backburner. All of this, it appears, is on account a perceptible lack of clarity in the procedure followed by the Magistrates while deciding applications under the Act.

52.While it is no doubt true that the Court of Magistrate is invested with a great deal of flexibility under Section 28(2) of the Act to devise its own procedure for disposal of an application under Section 12 of the Act, the twin principles of consistency and clarity dictate that this Court must now lay down some broad guidelines, in exercise of its power of superintendence under Article 227 of the Constitution & in respect of Judicial Magistrates under Section 483 of the Cr.P.C, for the proper disposal of applications under Section 12 of the D.V Act. A corrective mechanism is available in the D.V Act itself for aggrieved parties to agitate their grievances and obtain redress.
The following directions are, therefore, issued:
i. An application under Section 12 of the D.V. Act, is not a complaint under Section 2(d) of the Cr.P.C. Consequently, the procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under the D.V Act. The Magistrate cannot, therefore, treat an application under the D.V Act as though it is a complaint case under the Cr.P.C.

ii. An application under Section 12 of the Act shall be as set out in Form II of the D.V Rules, 2006, or as nearly as possible thereto. In case interim ex~parte orders are sought for by the aggrieved person under Section 23(2) of the Act, an affidavit, as contemplated under Form III, shall be sworn to.

iii. The Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of the D.V Act. Instead, the Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to the D.V Rules, 2006. Service of such notice shall be in the manner prescribed under Section 13 of the Act and Rule 12 (2) of the D.V Rules, and shall be accompanied by a copy of the petition and affidavit, if any.

iv. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V Rules, 2006, makes it clear that the parties can appear before the Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West Bengal (2009 SCC Online Cal 1903).

v. If the respondent(s) does not appear either in person or through a counsel in answer to a notice under Section 13, the Magistrate may proceed to determine the application ex~parte.

vi. It is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act. As pointed out by this Court in Vijaya Baskar (cited supra), there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate.

vii. As there is no issuance of process as contemplated under Section 204, Cr.P.C in a proceeding under the D.V Act, the principle laid down in Adalat Prasad v Rooplal Jindal (2004 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will not apply to a proceeding under the D.V Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V Act for effective redress (See V.K Vijayalekshmi Amma v Bindu. V, (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V Act, at the threshold before this Court under Article 227 of the Constitution.

viii. Similarly, any party aggrieved may also take recourse to Section 25 which expressly authorises the Magistrate to alter, modify or revoke any order under the Act upon showing change of circumstances.

ix. In Kunapareddy (cited supra), the Hon’ble Supreme Court upheld the order of a Magistrate purportedly exercising powers under Order VI, Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”), to permit the amendment of an application under Section 12 of the D.V Act. Taking a cue therefrom, it would be open to any of the respondent(s), at any stage of the proceeding, to apply to the Magistrate to have their names deleted from the array of respondents if they have been improperly joined as parties. For this purpose, the Magistrate can draw sustenance from the power under Order I Rule 10(2) of the C.P.C. A judicious use of this power would ensure that the proceedings under the D.V Act do not generate into a weapon of harassment and would prevent the process of Court from being abused by joining all and sundry as parties to the lis.

x. The Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by this Court nearly a decade ago in Vijaya Baskar (cited supra). Precedents are meant to be followed and not forgotten, and the Magistrates would, therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the D.V Act.

xi. In Satish Chandra Ahuja (cited supra), the Hon’ble Supreme Court has pointed out the importance of the enabling provisions under Section 26 of the D.V Act to avoid multiplicity of proceedings. Hence, the reliefs under Chapter IV of the D.V can also be claimed in a pending proceeding before a civil, criminal or family court as a counter claim.

xii. While recording evidence, the Magistrate may resort to chief examination of the witnesses to be furnished by affidavit (See Lakshman v Sangeetha, 2009 3 MWN (Cri) 257. The Magistrate shall generally follow the procedure set out in Section 254, Cr.P.C while recording evidence.
xiii. Section 28(2) of the Act is an enabling provision permitting the Magistrate to deviate from the procedure prescribed under Section 28(1), if the facts and circumstances of the case warrants such a course, keeping in mind that in the realm of procedure, everything is taken to be permitted unless prohibited (See Muhammad Sulaiman Khan v Muhammad Yar Khan, 1888 11 ILR All 267).

xiv. A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v. Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538.) In normal circumstances, the power under Article 227 will not be exercised, as a measure of self~imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.

53. In the result, these petitions under Section 482, Cr.P.C., are not maintainable, and will accordingly stand dismissed. The petitioners will be at liberty to approach the Magistrate, and work out their remedies in accordance with the directions laid down, supra. The Magistrates shall endeavour to complete the proceedings within a period of three months from the date of receipt of a copy of this order.

54. The Registry is directed to circulate a copy of this order to the Principal District and Sessions Judges in the State, who in turn, will do the needful to bring the directions laid down in this order to the notice of the Judicial Magistrates, in their respective Sessions Divisions, for proper disposal of the applications filed under Section 12 of the D.V. Act.

55.Before drawing the curtains, this Court will be failing in its duty if it does not acknowledge the assistance rendered by all the learned counsel. A special mention is also due to my interns for their thorough research on the various questions arising in this case. Consequently, connected miscellaneous petitions are closed.

*************************************************

 

 

C. Sections 406 to 412 of Cr.P.C., (Power of Transfer), Section 482 (Inherent Powers of High Courts) and 483 of Cr.P.C. (Power of Superintendence of High Courts).

Judgment of Hon’ble Mr. Justice S.Vaithiyanadhan, holding that Transfer under Article 227 of the Constitution of India is maintainable :-

In the High Court of Judicature at Madras
Dated: 13.02.2020
Coram:
The Honourable Mr.Justice S.Vaidyanathan
Transfer C.M.P.No.51 of 2019 and
C.M.P. No.1718 of 2019
Revathi Vs. Srinath

Tr.C.M.P. filed under Section 24 of C.P.C., to withdraw the case in H.M.O.P.No.37 of 2018 on the file of Sub Court at Myladudurai and transfer the same to Sub Court at Kumbakonam by allowing the transfer petition.
For Petitioner : Mr.M.Pari
For Respondent : R.Marudhchalamurthy
ORDER
The petitioner herein/wife has come forward with the present transfer civil miscellaneous petition, for transferring H.M.O.P. No.37 of 2018 pending on the file of Sub Court at Myladudurai and transfer the same to Sub Court at Kumbakonam.
2. It is submitted that, this court, vide order dated 10.01.2020 http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 made in Tr.C.M.P. No.52 of 2019 has already directed transfer of H.M.O.P. No.11 of 2018 from the file of Sub Court, Mayiladuthurai to the file of Sub Court, Kumbakonam. The case that was transferred from Sub Court, Mayiladuthurai to Sub Court, Kumbakonam is a divorce petition filed by the husband. In the present case on hand, namely H.M.O.P. No.37 of 2018, the wife has sought for restitution of conjugal rights and that the matters have got to be tried together and that there cannot be any separate order in the issue.
3. Taking note of the submissions of both parties, and that already divorce petition has been transferred from Sub Court, Mayiladuthurai to Sub Court, Kumbakonam, H.M.O.P. No.37 of 2018 is also withdrawn from the file of Sub Court, Mayiladuthurai and transferred to the file of Sub Court, Kumbakonam, to be tried along with H.M.O.P. No.11 of 2018. The Sub Court, Kumbakonam, is expected to conclude the trial, as expeditiously as possible, without adjourning the matter beyond 45 working days at any point of time, to bring the issue to a logical end.
4. Even though the respondent referred to a Crl. O.P. No.449 of 2018 filed for transferring D.V.C. No.1 of 2018, as the matter is not before this court, it is open to the petitioner to file a necessary petition http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 under Article 227 of the Constitution of India, to transfer the DVAC matter to any one of the courts mentioned under Section 26 of the Protection of Women from Domestic Violence Act, so that all the three matters can be tried and disposed of.
5. For the sake of convenience, Sections 24 and 151 of CPC, Section 26 of D.V.Act, Section 482 of Cr.P.C. and Article 227 of the Constitution of India are extracted below: Sections 24 and 151 of CPC read thus:
24. General power of transfer and withdrawal? (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage?
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and?
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn (3) For the purposes of this section,?
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) “proceeding” includes a proceeding for the execution of a decree or order.] (4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
151. Saving of inherent powers of Court? Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Section 26 of Protection of Women from Domestic Violence Act, 2005, reads thus:
26.Relief in other suits and legal proceedings – (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
Section 482 of the Criminal Procedure Code, reads thus:
482. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Article 227 of the Constitution of India, reads thus:
227. Power of superintendence over all courts by the High Court. (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
6. Though Domestic Violence cases filed under the provisions of D.V.Act are civil in nature, the powers have been conferred to the Social Welfare Officer, who is empowered to file a complaint only before the jurisdictional Magistrate, based on which, the Criminal Courts get jurisdiction to try the civil matter. Taking note of Section 26 of D.V.Act, the powers should have been given to the Social Welfare Officer to make a complaint to other Courts mentioned under Section 26. But, unfortunately Courts cannot legislate and this Court can only suggest for amendment of the provisions in the light of the judgment of the Hon’ble Apex Court in the case of Krishna District Co-operative Marketing Society Limited vs. N.V.Purnachandra Rao, (1987) 4 SCC 99 and the relevant paragraph is extracted hereunder: http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 “11. We may incidentally observe that the Central Act itself should be suitably amended making it possible to an individual workman to seek redress in an appropriate forum regarding illegal termination of service which may take the form of dismissal, discharge, retrenchment etc. or modification of punishment imposed in a domestic enquiry. An amendment of the Central Act introducing such provisions will make the law simpler and also will reduce the delay in the adjudication of industrial disputes. Many learned authors of books on industrial law have also been urging for such an amendment. The State Act in the instant case has to some extent met the above demand by enacting section 41 providing for a machinery for settling disputes arising out of termination of service which can be resorted to by an individual work- man. In this connection we have one more suggestion to make. The nation remembers with gratitude the services rendered by the former Labour Appellate Tribunal which was manned by some of our eminent Judges by evolving great legal principles in the field of labour law, in particular with regard to domestic enquiry, bonus, gratuity, fair wages, industrial adjudication etc. The Industrial Disputes (Appellate Tribunal) Act, 1950 which provided for an all-India appellate body with powers to hear appeals against the orders and awards of Industrial Tribunals and Labour Courts in India was repealed in haste. If it had continued by now the labour jurisprudence would have developed perhaps on much more satisfactory lines than what it is today. There is a great need today to revive and to bring into existence an http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 all- India Labour Appellate Tribunal with powers to hear appeals against the decisions of all Labour Courts, Industrial Tribunals and even of authorities constituted under several labour laws enacted by the States so that a body of uniform and sound principles of Labour law may be evolved for the benefit of both industry and labour throughout India. Such an appellate authority can become a very efficient body on account of specialisation. There is a demand for the revival of such an appellate body even from some workers’ organisations. This suggestion is worth considering. All this we are saying because we sincerely feel that the Central Act passed forty years ago needs a second look and requires a comprehensive amendment.”
7. This Court is of the view that the Social Welfare Officer must be empowered to lodge a complaint to other Courts mentioned under Section 26 of D.V.Act than the one of the jurisdictional Magistrate. Since the powers have been delegated to the jurisdictional Magistrate to try the civil cases filed under the D.V.Act, the process of reunion is completely ruined. The Government should think of amending the provisions so as to empower the Social Welfare officer to prefer a complaint in the Family Courts or any other Civil Courts mentioned in Section 26 other than Criminal Courts to try civil cases, as these provisions make the matrimonial life into the one of moral obligation. By invoking the provisions of Sections 24 and 151 CPC, the matter pending in Civil Court or Family Court alone can be transferred to similar Courts http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019 in other districts and certainly not to Criminal Courts. So also, if any petition is filed under Section 482 Cr.P.C to transfer a case, the Court can transfer the criminal case from one Court to another Court. The provisions of Sections 24 and 151 CPC or Section 482 of Cr.P.C. cannot empower cases to be transferred from Civil Court to Criminal Court or vice versa, even though the word ‘proceedings’ is used under Section 24 of CPC. The only recourse to transfer the DVAC cases to Family Courts from other Courts is by invoking the provisions of Article 227 of the Constitution of India, as it has got a superintendence power over Subordinate Courts. The object of DV Act must be to reunite couples by protecting the interest of women and in the guise of protecting women, there should not be any breakup of sacramental relationship. If a woman approaches a Criminal Court, the tendency of the husband and his family members is that they are treated as criminals, without realising the fact that it is only civil in nature. When they are made to stand along with criminals, the relationship between the spouses gets strained and the question of reunion is next to impossible. The woman, who is approaching the Criminal Court makes her lawyer and her husband’s lawyer lucrative at the cost of the husband’s money and whoever succeeds in the matter pertaining to matrimonial disputes, ultimately the result is one and the same viz., the family life is ruined. http://www.judis.nic.in Tr.C.M.P.No.51 of 2019 and C.M.P. No.1718 of 2019
8. The Transfer Civil Miscellaneous Petition is allowed as indicated above. No costs. Consequently, the connected civil miscellaneous petition is closed.

D. Judgment of Hon’ble Mr. Justice G.R.Swaminathan, holding that nomenclature is not important and till the conflict is resolved by the Larger Bench, Petition under Article 227 of the Constitution of India is maintainable :-

2021 SCC OnLine Mad 2183 : (2021) 4 CTC 826
In the High Court of Madras
(BEFORE G.R. SWAMINATHAN, J.)
Muthulakshmi and Another … Petitioners;
Versus
Vijitha … Respondent.

C.R.P(MD). No. SR16753 of 2021
Decided on June 11, 2021
Petition filed praying that in the circumstances stated therein and in the affidavit filed therewith the High Court may be pleased to quash the proceeding in D.V.O.P. No. 11 of 2021, on the file of the Judicial Magistrate Court No. I, Tirunelveli. The Order of the Court was delivered by
G.R. SWAMINATHAN, J.:— This petition coming up for orders on this day, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. P.M. VISHNUVARTHANAN, Advocate for the petitioners, the court made the following order:—
2. This petition has been filed under Article 227 of the Constitution of India for quashing the proceedings in DVOP No. 11 of 2021 on the file of the learned Judicial Magistrate No. I, Tirunelveli, in so far as the petitioners herein are concerned.
3. The petitioners are parents-in-law of the respondent herein. The marriage between the petitioners’ son and the respondent was solemnized on 30.01.2019 and a girl child was also born through the wedlock. The marital life of the respondent came under strain leading to filing of D.V.O.P No. 11 of 2021. In the said petition, the respondent herein had arrayed her husband as the first respondent, the petitioners herein as the respondents 2 and 3 and her brother-in-law and wife of brother-in-law as the respondents 4 and 5. Contending that the institution of D.V.O.P. is an abuse of legal process, this petition has been filed.
4. Though this petition was filed as early as on 17.03.2021, the Registry did not number the petition. Therefore, the learned counsel made a mention before me yesterday for listing the matter. I directed the Registry to list the matter before me under the caption “For Maintainability”.
5. The hesitation of the Registry to number the petition appears to be on account of the divergent views expressed in some of the earlier orders of the Madras High Court. Earlier, to quash the proceedings filed under the Protection of Women from Domestic Violence Act, 2005, petitions used to be filed under 482 of Cr.P.C. This was put an end to by a Hon’ble Judge of this Court vide order in Dr. P. Pathmanathan v. V. Monica ((2021) 2 CTC 57). His Lordship Mr. Justice N. Anand Venkatesh held that the proceedings instituted under the Central Act 43 of 2005 are civil in nature and therefore, petition under Section 482 of Cr.P.C. will not lie to quash them. Even while laying down a set of directions indicating the remedies available to the aggrieved parties, it was also held that a petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. However, another Hon’ble Judge of this Court (His Lordship Mr. Justice S.M. Subramaniam) took a contrary view in P. Arun Prakash v. S. Sudhamary ((2021) 2 LW 518) and held that the proceedings filed under the Central Act 43 of 2005 before the Criminal Court can only be termed as criminal proceedings. His Lordship further held that such proceedings cannot be transferred from a criminal Court to a civil Court/Family Court by exercising the supervisory power under Article 227 of Constitution of India.
6. The above view was however not in consonance with the approach adopted by His Lordship Mr. Justice A.D. Jagadish Chandira. Crl.OP No. 17235 of 2016 (G. Jeyakumar v. Jeyanthi) was filed under Section 407 of Cr.Pc for transferring the DV Act proceedings from Judicial Magistrate No. I, Pudhucherry to the file of the Family Court, Pudhucherry. After sustaining the contention that the proceedings are civil in nature, His Lordship considered the question as to whether the High Court has the power to effect the transfer sought for when the petition has been filed under Section 407 Cr.PC. The Hon’ble Judge in Paragraph 23 of the order cited the celebrated decision in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 649 in which the Apex Court held as follows:
“25. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.”
7. After referring to another decision of the Apex Court reported in (2009) 5 SCC 162 (Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur), the petition filed under Section 407 of Cr.Pc was converted to one under Article 226 and 227 of the Constitution of India and relief was granted.
8. A slightly different situation arose in Mohana Seshathri v. E. Anuja ((2021) 2 LW 509). In the said case, Transfer C.M.P was filed under Section 24 CPC. The question arose as to whether power under the said provision can be exercised with respect to proceedings pending before a criminal court, even though the dispute is civil in nature. His Lordship Mr. Justice S. Vaidyanathan deemed it appropriate to invoke Article 227 of the Constitution to grant the relief of transfer.
9. Now the question before me is not whether the impugned proceedings instituted under Central Act 43 of 2005 are civil or criminal in nature. The conflict between the two decisions referred to earlier will have to be resolved only by a larger Bench to be constituted by My Lord the Hon’ble Chief Justice. The petitioners have also not prayed for transfer from one Court to another. The only relief that they want is that the impugned proceedings should be quashed as far as they are concerned. The petitioners have invoked Article 227 of Constitution of India.
10. In my view, the Registry should not have kept the petition unnumbered for so long. When in view of the statutory bar set out in Section 18-A of the SC/ST (Prevention of Atrocities) Act, a petition for anticipatory bail was not numbered by the Registry of the Madras High Court, the matter was taken up to the Hon’ble Supreme Court. In the decision reported in (2019) 9 SCC 154 (P. Surendran v. State by Inspector of Police), it was held as follows:
“10. The act of numbering a petition is purely administrative. The objections taken by the Madras High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate udicial standard….. In this context, we accept the statement of the Attorney General, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering.
11. Therefore, we hold that the High Court Registry could not have exercised such judicial power to answer the maintainability of the petition, when the same was in the realm of the Court. As the power of judicial function cannot be delegated to the Registry, we cannot sustain the order, rejecting the numbering/registration of the Petition, by the Madras High Court Registry. Accordingly, the Madras High Court Registry is directed to number the petition and place it before an appropriate bench.”
11. Respectfully and with utmost humility following the said decision, I hold that the Registry ought to have placed the papers before the Court, if it had any doubt or reservation regarding maintainability.
12. In the case on hand, the petition that was filed as early as on 17.03.2021 was returned on the ground of maintainability only on 19.05.2021. The Bar members complained that a number of petitions have been kept un-numbered.
13. Article 227 of the Constitution of India is to the effect that every High Court shall have the superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. The text of the provision is forum-neutral. It makes no distinction between civil court and criminal court. In other words, the power under Article 227 can be exercised both over civil Courts as well as the criminal Courts. While the power under Section 482 of Cr.P.C, can be exercised only with reference to criminal proceedings before the criminal Courts, the power under Article 227 of Constitution of India is much wider and comprehensive. In hundreds of cases (reported and unreported), High Courts have struck off suits from the file of the civil courts on certain grounds, even though the parties had the remedy under Order 7 Rule 11 of CPC to seek rejection of plaint. Of course, there are settled parameters as regards the manner of exercise of the power. That is not the issue here. The issue relates to maintainability alone. The power under Article 227 of the Constitution cannot be ousted. Some may entertain the genuine belief that closing the Section 482 Cr.Pc gate would be rendered meaningless if a new opening is created under Article 227 of the Constitution. If the petitioner fails to make out a case, I may decline to exercise the power but I am not prepared to hold that I am divested of the jurisdiction which the Constitution has conferred upon me.
14. I therefore hold that irrespective of whether the proceedings under Central Act 43 of 2005 are civil or criminal, the power under Article 227 of the Constitution would always lie to quash the proceedings, if a case is really made out.
15. The Registry is directed to number the petition and list the matter for admission before the portfolio Judge on 16.06.2021.
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E. Article on Domestic Violence proceedings by the Learned Senior Counsel Mr.R.Singgaravelan, published by me in my Youtube Channel and Other Social Media Platforms, on 25.05.2021 :-

I. PRELUDE:–

1. When Covid chases all of us to breathe for our life. I had an occasion to go through the Judgment of the Hon’ble Mr. Justice S.M.Subramaniam who beautifully and thoughtfully penned down a public interest oriented judgment on Domestic Violence Act, 2005 holding reasonably that the Act is intended for the welfare of women and hence any proceedings under the Act cannot be sought to be transferred to Matrimonial Court or Civil Court under Article 227 of the Constitution of India on analysation of the entire scheme of the Act and the scope of Article 227 of the Constitution of India. I have also gone through the judgement of Hon’ble Mr. Justice N. Anandh Venkatesh in a Batch of Criminal Original Petitions under Section 482 Cr. P. C. very cautiously knocking at the vexatious and very casual approach of the parties invoking section 482 of the Cr. P. C. to stall the proceedings of the DV Act, 2005 by dismissing all such petitions and while doing so he very diplomatically put the hurdle very difficult to jump over to invoke Article 227 of the Constitution of India at para 52 xiv of his judgment.

2. Those thought provoking judgments have driven me to find out one of the earliest judgments of our Madras High Court rendered by Hon’ble M. Justice V.Rama Subramaniam now adorning the Supreme Court Bench who has in his usual way of exhibition of knowledge clinically dissected the Act, 2005 and given a wider meaning to the definition of “shared household in the interest of women by taking note of the object of the Act in Vandhana –Vs- T.Srikanth and Krishnamachari reported in 2007 (5) CTC 679.

3. In one of the cases conducted by me though not under the DV Act, 2005 before the Hon’ble Judge Mr.Justic K.Chandru of versatile knowledge against the punishment order passed against one S. Chitra of Fire Service Department for her objections against the Sexual Harassment caused to her in her office in WP. No. 37598/2009 the Hon’ble Judge set aside the punishment order passed against her by his order dated 30.09.2009 by summoning the original file and finding out the truth by his short but sharp order refering to the judgment of Vishaka reported in (1997) 6 SCC 241 followed in D S. Grewal Vs. Vimmi Joshi reported in 2009 (2) SCC 210 boosting the energy of all hepless and hapless working women.

4. Then came the judgment of the Hon’ble 3 Judges Bench Judgment of Apex Court headed by Hon’ble Mr. Justice Ashok Bhushan with Hon’ble Justice R.Subhash Reddy and Hon’ble Mr. Justice M.R.Shah in Satish Chandira Ahuja –Vs- reported in (2021) 1 SCC 414, which is a milestone judgment not only for the Act but especially for the way in which it was written with 167 paragraphs protecting and safeguarding the interest of women by taking note of almost all the earlier judgments under the Act and other similar Acts and Rules.

5. Normally and wantonly I avoided to deal with matter concerned with the matrimonial proceedings particularly the Domestic Violence Act, 2005 being afraid of the definition of ‘domestic violence’ given under the Act and ‘cruelty’ explained in various decisions of the court as I honestly feel some of my acts fall under the definition of above words though my wife also is very well capable of returning the same with penal interest as said to have been faced by all of my Law College classmates also on my verification and sharing of my problems with them.

6. Though just to ease the occasion I have written above the plight of women in the society constrains me to pen down the Report on the Domestic Violence Act and the Rules by referring to the above judgments and other judgments referred to inside with a small tribute to begin atleast to satisfy my wife with a fear of facing severe criticism and threat from my own friends.
*********************************************************************************
“Even before
A Female Child
Takes her
First Breath
On this Earth
Indifference Starts-
Preferring Male Child!
And then
With her kith and kin
Criticising her colour
And Figure!
Days Grow-
She also grows.
Her Education
And her placement
Are left to the
Sweet Will of God!
She grows and grows
And along with her
The problems also grow-
Faster and Faster!
With a Psychosis Fear
Of her Parents
Praying for her
Safe Life
She grows faster
And Faster!

*********************************************************************************

In Every Walk of life
The World teaches her
Disgust, Discrimination, Disquisition,
Diversion, Differential Treatment and Humiliation!.

*********************************************************************************
With or without
Physical, Sexual Verbal and Emotional Abuse –
She silently grows
And grows:-
Being afraid
Of the Society
And her
Family Dignity!

*********************************************************************************
For a licensd
Torture
Now she is
Made Ready
As a housewife!

*********************************************************************************
No one needs to worry.
She is a Woman
She will manage.
Even
She is planted
In a Desert
She will grow!

*********************************************************************************
Years roll on
And on!
Now,
Her daughter
Is a Graduate!

*********************************************************************************
She now is ready
To Return
To her Daughter
What all were
Thrust upon her
By The Society!

*********************************************************************************
Oh!
My Grandma, Ma,
Sister and My Wife
When and where
Do you live
For Yourself
In Peace
Enjoying
The Cool Breeze
Atleast
For a while!

*********************************************************************************

II. THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 (ACT NO.43 OF 2005) AND THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006.

1. Before entering into the moot question raised before various courts as to whether the proceedings under the Domestic Violence Act, 2005 are civil or criminal in nature and under which provision either under Sec.482 of Criminal Procedure Code or Article 227 they can be sought to be quashed or transferred to civil or matrimonial court where more or less similar reliefs are sought by the aggrieved person or respondent, the following thought provoking pinching and clinching observations of the Hon’ble Apex Court in Sathish Chander Ahuja –Vs- Sneha Ahuja (2021) 1 SCC 414 are unavoidable to be quoted and accordingly, it is quoted below:-

“32. The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had marked the step towards the transformation of the status of the women in this country.”

“35. The enactment of Act, 2005 is a milestone for protection of women in this country. The Statement of Objects and Reasons of the Protection of Women from Domestic Violence Bill, 2005 marks the objective which was sought to be achieved by the enactment.”
In view of that the Statement of Object and Reasons is reproduced below:-
“An Act to provide 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.
Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:”
STATEMENT OF OBJECTS AND REASONS
“Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

2. Thus, the above Act seeks to provide for the Protection of Women from the Domestic Violence and the Harassment by way of unlawful Dowry Demands to the women or her relatives. The Act provides for the rights of the women to secure housing and resides in her matrimonial home or shared household, whether or not she has any title or rights in such home or household by enabling the jurisdictional Magistrate to pass a residence order or any other protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence.

3. In one of the earliest cases, Hon’ble Justice V.Ramasubramanian J now adorning the Apex Court Bench in Vandhana –Vs- T.Srikanth and Krishnamachari reported in 2007 (5) CTC 679, in his usual and casual way of expression of his knowledge has clinically dissected the entire Act and the object behind that Act while interpreting “domestic relationship” and “shared household” phrases used in the Act by referring to the Statement of Objects and Reasons and International Conventions and held in favour of the woman by beautifully describing the sufferings of a woman in distress at paras 19 and 20 of the said Judgment reproduced below:-
“19………………….. As seen from the historical background of the Act, the Act was enacted with a view to implement the United Nations Convention, ratified by India way back in 1993 As observed by the Supreme Court in Githa Hariharan and Another v. Reserve Bank of India and another, 1999 (1) CTC 481, any interpretation to a statutory provision should be in conformity with the International Conventions. In paragraph-14 of the said judgment, the Supreme Court held as follows:

“14. The message of international instruments. Convention on the Elimination of All Forms of Discrimination Against Women. 1979 (CEDAW) and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear India is a signatory to CEDAW having accepted and ratified in June. 1993. The interpretation that we have placed on Section 6(a)(supra) gives effect to the principles contained in these instruments. The domestic Courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws when there is no inconsistency between them.”

20. In a society like ours, there are very many situations, in which a woman may not enter into her matrimonial home immediately after marriage. A couple leaving for honeymoon immediately after the marriage and whose relationship gets strained even during honeymoon, resulting in the wife returning to her parental home straight away, may not stand the test of the definition of domestic relationship under Section 2(1) of the Act, if it is strictly construed. A woman in such a case, may not live or at any point of time lived either singly or together with the husband in the shared household”, despite a legally valid marriage followed even by its consummation. It is not uncommon in our society. For a woman in marriage to be sent to her parental home even before consummation of marriage, on account of certain traditional beliefs, say for example, the intervention of the month of Aadi, If such a woman is held to not entitled to the benefit of Section 17 of the Act, on account of a strict interpretation to Section 2(1) of the Act that she did not either live or at any point of time lived together in the shared household, such a woman will be left remediless despite a valid marriage. One can think of innumerable instances of the same aforesaid nature, where the woman might not live at the time of institution of the proceedings or might not have lived together with the husband even for a single day in the shared household A narrow interpretation to Sections 2(1), 2(s) and 17 of the Act, would leave many a woman in distress, without a remedy. Therefore, in my considered view a healthy and correct interpretation to Sections 20) and 2(s) would be that the words “live” or “have at any point of time lived” would include within their purview “the right to live”. In other words, it is not necessary for a woman to establish her physical act of living in the shared household, either at the time of institution of the proceedings or as a thing of the past. If there is a relationship which has legal sanction, a woman in that relationship gets a right to live in the shared household Therefore, she would be entitled to protection under Section 17 of the Act, even if she did not live in the shared household at the time of institution of the proceedings or had never lived in the shared household at any point of time in the past. Her right to protection under Section 17 of the Act, co-exists with her right to live in the shared household and it does not depend upon whether she had marked her physical presence in the shared household or not. A marriage which is valid and subsisting on the relevant date, automatically confers a right upon the wife to live in the shared household as an equal partner in the joint venture of running a family. If she has a right to live in the shared household on account of a valid and subsisting marriage, she is definitely in domestic relationship” within the meaning of Section 2(f) of the Act and her bodily presence or absence from the shared household cannot belittle her relationship as anything other than a domestic relationship. Therefore, irrespective of the fact whether the applicant/plaintiff in this case ever lived in the house of the first respondent/first defendant after 7.2.2007 or not, her marriage to the first respondent/first defendant on 7.2.2007 has conferred a right upon her to live in the shared household. Therefore, the question as to whether the applicant/ plaintiff ever lived in the shared household at any point of time during the period from 7.2.2007 to 13.6.2007 or not, is of little significance.”

4. The above passages of the Hon’ble Judge now adorning the Bench of the Apex Court are quoted here to enable the readers to understand the seriousness and the noble object of protecting the aggrieved woman behind the Act, through the Magistrate though some of the remedies are civil in nature.

5. After the lapse of 9 years from the above meaningful and workable interpretation given in the above case, the Honble Apex Court also in the same line in Kunapareddy –Vs- Kunapareddy Swarna Kuamri (2016) 11SCC 774 gave a wider interpretation to the Act and held that though there is no specific power of amendment not given under the Act whether the proceedings are civil or criminal in nature, amendment power is available to the Magistrate under the Domestic Violence Act. The following passages of the judgment are relevant to be quoted and hence they are quoted;-
“12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind. especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality.”

“16. We understood in this backdrop, it cannot be said that the court dealing with the application under the DV Act has no power and/or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events (escalation of prices in the instant case) or to avoid multiplicity of litigation, court will have the power to permit such an amendment. It is said that procedure is the handmaid of justice and is to come to the aid of the justice rather than defeating it.”

17. What we are emphasising is that even in criminal cases governed by the Code, the court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated.

6. Thus, the proceedings under the Act and the Rules are meant for the remedies to an aggrieved woman on amalgamation of both civil rights and the right to protect themselves against the serious criminal offences.

7. In yet another case called Krishna Bhattarcharjee –Vs- Sarathi Choudhury reported in (2016) 2 SCC 705, the Hon’ble Apex Court gave wider meaning to the phrases “domestic relationship” and “aggrieved person” and held that divorce is different from “judicial separation” when the former severes the matrimonial relationship the latter does not severe and it is more or less a suspension of relationship for a temporary period.

8. Then on the question of limitation the Hon’ble Apex Court while dealing with the application preferred by the wife claiming to get back her stridhan has considered the meaning of “continuing cause of action” and
“continuing offence” and held that the application is within the limitation so far the stridhan is retained by the husband in the following words:-

“32. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realisation of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the of “agr aggrieved the 2005 Act came into force. In the 2005 Act, the definition person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Econotaic abuse” as it has been defined in Section 3(ev) of the said Act has a lar a large canvass Section 12, relevant portion of which has been reproduced hereinbefore. provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal that Section 468 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because the decree of dissolution of marriage. The concept “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.”

9. Paras 2 and 3 of the above judgment clearly depict the role of the Courts in interpretation of the Act and hence they are also reproduced below:-

“2. Prior to the narration of facts which are essential for adjudication of this appeal, we may state that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the 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. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the words “economic abuse”, as the provision would show, has many a facet.”

“3. Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts whereunder the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless “aggrieved person” under the 2005 Act approaches the court under the compelling circumstances. It is the duty of the respondent to nullify the grievance of the aggrieved person is really legally a sound and correct. The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice i done. Before throwing a petition at the threshold. it is obligatory to see that the person aggrieved under such a legislation is not is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.”

10. The Domestic Violence is defined under Sec.3 of the Domestic Violence Act, 2005 as follows:-

“3. Definition of domestic violence:- For the purposes of this Act. Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it
(a) Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse: or

(b) Harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b), or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

Explanation I: For the purposes of this section.:-
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force,

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes:-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) 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.”

11. From the definition it is clear that all the instances mentioned under Sec.3 would not only amount to domestic violence but also serious offences under various provisions of the Indian Penal Code, particularly under Sections 319 to 331, 334 to 338 of Indian Penal Code which deal with hurt, Section 339 to 348 dealing with wrongful restraint and wrongful confinement, Sections 349 to 358 dealing with criminal force and assault, Sections 415 to 420 dealing with cheating, Section 421 to 424 dealing with fraudulent deeds and dispositions of property, Section 463 to 465, 467 to 471 dealing with forgery, Section 493 to 498A of Indian Penal Code dealing with the offences related to marriage.
12. Sections 354, 354A, 354B and 354C speak about sexual harassment and assault of use of all criminal force against a Woman.
13. That is the reason as to why the Police Officer under the proviso to Sec.5 is cautioned to proceed with the registration of the criminal case too if serious offence is committed under the Act and the aggrieved person can get the assistance of the Police Officer or Protection Officer and the Service Provider.
14. The Hon’ble Apex Court in Santhosh Bakshi –vs- State of Punjab reported in (2014) 13 SCC 25 at para 13 reminds the duty of the Police Officer under Domestic Violence Act as follows:-
“13. The complaint, if made, by any woman alleging offence under the Protection of Women from Domestic Violence Act, 2005 committed by any member of the family, the matter is to be looked upon seriously. The police without proper verification and investigation cannot submit a report that no case is made out. The investigating agency is required to make proper enquiry not only from the members of the family but also from neighbours, friends and others. After such enquiry, the investigating agency may form a definite opinion and file report but it is for the court to decide finally whether to take cognizance for any offence under any of the provisions of the Act.”

15. The proviso to Section 5 also cautions the possibility of the commission of serious offences by the respondent against the aggrieved persons and for our convenience it is reproduced below:-
“Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.”

16. Sections 8 and 9 speak about the appointment of the Protection Officers and their Duties and Functions.
17. Section 10 speaks about the Service Providers and Section 11 of the Act places a heavy burden on the Central Government and State Government in the following words:-
“Section-10. Service providers.—

(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act.

(2) A service provider registered under sub-section (1) shall have the power to—

(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;

(b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place;

(c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.

(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.”

“Section -11. Duties of Government:- The Central Government and every State Government, shall take all measures to ensure that-

(a) The provisions of this Act are given wide publicity through public media including the television, radio and the print media at regular intervals;

(b) The Central Government and State Government Officers including the police officers and the members of the judicial services are given periodic sensitization and awareness training on the issues addressed by this Act;

(c) effective co-ordination between the services provided concerned Ministries and Departments dealing with law, affairs including law and order, health and human address issues of domestic violence is established and review of the same is conducted;

(d) protocols for the various Ministries concerned with the of services to women under this Act including the prepared and put in place.”

18. A cursory glance at the above Sections would reveal clearly as to how the Act intends to protect the aggrieved women under the Act.

19. Section 2(a) of the Act defines the aggrieved person in the following words:-

“2. Definitions:- In this Act, unless the context otherwise requires

(a) “aggrieved person” means any woman who is, or has been. In a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”.

20. That apart Sub Clauses (b) and (g) of Section 9(1) are very relevant to be quoted to find out the nature of the provisions under the Act and the seriousness involved in implementing the Object of the Act.

Sec.9(1) (b);-

“to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area”

Sec.9(1) (g);-

“to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place”

21. From the above provisions it is clear that the Act is intended to protect the aggrieved person from the bodily injuries and other serious injuries mentioned in the above provisions through the Police Officer of the concerned Police Station.
22. Section 9(1)(f) also is more relevant as it is intended to provide immediate shelter to the aggrieved person in the shelter home in following words:-
Sec.9(1)(f):-

“To make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated:”

23. Sec.12 (1) speaks about the procedure for obtaining Orders of Reliefs and Sub Clauses (i) and (ii) of Sec.12 are relevant for the issue in the hand and hence they are reproduced below:-

“12. Application to Magistrate:-

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.”

24. Sub Clause 1 of Section 12 is General in nature and it speaks about the Power of the Magistrate to grant one or more reliefs under the Act subject to the consideration of any domestic incident report received either from the Protection Officer or the Service Provider. Sub-Clause (2) of Section 12 clearly indicates the nature of the proceedings under the Domestic Violence Act by giving liberty to institute a suit for compensation or damages for the injuries caused by the act of domestic violence committed by the respondent and laying down the procedure for ‘set-off’ notwithstanding anything contained in the Code of Civil Procedure, 1908.

25. In view of two distinct and distinguishable remedies for the aggrieved persons provided under the Sub Clauses 1 and 2 separately the respondent cannot be allowed to contend the nature of proceeding under the Act is purely civil in nature and not criminal warranting severe action by the concerned Magistrate under the respective criminal laws in force, as evidenced from Sections 31 and 32 of the Act read with from I – Column 8. Further, that is the reason as to why Section 28(1) of the Act specifically mentions that the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 where the specific instances of domestic violence are enumerated under those sections apart from Sec.3 are governed by the Code of Criminal Procedure, 1973.

26. The liberty given to the Magistrate under sub-clause (2) of Section 26 to follow his own procedure is meant only for Sec.12 and 23 (2) of the Act and not for the proceedings under other provisions of the Act mentioned in sub-clause (1) of Section 28. Moreover on the basis of such a liberty the Magistrate cannot adopt any procedure as he likes other than the procedure prescribed by the code of Criminal Procedure, 1973 or more vulnerable to protect the interest and right of the victim woman. This is further made clear from Rule 12 of the Domestic Violence Rules, 2006.
27. Further, Section 26 (2) clearly points out the importance of the Act and the machineries provided under the Act by declaring that the relief available under Sections 18 to 22 may also be sought in any legal forum before a Civil Court, Family Court or a Criminal Court in addition to what is provided under the Domestic Violence Act. Sub-Section (2) of Section 26 thus clears the maze that the proceedings under Act are neither civil nor matrimonial nor criminal and they are special amalgamating both civil and criminal under the common roof to provide a speedy to an aggrieved person.

28. Rule 9 of the Domestic Violence Rules, 2006 makes the proceedings under the Domestic Violence Act super special by providing one more effective and speedy remedy than that of civil or criminal or matrimonial remedy and the same is reproduced below:-
“Rule 9:- Action to be taken in cases of emergency.—If the Protection Officer or a service provider receives reliable information through e-mail or a telephone call or the like either from the aggrieved person or from any person who has reason to believe that an act of domestic violence is being or is likely to be committed and in a such an emergency situation, the Protection Officer or the service provider, as the case may be, shall seek immediate assistance of the police who shall accompany the Protection Officer or the service provider, as the case may be, to the place of occurrence and record the domestic incident report and present the same to the Magistrate without any delay for seeking appropriate orders under the Act.”

29. That apart, Rule 10(1) (f) of the Domestic Violence Rules, 2006 authorizes the Protection Officers to take the assistance of the Police, if required to confiscate any weapon involved in the alleged domestic violence.

30. Rule 15 lays down a detailed procedure for the violation of the Protection or Interim Protection Order and such a procedure empowers the Magistrate to sentence the respondent for the violation of such order to the extent of 1 year or fine or both under Section 31 of the Act and the Rule 15 is reproduced below to find out the nature of the proceedings:-

“Rule 15:- Breach of Protection Orders.—
(1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.

(2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.

(3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.

(4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the Police, if she so chooses.

(5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.

(6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 (2 of 1974).

(7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.

(8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.

(9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include—

(a) an order restraining the accused from threatening to commit or committing an act of domestic violence;

(b) an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;

(c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;

(d) an order prohibiting the possession or use of firearm or any other dangerous weapon;

(e) an order prohibiting the consumption of alcohol or other drugs;

(f) any other order required for protection, safety and adequate relief to the aggrieved person.”

31. Sections 18 and 19 speak about the power of the Magistrate to pass Protection Orders (Section 18) and Residence Order (Section 19) and the nature and manner of those orders as mentioned under the above two sections would clearly demonstrate that the nature of proceedings under the Act are not at all the civil proceedings.

32. For our convenience both the Sections are reproduced below:-
“Section- 18. Protection orders.—
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.

“Section. 19. Residence orders.—

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

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

(b) directing the respondent to remove himself from the shared household;

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

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

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

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

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

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

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

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

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

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

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

33. Rule 10 of the Domestic Violence Rules, 2006 precribes the duties of the Protection Officers in the following words which would clearly indicate the nature of the proceedings under the Domestic Violence Act:-
“Rule-10. Certain other duties of the Protection Officers.—

(1) The Protection Officer, if directed to do so in writing, by the Magistrate shall—

(a) conduct a home visit of the shared household premises and make preliminary enquiry if the court requires clarification, in regard to granting ex-parte interim relief to the aggrieved person under the Act and pass an order for such home visit;

(b) after making appropriate inquiry, file a report on the emoluments, assets, bank accounts or any other documents as may be directed by the court;

(c) restore the possession of the personal effects including gifts and jewellery of the aggrieved person and the shared household to the aggrieved person;

(d) assist the aggrieved person to regain custody of children and secure rights to visit them under his supervision as may be directed by the court;

(e) assist the court in enforcement of orders in the proceedings under the Act in the manner directed by the Magistrate, including orders under section 12, section 18, section 19, section 20, section 21 or section 23 in such manner as may be directed by the court;

(f) take the assistance of the police, if required, in confiscating any weapon involved in the alleged domestic violence.

(2) The Protection Officer shall also perform such other duties as may be assigned to him by the State Government or the Magistrate in giving effect to the provisions of the Act and these rules from time to time.

(3) The Magistrate may, in addition to the orders for effective relief in any case, also issue directions relating general practice for better handling of the cases, to the Protection Officers within his jurisdiction and the Protection Officers shall be bound to carry out the same.”

34. Thus, the whole object of the Act and the Rules is to protect the poor, hapless and hopeless women from the domestic violence and sections 18 and 19 of the Domestic Violence Act clearly demonstrate the nature of the powers conferred on the Magistrate to act quickly and save the women from the various acts of domestic violence which on perusal would make us to understand that they all are criminal in nature.
“Section- 18. Protection orders.—
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.

“Section- 19. Residence orders.—

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

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

(b) directing the respondent to remove himself from the shared household;

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

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

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

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

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

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

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

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

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

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

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

35. Section 29 of the Act provides an appeal to the Sessions Court against the order of the Magistrate under the Act and Section 28(1) makes it clear that all the proceedings under Section 12, 18 to 23 and 31 of the Act are governed by the provisions of the Code of Criminal Procedure, 1973.

36. When Section 31 (3) empowers the Magistrate to frame charges under the Dowry Prohibition Act, 498A of the Indian Penal Code or any other provision of that code it clearly conveys message that the proceedings under the Act are intended to achieve the object of Protecting Women and Preventing any trouble to them. Section 27 mandatorily speaks about the jurisdiction of the Magistrate and the nature of enforceability of his orders in the following words:-
“Sec 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; or

(b) the respondent resides or carries 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 this Act shall be enforceable throughout India.”

37. It is most important to quote sub-clause (4) of Sec.19 of the Act to find out the nature of the proceedings under the Act which is reproduced below:-
“(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.”

38. Apart from Section 19(4), the following sub-clauses also are relevant and hence they are reproduced below:-
“(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the Court may also pass an order directing the officer in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

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

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

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

39. As per the Sub Clause (4) of Section 19 quoted above the order under the Sub Section 3 shall be deemed to be an Order under Chapter VIII of the Code of Criminal Procedure, 1973 and shall be dealt with accordingly under Chapter VIII of the Code of Criminal Procedure, 1973. There are 19 Sections starting from Sections 106 to 124 under Chapter VIII which are meant for:-
“Sec.106. Security for keeping the peace on conviction.
Sec.107. Security for keeping the peace in other cases.
Sec.108. Security for good behaviour from persons disseminating seditious.
Sec.109. Security for good behaviour from suspected persons.
Sec.110. Security for good behaviour from habitual offenders.
Sec.111. Order to be made.
Sec.112. Procedure in respect of person present in Court.
Sec.113. Summons or warrant in case of person not to present.
Sec.114. Copy of order to accompany summons or warrant.
Sec.115. Power to dispense with personal attendance.
Sec.116. Inquiry as to truth of information.
Sec.117. Order to give security.
Sec.118. Discharge of person informed against.
Sec.119. Commencement of period for which security is required.
Sec.120. Content of bond.
Sec.121. Power to reject sureties.
Sec.122. Imprisonment in default of security.
Sec.123. Power to release persons imprisoned for failing to give security.
Sec. 124. Security for unexpired period of bond.”

40. Thus it is clear that Magistrate is empowered to follow Chapter VIII of Criminal Procedure Code, 1973, which if it is read with Section 28(1) of the Act would make it clear that the Magistrate has to follow the procedure prescribed under the Criminal Procedure Code, 1973.
41. That apart Section 27 of the Act speaks about the jurisdiction of the Magistrate under the Act in the following words:-
“27. Jurisdiction:- (1) The court of Judicial Magistrate 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; or

(b) the respondent resides or carries 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”

42. When the above provision speaks about the jurisdiction, the Act says that the concerned Judicial Magistrate of the First Class or the Metropolitan Magistrate shall be competent to grant protection order and other orders under the Act and to try offences under the Act. It further says under sub-clause (2) that an order made under the Act is enforceable throughout India.

43. Section 28 of the Act lays down procedure for the entertainment of the complainant given by aggrieved person in the following words:-
“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.”

Thus, it is manifestly clear from Sub Clause 1 of Section 28 quoted above that all the proceedings under Sections 12, 18, 19, 20, 21, 22, 23 and Section 31 of the Act which providing for the penalty for Breach of Protection Order or interim protection order are governed by the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974).

44. From Sec.28 (1), it is clear that all the proceedings under the above mentioned Sections are governed by the Provisions of the Code of Criminal Procedure, 1973 which means that the complaint under the Domestic Violence Act has to be treated under the Criminal Law. Sub Clause 2 no doubts says that the concerned court is not prevented from laying down its own procedure for the disposal of an application under Section 12 or under Sub-Section 2 of Section 23 of the Act only. Thus power given under the Sub Clause 2 to the Magistrate to follow its own procedure for the purpose of Section 12 or Section 23 (2) cannot be interpreted to mean that the court can follow any procedure beyond the one than that of the Code of Criminal Procedure 1973 and any other similar law of summary in nature. Further, Sec 28(2) has to be read with Rule 6(5) of the Rule, 2006.

45. Further, Sub Clause 2 of Section 28 cannot be read in isolation to defeat Sub Clause 1 and if Sub Clause(2) of Section 28 is given such a restricted and independent meaning then each and every Magistrate can follow their own procedure which would defeat the very purpose of the Act and lead to the arbitrary way of disposal of the cases causing discrimination between the parties.

46. Further Sub Clause 2 deals with instances only under two Sections, namely 12 and 23 (2) and very interestingly it has not touched other Sections mentioned in Sub Clause 1 namely 18, 19, 20, 21, 22 and 23 (1).

47. Section 18 speaks about the nature of Protection Orders which can be passed by the Magistrate.
Section 20 speaks about the Monetary Reliefs.
Section 21 speaks about the Custody Orders.
Section 22 speaks about the Compensation Orders.
Section 23 (1) speaks about the Power of the Magistrate to pass an Interim Order.
48. When all the powers conferred on the Magistrate under Sections 18, 19, 20, 21, 22 and 23 (1) are to be governed by the Code of Criminal Procedure, 1973. Sub Clause 2 of Section 28 cannot be interpreted to mean that he can follow his own procedure other than the procedure prescribed under the Code of Criminal Procedure or any other Penal Laws. Rule 6(5) of the Domestic Violence Rules, 2006 makes it clear that the proceedings under Rule 12 has to be treated as if it is one under Section 125 of Criminal Procedure Code, 1973. As per the Full Bench Judgment of Kerala High Court in Satyabama –Vs- Ramachandran reported in 1997(2) KLJ 503 held that the Family Court is acting as a Criminal Court and not a Civil Court while disposing of the application under Section 125 of the Code of Criminal Procedure, 1973.

49. In fact Sections 18 and 19 do confer wide powers on the Magistrate and those powers would include the power to protect the aggrieved person and other relatives from any domestic violence.

50. The instances mentioned under all the Sections do constitute serious offences attracting the penal provisions of the Indian Penal Code also. Whileso, only on the basis of para 3 of the Statement of Objects and Reasons that the Act is intended to provide for a remedy under the civil law it cannot be contended that the proceedings under the Domestic Violence Act are of civil nature and hence under Article 227 relief can be sought for the transfer of proceedings to any Civil or Matrimonial Court or get the proceedings quashed, inspite of Sections 28 and 29 of the Domestic Violence Act read with Sections 406 to 410 and 482 of Criminal Procedure Code.

51. Section 29 also plays an important role to enable us to understand the nature of proceedings under the Act as it mandatorily declares that an appeal shall lie before the Court of Sessions within 30 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. If the intention of Parliament is to treat all the proceedings under the Domestic Violence Act as Civil Proceedings Appeal would not have been provided to the Court of Session under the Criminal Procedure Code and the same would not have been mentioned under Section 28 (1) and Rule 6(5) of the Rules.

52. Then Section 30 mandatorily declares that the Protection Officers and Members of Service Providers are Public Servants within the meaning of Section 21 of the Indian Penal Code.

53. Section 31 speaks about the penalty for breach of Protection Order by the respondent by calling it as an offence under the Act and says that it is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.20,000/- or with both. In fact under Section 27 the phrase ‘offence’ is used.

54. Sub Clause 3 of Section 31 empowers the Magistrate to frame Charges under Section 498A of the Indian Penal Code or any other provisions of the Code or the Dowry Prohibition Act as the case may be if the Act discloses the Commission of an offence under those provisions.

55. Section 31 is a penal provision providing imprisonment punishment for the violation of any Protection Order or Interim Protection Order passed by the Magistrate for any of the domestic violences defined under Sections 3 and Section 18, 19, 20, 21, 22 and 23(1) of the Act.

56. Section 31(3) says that the Magistrate can in addition to his power to pass an order of penalty for the period of one year imprisonment or Rs.20,000/- fine or both also can frame a Charge under Section 498A of the Indian Penal Code or any other provision of the Indian Penal Code or the Dowry Prohibition Act 1961 as the case may be if the facts disclose an offence under those sections.

57. Section 32 mandatorily declares that the violation of protection or interim protection order passed by the Magistrate for any domestic violence shall have to be treated as cognizable and non-bailable offence notwithstanding anything contained in the Code of Criminal Procedure, 1973.

58. The Magistrate has to conclude that the accused has committed the offence under Section 31 (1) of the Act.

59. The word Offence is mentioned under Section 31 (3) and under Section 27 (1) also. Thus Section 31 cannot be treated as an independent isolated provision which speaks about the sentence only at the end. A speedy casual perusal of all the provisions of the Domestic Violence Act would sufficiently prove that all the sections are inter connected forming a chain and inextricably intertwined.

60. Hence Section 31 cannot be construed as an end provision which speaks about the criminal offence and imprisonment only at the end. As it provides the punishment and further action, for, the commission or omission or violation of what is provided under other provisions of the Act it has to be treated as a provision speaking about the consequences of the violation of all other provisions of Domestic Violence Act and Rules. Hence, it cannot be read in isolation.

61. In fact Section 26 makes everything clear by declaring that the relief sought under Sections 18 to 22 can be sought before the Civil Courts, Family Court or Criminal Court by the aggrieved person in addition to the relief sought under the Domestic Violence Act before or after the commencement of the Act.

62. From that Section it is clear that the proceedings under the Act can neither be civil nor be criminal ;but it is something special and under a special enactment intended to give immediate relief to the aggrieved person and give protection to her person and her property through the Police Officers, Protection Officers or Service Providers.

63. The proviso to Section 5 of the Act has to be referred to and considered at this juncture and hence it is reproduced below:-
“Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence”.

In the light of what is stated above under the Act if we approach the Rules, Rule 6 (5) says mandatorily that the application under the Act has to be dealt with and enforced in the same manner as laid down under Section 125 of Code of Criminal Procedure 1973.
64. Rule 8 of the Protection of Women from Domestic Violence Rules, 2006 speaks about Duties and Functions of the Protection Officers and Rule 9 speaks about the Action to be taken in cases of Emergency in the following words:-
“9. Action to be taken in cases of emergency:

If the Protection Officer or a service provider receives reliable information through e-mail or a telephone call or the like either from the aggrieved person or from any person who has reason to believe that an act of domestic violence is being or is likely to be committed and in a such an emergency situation, the Protection Officer or the service provider, as the case may be, shall seek immediate assistance of the police who shall accompany the Protection Officer or the service provider, as the case may be, to the place of occurrence and record the domestic incident report and present the same to the Magistrate without any delay for seeking appropriate orders under the Act.”

Thus it is clear that the Protection Officer or the Service Provider can even take the immediate assistance of the Police to save the aggrieved person from the domestic violence and protect her.

65. Rule 10 (f) empowers the Police for confiscating any weapon involved in the alleged domestic violence.

66. Rule 15 speaks about the consequences of the Breach of Protection Orders.
Rule 15 (6) says mandatorily as follows:-
“(6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860). or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter-XXI of the Code of Criminal Procedure, 1973 (2 of 1974).”

67. Sub Clause 8 of Rule 15 says that a breach of a protection order or an interim protection protection order shall be immediately reported to the local Police Station having territorial jurisdiction and the same have to be dealt with as a cognizable offence under Section 31 and 32 of the Act.

68. Sub Clause 9 of Rule 15 also is relevant for the issue as it says that the Court may by order impose the conditions to protect the aggrieved person and ensure presence of the accused before the court while enlarging the persons on a bail arrested under the Act.

69. Thus from the discussion all the above provisions of the Act and Rules it is clear that the Magistrate is empowered to deal with the Domestic Violence complaint seriously as laid down in (2014) 13 SCC 25, and Section 2 (i) of the Act defines the word Magistrate in the following words:-

“(i) “Magistrate” 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;”

70. The aggrieved person can straight away take a complaint to the Magistrate or through the Police Officer or Protection Officer or Service Provider.

71. The complaint is for Domestic Violence under Section 3 of the Act including the physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. All the instances pointed out under Section 3 are criminal in nature falling under the definition of offence under various sections of the Indian Penal Code also, as already mentioned, and the procedure to be adopted is one under the Code of Criminal Procedure, 1973 and penalty for violation of any protection or interim protection orders is imprisonment for the period of one year and in addition to that Charges can be framed under Section 498A of the Indian Penal Code or any other provisions of that Code or Dowry Prohibition Act, 1961.

72. The violation of the Protection Order or Interim Protection Order passed by the Magistrate is declared to be a cognizable and non-bailable offence.

73. Rule 6 (5) of the Rule mandatorily says that the applications under Section 12 shall be dealt with and orders passed in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973.
74. Rule 6 (5) makes it clear that under Sub Clause 2 of Section 28 the Magistrate has to follow the procedure under Code of Criminal Procedure, 1973 and not any other procedure which is inconsistent with the procedure prescribed under the Code of Criminal Procedure, 1973.

75. Thus, starting from the point of the aggrieved person’s petition before the Magistrate till the end of the proceedings the provisions are designed to provide the procedure under the Code of Criminal Procedure and the procedure though of summary nature is similar to that of the one prescribed for dealing with the Indian Penal Code Offences under Chapter VI.

76. When all the provisions of the Act and the Rules give a clear picture about the proceedings under the Domestic Violence Act the proceedings cannot be said to be civil in nature on the basis of paras 2 and 3 of the Statement of Objects and Reasons and few other provisions providing for civil remedies also under the Act and the Rules.

77. It is the fundamental principle of interpretation that when the provisions are express, clear and mandatory, under the Act they alone cab be referred to while dealing with any proceeding under the Act and only in case of any vagueness or confusion, the object of the enactment may be seen. The object of the Act gets importance only when any of the provisions is confusive, vague and complicated.

78. In our case the object of Domestic Violence Act is not to constitute a Civil Court for the redressal of grievances of women under the Domestic Violence Act but to protect the Women form the Domestic Violence and prevent the same on the basis of Articles 14,15 and 21 of the Constitution of India and International Conventions.

79. When such is the object the words “to provide for a remedy under the civil law” cannot be given wider meaning to defeat the very purpose of the Act and make the machineries of the Act provided under various Sections of the Domestic Violence Act effectless and nugatory.

80. When Rule 6(5) mandatorily says that the proceedings under Section 12 have to be treated as one under Section 125 of the Criminal Procedure Code, 1973 and Section 28 says that the provisions of the Code of Criminal Procedure govern the proceedings under Sections 12, 18 to 23(1) of the Act ending with the punishment of imprisonment for 1 year or fine of Rs.20,000/- or both under Section 31 with a power to the Magistrate to frame a charge under Section 498A of the Indian Penal Code or any other provisions of the Indian Penal Code and also the Dowry Prohibition Act the proceedings cannot be treated to be civil proceedings alone to get transfer of the same to the Family Court or Civil Court or to any other court where similar remedies are sought as it would defeat the very object of time limit provided under sub-clauses (4) and (5) of Section 12 of the Domestic Violence Act.

81. The Act provides for the speedy and special remedy by providing the statutory time limit of 60 days with the help of the Police Officers or Protection Officers or the Service Providers. There are counselors under the Rules to solve the problem and bring peace between the parties in matrimonial home under the Domestic Violence Act.

82. When the proceedings are sought to be transferred under Article 227 of the Constitution of India to any Family Court or other court, irrespective of Section 26 of the Act, then not only the very object of the Act but also the speedy remedies provided under the Act would also be made meaningless under the Act.

83. Though the Act is intended to provide for a remedy under the civil law those remedies of civil nature cannot be said to be intended to close the eyes of the Magistrate to take cognizance of the criminal offence. The intention is not to ignore the domestic violence amounting to the offences under the Indian Penal Code and the Dowry Prohibition Act as evidenced from the proviso to Sec.5 of the Act, Sec.9(1) (b), (f) and (g) of the Act, Sections 18, 19, 21, 26, 27, 28, 29, 31 and 32 of the Act. As per Sec. 9(1) (b) (f) and (g) a Magistrate can seek police intervention and as per Sec.31 he can frame a charge under Sec.498A of the Indian Penal Code or any other provisions of the Indian Penal Code or the Dowry Prohibition Act, 1961, while dealing with the complaint of violation of the Protection Order or Interim Protection Order.

84. Further, the proviso to Section 5 empowers the Police Officers to act in accordance with the law on receipt of the information as to the Commission of cognizable offence and Sub Clause 2 of Section 12 and 26 of the Act give liberty to the aggrieved person to resort to any Civil or Family Courts remedy also for the remedy provided under the Act in addition to the one sought under the Act and not in derogation of the same.

85. Section 9(b) (f) & (g) as already stated provide for the intervention of the Police Officers also. In view of all the above provisions, and Rules 6(5) and 9 of the Rules, the Statement of Objects and Reasons has to be interpreted to mean that the proceedings under the Domestic Violence Act cannot be strictly claimed to be civil in nature simply because of some of the civil remedies also are provided under the Act. Further, when the report of the Protection Officer or Police Officer or the Service Provider for the aggrieved person under the Act and Rules demonstrates that in case of a serious domestic violence the Magistrate can give a suitable direction to the Police Officers to protect the aggrieved person and prevent the Domestic Violence under Sections 18, 19, 20, 21, 22 & 23(1) of the Act. The Act is not intended to use the Indian Penal Code for punishing but use the Code of Criminal Procedure, 1973 to conduct the proceedings speedily and summarily and pass orders to protect the women and prevent the domestic violence in the interest of saving the matrimonial life.

86. Under Section 19 (5) and (7) of the Act the Magistrate can direct the Police Officials to protect the aggrieved persons and to assist the implementation of the protection order. From the above provisions it is clear that both the Civil Remedies and the Remedies under the Criminal Law to penalize the respondent in case of his refusal to correct himself are provided. That apart a reading of all the provisions of the Statement of Objects and Reasons particularly Para 4(i) to (v) of the Statement of Objects and Reasons would prove that the A ct is intended to safe guard the Women from Domestic Violence including physical abuse, sexual abuse, verbal and emotional abuse and economical abuse as mentioned under Section 3 of the Act.

87. When the object thus is to protect the women and prevent the domestic violence by providing both the Civil Law and Criminal Law remedies and the Magistrate is defined under Section 2 (i) of the Act proceedings under the Act the proceedings at any strength of imagination cannot be treated as a civil proceeding and Article 227 cannot be made applicable for the transfer of the proceedings under the Domestic Violence Act to Matrimonial Court or any civil Court on the ground that some other connected or similar proceedings are pending before those Courts at the instance of the respondents as Sec.26 makes it clear mandatorily that those remedies are in addition to the remedies under the Domestic Violence Act and not in derogation of the same.

88. In view of Section 26 of the Act, and paras 4(i) to (v) of the very same Statement of Objects and Reasons of the Act the proceedings under the Act cannot be treated to be civil proceedings simply because of para 3 of the Statement of Objects and Reasons alone as the framers of the Act would not have used the word Complaint under para 4(i) and inserted paras 4(i) to (v) in the very same Statement of Objects and Reasons dealing with more serious act of the respondent which would amount to serious offence also.

89. Further, the Statement of Objects and Reasons can be referred to and relied upon only in case of any vagueness or confusion in understanding the provisions of the Act.

But in view of what is discussed above it is clear that there is no confusion at all in understanding the nature of the proceeding in view of various Sections and Rules of the Domestic Violence Act referred to and quoted above.

90. If the proceedings are to be treated as Civil Proceedings for the purpose of Transfer of the proceedings under Article 227 to the Family Court or any other Civil Court on the ground that similar proceedings are pending irrespective of Section 26 of the Act then the following unwanted legal consequences leading to the violation of the statutory rights of the aggrieved person would take place.
(a) that interim protection orders mentioned under the Section 23(1) cannot be passed.

(b) in order to give protection to the aggrieved person under the proviso to Section 5 and under Section 9(1) (b) (f) and (g) and Section 19(v) and (vii) the Police cannot be pressed into service by the Magistrate.

(c) a preventive order under Section 19(ii) and (iii) cannot be passed.

(d) The right confirmed on the aggrieved person under Section 17 cannot be exercised as no residence order can be passed under Section 19.

(e) Like that the Custody and Compensation Order cannot be passed to serve the immediate purpose to protect the women and prevent the violence.

(f) Penal Order imposing the imprisonment for the period of one year cannot be passed and a Charge cannot be framed for the offence under Section 498A or any other provisions of the Indian Penal Code or the Dowry Prohibition Act, 1961.

(g) Above all the Statutory Appeal to the Session Court under Section 29 of the Act also cannot be filed and as a result the aggrieved as well as the respondent would loose the Right of Appeal.
In view of what all are stated above the proceeding under the Act cannot be treated as a Civil Proceeding alone to seek and under Article 227 of the Constitution of India or any other Court where a similar proceeding is pending at the instance of the aggrieved person or the respondent.

91. The proviso to Section 12(2) makes it clear that the certain reliefs can be granted notwithstanding anything contained in the Civil Procedure Code in the following words:-
“Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Writ Procedure, 1908 (5 of 1908), or any other law for time being in force, be executable for the balance amount, if any, left after such set off.”
92. Section 12(4) says that “the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court.”

93. Section 12(5) says that “the Magistrate shall endeavor to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.”
Section 13 speaks about the Service of Notice in the following terms:-
“13. Service of notice.— (1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.

(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.

Then Rule 12 of the Domestic Violence Rules 2006, speaks about the means of Service of Notice in the following words:-

“12. Means of service of notices.— (1) The notices for appearance in respect of the proceedings under the Act shall contain the names of the person alleged to have committed domestic violence, the nature of domestic violence and such other details which may facilitate the identification of person concerned.

(2) The service of notices shall be made in the following manner, namely:—

(a) The notices in respect of the proceedings under the Act shall be served by the Protection Officer or any other person directed by him to serve the notice, on behalf of the Protection Officer, at the address where the respondent is stated to be ordinarily residing in India by the complainant or aggrieved person or where the respondent is stated to be gainfully employed by the complainant or aggrieved person, as the case may be.

(b) The notice shall be delivered to any person in charge of such place at the moment and in case of such delivery not being possible it shall be pasted at a conspicuous place on the premises.

(c) For serving the notices under section 13 or any other provision of the Act, the provisions under Order V of the Civil Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may be adopted.

(d) Any order passed for such service of notices shall entail the same consequences, as an order passed under Order V of the Civil Procedure Code, 1908 (5 of 1908) or Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) respectively, depending upon the procedure found efficacious for making an order for such service under section 13 or any other provision of the Act and in addition to the procedure prescribed under the Order V or Chapter VI, the court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act.

(3) On a statement on the date fixed for appearance of the respondent, or a report of the person authorised to serve the notices under the Act, that service has been effected appropriate orders shall be passed by the court on any pending application for interim relief, after hearing the complainant or the respondent, or both.

(4) When a protection order is passed restraining the respondent from entering the shared household or the respondent is ordered to stay away or not to contact the petitioner, no action of the aggrieved person including an invitation by the aggrieved person shall be considered as waiving the restraint imposed on the respondent, by the order of the court, unless such protection order is duly modified in accordance with the provisions of sub-section (2) of section 25.

94. Among the above provisions, sub-rules (c) and (d) are important as they have to be read with Section 13 of the Act which widely empower the Magistrate to adopt the procedure under Order V of the Civil Procedure Code, 1908 (5 of 1908) or Chapter VI of the Criminal Procedure Code, 1973 and they do not stop with that they give wide power to the Magistrate to follow any other necessary steps in addition to the procedure prescribed under the Order V of the Civil Procedure Code or Chapter VI of the Criminal Procedure Code to expedite the proceedings to adhere to the time limit provided in the Act.

95. Chapter VI of Criminal Procedure Code starts from Sections 61 to 90 of Criminal Procedure Code and those Sections do deal with the following matters, namely,
61. Form of summons.
62. Summons how served.
63. Service of summons on corporate bodies and societies.
64. Service when persons summoned cannot be found.
65. Procedure when service cannot be effected as before provided.
66.Service on Government servant.
67. Service of summons outside local limits.
68. Proof of service in such cases and when serving officer not present.
69.Service of summons on witness by post.
Sections 70 to 81 deal with Arrest and Warrant of Aresst
Sections 82 to 86 deal with Proclamation and Attachment and
Section 87 to 90 deals with other Rules regarding processes.”

96. It is the Magistrate who is competent to decide which form of procedure he has to adopt under Rule 12(1)(c) and (d) of the Rules 2006 depending upon the nature of violence and the immediate need for the relief. No general order can be pressed in to service without understanding the gravity of the domestic violence caused to an aggrieved woman.

97. Another procedure that can be adopted by the Magistrate for the service of notice is Order V of Civil Procedure Code which prescribes the mode of service under 30 Rules.

98. That apart the Magistrate himself can adopt the procedure of his choice to adhere to the time limit provided under Section 12(4) and (5) of the Act.

99. So, one cannot restrict the scope of Rule 12 by saying that the particular procedure alone has to be adopted to secure the presence of the respondent or other parties as what is important is the speedy relief to the aggrieved women in a time bound manner and the same depends upon the nature of relief sought and the position and placement of the aggrieved women seeking relief under the Act.
100. The Act is not only intended to protect but also intended to prevent any violence to women by resorting to the criminally tainted civil nature of remedies without pulling the respondent to arrest or bail.

101. Form I(8) of the Act under Rule 5(1) and (2), and 17(3) of the Rules prescribed for the Domestic incident report under Section 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) makes the nature of entire proceedings of the Act and the Rules clear in the following words:-
“8. Instruction for the Police Officer assisting in registration of a Domestic Incident Report:
Wherever the Information provided in this Form discloses an offence under the Indian Penal Code or any other law, the police officer shall—
(a) inform the aggrieved person that she can also initiate criminal proceedings by lodging a First Information Report under the Code of Criminal Procedure, 1973 (2 of 1974).
(b) if the aggrieved person does not want to initiate criminal proceedings, then make daily dairy entry as per the information contained in the domestic incident report with a remark that the aggrieved person due to the intimate nature of the relationship with the accused wants to pursue the civil remedies for protection against domestic violence and has requested that on the basis of the information received by her, the matter has been kept pending for appropriate enquiry before registration of an FIR.
(c) if any physical injury or pain being reported by the aggrieved person, offer immediate medical assistance and get the aggrieved person medically examined.”

102. From what is quoted above it is clear that the Act is intended to protect the aggrieved women immediately with the help of the Police Officers and even prevent the violence and at the same time no immediate penal action is needed to be taken against the respondent, mostly the husband or the person like the husband or any male living in with the aggrieved women and his relatives and friends. Para 3 of the Statement of Objects and Reasons has to be taken into consideration only from that angle and not otherwise.

103. It is settled principle of law that when a procedure is prescribed under the Act, it is only that procedure and no other procedure except the procedure prescribed under the Act or Rules has to be followed.

104. Further when there is a Special Law enacted to achieve a particular object for the welfare of the Weaker Sections of the Society, Women and Children, it is that Special Law which has to be looked into for the grant of relief and only in case of any confusion exercise can be undertaken to find out the way without damaging the basic structure of the concerned Special Act and the purpose for which it is passed.

105. Whether the Special Law is intended for the welfare of the Weaker Sections or for some other purpose, it prevails over the General laws as per the principle of Interpretation of law laid down by the Hon’ble Apex Court in number of cases particularly in Life Insurance Corporation of India case reported in (2015) 9 SCC 62.

106. When we came to a conclusion that the Act is a Special Act containing novel provisions to grant immediate relief to the aggrieved women and prevent domestic violence, any direction for the transfer of the proceedings under the Domestic Violence Act to any other Family Court or Civil Court or Criminal Court either under Article 227 of the Constitution of India or under the Code of Criminal Procedure, 1973 would make the entire proceedings meaningless and nugatory.

107. Section 26 of the Act makes abundantly clear that the relief under the Domestic Violence Act is in addition to any legal proceeding before a Civil Court, Family Court or Criminal Court and in case any relief is given by those courts, the aggrieved person is duty bound to inform the Magistrate about the grant of such relief and it is for the Magistrate to decide either to proceed further to grant more relief or close the case under Section 25 of the Domestic Violence Act as clear from the proviso to Clause (2) of Section 12 of the Domestic Violence Act.

108. Section 28(2) read with Rule 12(2)(d) of the Rules makes it clear that the Magistrate is competent to lay down his own procedure to achieve the object of the Act by way of hearing any person or by suitability altering or amending the prayer under Sec.25 of the Act.

109. When Section 12 (4) and 12(5) of the Act stipulates a time limit, Section 9(1)(b),(f) and (g), 18 and 19 warrant immediate attention of the Magistrate to seek the Protection of the Police Officers to protect the aggrieved women and prevent the domestic violence, no question of transfer of the same to any Civil or Matrimonial Court under Article 227 of the Constitution of India or under Section 406 and 409 read with Section 482 of the Code of Criminal Procedure Code, 1973 would be maintainable as Section 26 declares that the reliefs under the Act are in addition to the reliefs under other Acts before other Forum.

III. JUDGMENTS ON THE AND UNDER THE ACT:-

 

110. Now we have to turn to the views of various High Courts and the Apex Court on the Domestic Violence Act to find out the solution for the question as to whether the proceedings can be questioned or sought to be transferred under Article 227 of the Constitution of India treating the same as civil proceedings when both can be achieved under Section 482 (quash)and Sections 407 to 410 (transfer of cases from one court to another court)of the Code of Criminal Procedure 1973 if the proceedings are not treated as civil proceedings.

 

111.
(1) It is necessary to refer to the meaning of Civil Proceedings and Criminal Proceedings dealt with by the Hon’ble Apex Court in Ram Kishan Fauji Vs State of Haryana reported in (2017) 5 SCC 533 at pp.551 and 552 at paras.28 to 30. By by referring to the Constitutional Judgment of the Apex Court in Ishwarlal Bhagwandas reported in (1966) 1 SCR 190 : AIR 1965 SC 1818 the Hon’ble Apex Court held as follows:-
“28.The Court in Ishwarlal Bhagwandas referred to Article 133 of the Constitution and took note of the submission that the jurisdiction exercised by the High Court in a civil proceeding and that “civil proceeding” only means a proceeding in the nature of or triable as a civil suit and a petition for the issue of a high prerogative writ by the High Court was not such a proceeding. Additionally, it was urged that even if the proceeding for issue of a writ under Article 226 of the Constitution may, in certain cases, be treated as a civil proceeding, it cannot be so treated when the party aggrieved seeks relief again levy of tax or revenue claimed to be due to the State. The Court, delving into the nature of civil proceedings, noted that 🙂 AIR p.1821,para 8)
“8…,,,,,,.The expression “civil proceeding “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.”
29 .After so stating, the Court elucidated the nature of criminal proceeding and, in that regard, ruled thus: (Ishwarlal Bhagwandas case, AIR p.1821,para8)
“8…..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 a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed.”
30. Explicating the concept further, the Court opined that: (Ishwarlal Bhagwandas case, AIR p. 1821, para 8)
“8. … The character of the proceeding, in our judgement, 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. ”
It further held that 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, I damages, compensation, delivery of specific property, enforcement of personal rights, determination of status, etc.
31.The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as criminal proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of (i) sentence, and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peace and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed.”

112. Now we have to see as to whether the proceedings under the DV Act fall under the definition given by the Hon’ble Apex Court to the criminal proceeding at para 31 of its ,judgment quoted above. As already discussed elaborately the definition of the Magistrate under Section 2(a) of DV Act, applicability of the Code of Criminal Procedure under sections 26 to 31 of the DV Act, power of the Magistrate to seek the intervention of the police to protect the women victims and prevent the violence against them and also involve them for the implementation of his orders under Section 13 ,18 to 23(1) and also provision for sentence under Section 31 of the DV Act and impose fine also for the violations of the orders of the Magistrate under the DV Act apart from the power to frame charges under Section 498A and Dowry Prohibition Act while passing sentence under Section 31 and protecting the right of the victims over their property to the exclusion of the respondent would clearly reveal that proceedings under the DV Act can very safely be brought under the meaning given by the Apex Court at para 31 quoted above to the criminal proceeding.

Again at para 61 of the same Apex Court Judgment it is held as follows:-

“61. 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 let 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 petition was to avoid a criminal investigation and the final order of the writ court is quashment of the registration 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 away challenged w as that of the quasi-judicial authority, that is, I the Lokayukta, would be conceptually fallacious. It is because what matters is the nature of the proceeding, and that is the litmus test.”

113. From what is stated above it is clear that the proceedings under the DV Act are nothing but criminal or quasi criminal as finally the Magistrate is given power to pass orders for sentence of imprisonment or fine or both and frame a charge also under Section 498A or under any Section of IPC and Dowry Prohibition Act while dealing with violation of the Protection Order or Interim Protection Order providing for civil remedies also. Hence, a conclusion can be safely arrived that it is a criminal proceeding and whether it is criminal proceeding or not we can loudly declare that it is not a Civil Proceeding, warranting any action under Article 227 of the Constitution of India

114.
(2) The Hon’ble Apex Court of 3 Hon’ble Judges in Shyamlal Devda –Vs- Parimala (2020) 3 SCC14 observed undoubtedly and stubbornly that the domestic violence is of criminal in nature in the following words at the end of para 9:-
“9. ………….. The High Court was not right in saying that there was prima facie case against the other appellants 3 to 11. Since there are no specific allegations against the appellants 3 to 11, the criminal case of domestic violence against them cannot be continued and is liable to be quashed.”
115.

(3) Recently another Hon’ble 3 Judges Bench of Apex Court in Satish Chander Ahuja –Vs- Sneha Ahuja reported in (2021) 2 SCC 414 elaborately dealt with the scope and nature of the proceedings under the Domestic Violence Act, 2005 while dealing with the definition of “shared household” under the Domestic Violence Act, 2005.

116. The Hon’ble Apex Court of 3 Judges in the above Satish Chandra Ahuja reported in (2021) 8 SCC 414 at page 440 paras 32 to 35 has observed the laudable object of the Act in the following words:-
“32. The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had marked the step towards the transformation of the status of the women in this country.
33. Domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime. This non-retaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude makes the women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the society and the attitude of the women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male’s relatives.
31. Till the year 2005, the remedies available to a victim of domestic violence were limited. The women either had to go to the civil court for a decree of divorce or initiate prosecution in the criminal court for the offence punishable under Section 498-A of the IPC. In both the proceedings, no emergency relief/reliefs is/are available to the victim. Also, the relationships outside the marriage were not recognized. This set of circumstances ensured that a majority of women preferred to suffer in silence, not out of choice but of compulsion.
32. The enactment of Act, 2005 is a milestone for protection of women in this country. The Statement of Objects and Reasons of the Protection of Women from Domestic Violence Bill, 2005 marks the objective which was sought to be achieved by the enactment.…………….”
After holding so, the Hon’ble Apex Court proceeded to deal with the impact of various provisions of the Act and Rules and give wider meaning to the provisions to protect the helpless women from various forms of domestic violence enumerated under the Act and the Rules.
117. At para 136 the Hon’ble Apex Court has held as follows:-
“136. Section 40 renders admissible judgments which operate as placing any bar on a suit or trial as plea of res judicata or otherwise under some rule of law. The scheme of D.V. Act, 2005 does not contemplate that any judgment and order passed under Section 19 of the said Act prevents any court from taking cognizance of a suit or holding of trial; Section 41 deals with relevancy of certain judgments in probate, matrimonial, admirality and insolvency jurisdiction which are conclusive not only against party but against all the world. This Section enumerates four classes of judgments. A decree of Civil Court in exercise of matrimonial jurisdiction is also one of the judgments which had been held to be relevant under Section 41. The orders passed under Act, 2005 cannot be held to be orders or judgments passed in exercise of any matrimonial jurisdiction by the Court. The Act, 2005 is a special act on the subject of providing for effective protection of the rights of women who are victims of violence of any kind.”

118. Again at para 137 of the judgment the Hon’ble Apex Court has observed as follows:-
“137. Section 42 deals with admissibility of judgments relevant to matters of public nature though not between the parties and privy but such judgments, orders or decree are not conclusive proof of that they state. Section 43 says that judgment other than those mentioned in Sections 40 to 42 are irrelevant unless the existence of judgment, order or decree is fact in issue or is relevant under some other provisions of the Act. In the facts of the present case, where there are pleadings in the suit in question regarding proceeding under Section 12 the existence of orders passed under Act, 2005 are relevant and admissible in Civil Proceedings.”

119. Not only the above observations of the Hon’ble Apex Court but all the conclusions and findings of the Hon’ble Apex Court of 3 Hon’ble Judges on the Domestic Violence Act, 2005 would clearly reveal the importance and the impact of the Act and the nature of the proceedings under the said Act versus the other similar nature of civil proceedings for the same cause initiated by the aggrieved person or by the respondent. In fact we can go one step further and say on reading the entire judgment of Satish Chandra Ahuja reported in (2021) 1 SCC 414. That even the framers of the Domestic Violence Act, 2005 would not have thought of the laudable object for which they have enacted the Domestic Violence Act, 2005 and its legal implications as considered understood and explained by the Hon’ble Judges in the above case by undertaking the painful task of reading all the judgments on the nature of the proceedings and other similar enactments on the subject, that too, during the pandemic period.

120. It is therefore unavoidable to quote atleast paras 138 to 146 of the above judgment for the better understanding of the Domestic Violence Act, 2005 and the Rules.

“138. The proceedings under D.V. Act, 2005 are proceedings which are to be governed by Code of Criminal Procedure, 1973.

139. The procedure to be followed by the magistrate is provided under Section 28 of the D.V. Act and as per Section 28 of the D.V. Act, all proceedings under Section 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. Even sub-section (2) of Section 28 provides that the magistrate can lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. However, for other proceedings, the procedure is to be followed as per the provisions of the Code of Criminal Procedure, 1973. The procedure to be followed under Section 125 shall be as per Section 126 of the Cr.P.C. which includes permitting the parties to lead evidence. Therefore, before passing any orders under the D.V. Act, the parties may be permitted to lead evidence. However, before any order is passed under Section 12, the magistrate shall take into consideration any domestic incident report received by him from the protection officer or the service provider. That does not mean that magistrate can pass orders solely relying upon the domestic incident report received by him from the protection officer or the service provider. Even as per Section 36 of the D.V. Act, the provisions of the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. Even the magistrate can also pass an interim order as per Section 23 of the D.V. Act.”

After saying so the Hon’ble Apex Court referred to various judgments to find out the answer as mentioned below:-

121. The first judgment referred to by the Hon’ble Apex Court is the Constitution Bench Judgment in M.S.Sheriff –Vs- State of Madras AIR 1954 SC 397 = 1954 Crl.L.J. 1019 in which while considering perjury under Section 193 of Indian Penal Code directed by the High Court after an inquiry versus the suit for compensation filed by the complainant for wrongful confinement against the appellant who was the accused had chosen to consider one of the questions as to which proceedings should be stayed i.e. prosecution under Section 193 or suit for damages for wrongful confinement. The following observation made by the Constitution Bench in M.Sheriff AIR 1954 SC 397 at para 15 of that judgment is reproduced by the Hon’ble Apex Court:

“15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given procedure. There is some difference of opinion in the High Courts of India on this point. No hard – and – fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality whenit expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood and embarrassment.”

122. The Hon’ble Apex Court after quoting the above passage at para 148 in Satish Chandra Ahuja reported in (2021) 1 SCC 414 has observed about the above observation as follows:-

“148. In the above case, this court had observed that possibility of conflicting decision in the civil and criminal courts was not a relevant consideration.”

123. Again at para 149 the Hon’ble Apex Court has come to the question of conflicting decisions in the following words:-

“149. This Court in M.S.Sheriff AIR 1954 SC 397, directed that civil suits should be stayed till the criminal proceedings have finished. The issue before the Constitution Bench was limited as to stay of one out of two proceedings. In the present proceedings, we are not filed with any question regarding stay of any of the proceedings, however, “function of possibility of conflicting decisions” was noticed by this Court and civil and criminal proceedings which is possible and probable consequence of decision taken in two proceedings.”

124. After observing so, the Hon’ble Apex Court in Satish Chandra Ahuja’s case has chosen to refer to S.M.Jahati –Vs- S.M.Borkar AIR 1954 SC 282 a three Judge Bench judgment of the Apex Court in K.G.Prem Shankar -Vs- Inspector of Police (2002) 8 SCC 87 and V.M.Shah –Vs- State of Maharashtra (1995) 5 SCC 767 in which it was held that “the finding recorded by the criminal court stands superseded by the civil court” has observed about the finding given in K.G.Prem Shankar case as follows at para 154:-

“154. This Court ultimately held that civil proceedings as well as criminal proceedings are required to be decided on the facts and evidence brought on the record by the parties. Paras 32, 33 and 34, which are relevant, are quoted below: [K.G.Prem Shankar case 92002) 8 SCC 87 at PP 97 to 98].

32. In the present case, the decisions rendered by the Constitution Bench in M.S.Sheriff case AIR 954 SC 397 would be binding, where in it has been specifically held that no hard – and – fast rule can be possibility of conflicting decision in civil and criminal courts is not relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decisions of one court binding on the other, or even relevant except for limited purpose such as sentence or damages.

33. Hence, the observation made by this Court in V.M.Shah case (1995) 5 SCC 767 that the finding recorded by the criminal courts stands suspended by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karan Chand case (1970) 3 SCC 694 are in context of the facts of the case stated above.”

The Court was not required to consider the earlier decision of the Constitution Bench in M.S.Sheriff case AIR 1954 SC 397 as well as Sections 40 to 43 of the Evidence Act.

34. In the present case, after remand by the High Court, Civil proceedings as well as Criminal proceedings are required to be decided on the evidence, which may be brought on record by the parties.”

Again at paras 157 and 158 the Hon’ble Apex Court has referred to the Constitution Bench Judgment of this Court in Iqbal Singh Marwah –Vs- (2005) 4 SCC 370 where the Constitution Bench laid down that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other as both the cases have to be divided on the basis of the evidence adduced thereon. At para 158, the Hon’ble Apex Court has considered the impact in the following words:-

“158. In Ramdayal Jay –Vs- Laxmi Prasad (2009) 11 SCC 545 this court had occasion to consider the provisions of Sections 41 to 43 of the Evidence Act where this Court laid down that a judgment in a criminal court is admissible for a limited purpose. After nothing the provisions of Section s 40 to 43 of the Evidence Act, this Court laid down the following in para 13:-

“13. …………………….. A judgment in a criminal case, thus, is admissible for a limited purpose. Relying only on or on the basis thereof, a civil proceeding cannot be determined, but that would not meant that it is not admissible for any purpose whatsoever.”

Again at para 159, it has quoted certain passes form Ramdayal and the following is relevant:-

“15. A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an ending in relation thereto. A decision in a criminal case is not binding on a civil court.”

125. Then the Hon’ble Apex Court in Satish Chandra Ahuja’s case at para 160 have referred to another judgment in the following words:-

“160. In Vishnu Dutt Sharma –Vs- Daya Sapra (2009) 13 SCC 729, this court again reiterated that a judgment of a criminal court in civil proceedings will have only a limited application and finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding……………”

126. Then at paras 161 and 162 another two Judge Bench judgment was referred to in the following words:-

“161. A two-Judge Bench of this Court in Kishnan Singh –Vs- Gurpal Singh (2010) 8 SCC 775, after noticing the several earlier judgments concluded that finding of fact recorded by civil court does not have any bearing so as the criminal is concerned and vice versa.”

After referring to various judgments as mentioned above the Hon’ble Apex Court explained clearly as to how to deal with the order under the Domestic Violence Act 2005 versus civil court proceedings at paras 162 and 163 by referring to the facts of that case in the following words:-

“162…………….. In the plaint of suit giving rise to this appeal, the plaintiff has pleaded that the wife of the plaintiff has been subjected to various treats and violence in the hands of the defendant on several occasions. In event, the suit is filed by the wife of the plaintiff against the defendant for permanent injunction and also praying for reliefs under Section 19 [except Section 19(1) (b). The suit be fully maintainable and the prayers in the suit can be covered by the reliefs as contemplated by Section 19 read with Section 26 of the 2005 Act.”

“163. By a Written Statement, the defendant is serve to resist the suit on the ground that she had already filed an application under Section 12 where plaintiff Dr. Premkant Ahuja (daughter-in-law of the defendant) is one of the respondents and she may also place reliance on the interim order dated 26.11.2016 restraining the respondent which included Dr. Premkant Ahuja form dispossessing the applicant except without obtaining an order of the competent court. The order dated 26.1.2016 which was passed by the Magistrate under the Domestic Violence Act, 2005, shall be relevant evidence and filing admissible in the civil suit, but the above order shall only be one of the evidence in the suit but shall neither preclude the civil court to determine the issues raised in the suit on to grant the relief claimed by the plaintiff is able to prove her case. The order passed under the Domestic Violence Act whether interim or final shall be relevant and has to be given weight as one of evidence in the civil suit but the evidentiary value of such evidence is limited. The findings arrived therein by the Magistrate are although not binding on the civil court but the order having passed under the 2005 Act, which is a Special Act has to be given its due weight.”

127. Then the Hon’ble Apex Court has referred to the judgment of the Madras High Court in K. Subramani –Vs- Director of Animal Husbandary (2009) 1 MAD LJ363 and reproduced the observation made there at para 7 which is reproduced below:-

“7. A decision of the Criminal Court does not have the effect of binding nature on the proceedings before the Civil Court including the Motor Accident Claims Tribunal for the reason that the proof in both the Civil and Criminal cases are having two different categories of standards. In criminal cases, guilt of the accused must be proved beyond reasonable doubt, while in civil cases, the rights of the parties or matter in issue shall be decided on preponderance of probabilities. If a party to the case relied upon decision of the criminal Court and insists the Civil Court to give credence to the said decision, it is incumbent upon the party to gather further materials in the case, which would support the observations and the decisions of the criminal Court. If any material is available in the case, which would corroborate or strengthen the decision of the criminal Court, then, there is no embargo for the Civil Court to place reliance upon it.

128. At para 165, the Hon’ble Apex Court quoting the same has held as follows:-
“165. We are in full agreement with the above view. There is no embargo in referring to or relying on an admissible evidence, be of a civil court or criminal court both in civil or criminal proceedings.”

129. After holding so, the Hon’ble Apex Court has arrived at the following conclusions at para 166 of the judgment which are very very relevant to be reproduced and accordingly they are reproduced below:-

166.1. The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
166.2. The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
166.3. A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
166.4. In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.

130. Thus, the Hon’ble Apex Court of 3 Hon’ble Judges in the above case has categorically held that the proceedings under the Domestic Violence Act,2005 are criminal proceedings and the Act is a Special Enactment. Any order of interim or final passed under the Domestic Violence Act, 2005 can also be looked into by and the proceedings under the Domestic Violence Act, 2005 need not be withheld for any other proceedings as the order passed under the Domestic Violence Act, 2005 has to be given due weightage as it is passed under a Special Enactment intended for the protection of women and prevention of any kind of domestic violence to them as per para 163 of the judgment in Ahuja case referred to and quoted above.

131. Whileso, it is not known also how it can be allowed to be canvassed before the High Court that the petition under Article 227 of the Constitution of India alone is maintainable either for getting it quashed or transferred to another court where the matrimonial or civil proceedings are pending for the same relief either at the instance of the aggrieved person or respondent. If such an interpretation is given then the respondent with a view to defeat the effective and speedy remedy provided under the Domestic Violence Act, 2005 can file a petition in Matrimonial Court or Civil Court and get the Domestic Violence Act proceedings transferred very easily and casually causing causality to the very object of the Domestic Violence Act, 2005. Moreover, it is not known as to how a petition under Section 482 of the Code of Criminal Procedure, 1973 can be chosen to be held as not maintainable when the thorough examination of all the provisions of the Act and the Rules in the light of various decisions of the court clearly indicate that the proceedings are governed by the Code of Criminal Procedure, 1973 and conducted by the Magistrate with the assistance of the Police Officers and Protection Officers or Service Providers.

132. In view of the categorical pronouncement of the Hon’ble 3 Judges Bench Judgment of the Apex Court in Ahuja case at paras 138 and 145 of the Judgment that the proceedings under the Domestic Violence Act, 2005are governed by the Criminal Procedure Code, 1973 (Para 138 and the orders are passed in the Criminal Proceedings order the Domestic Violence Act, 2005 (Para 145) Code of Criminal Procedure, 1973 held to be not maintainable when the Hon’ble Apex Court of 3 Judges Bench in Shyamlal Devda and others –Vs- Parimala reported in (2020) 3 SCC 14 had chosen to set aside the dismissal order of the High Court of Karnataka dismissing the petition under Section 482 of the Criminal Procedure Code, 1973 dated 18.02.2019 on the ground of territorial jurisdiction to entertain the Domestic Violence Complaint against some of the respondents as there are no specific allegations against them in the following words at the end of para 10 of the judgment at P.17 of the judgment which is reproduced below for our immediate convenience:-

“90. ………………. The High Court was not right in saying that there was prima facie case against the other appellants 3 to 13. Since there are no specific allegations against Appellants 3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed.”

133. Above all, when Section 12(4) and (5) of the Domestic Violence Act, 2005 stipulates the maximum time of 60 days to grant relief to the helpless women subjected to domestic violence, it is not known as to how a respondent very casually can file a petition for transfer to the matrimonial or civil court either under Sections 406 to 409 of the Criminal Procedure Code,1973 or get it quashed under Article 227 of the Constitution of India or Section 482 of Criminal Procedure Code, 1973. Further, Section 26 declares that the remedies under the Domestic Violence Act, 2005 are in addition to what are provided under other Act and not in derogation. In view of the above provisions of law and as held by Hon’ble Judge S. M. Subramaniam no transfer under Article 227 of the Constitution of India is maintanable as detailed in the next para.

134.
(4) The Hon’ble Judge S.M. Subramaniam of High Court of Madras in P.Arun Prakash and others –Vs- S.Sudhamary in Tr.C.M.P.S.R.No.15785 of 2021 in D.V.C.No.43 OF 2019 seeking transfer of DVC to the file of the V Additional Family Court at Chennai under Article 227 of the Constitution of India from the file of the learned XVII Metropolitan Magistrate, Saidapet beautifully has held that such a petition seeking transfer to the Family Court is not at all maintainable as the Domestic Violence Act, 2005 is intended for the Protection of Women and Children and the Proceedings under both the enactments have entirely a different setup and different set up and different machineries. The following observation of the Hon’ble Judge S.M.Subramaniam in the above case would thoroughly clear the maze and hence it is dealt with in detailed.

135. Paras 49 to 56 of the judgment of the Hon’ble Judge Mr.Justice S.M.Subramanian are more apt to be quoted to find out the nature of the proceedings under the Domestic Violence Act, 2005 and the scope of Article 227 of the Constitution of India and accordingly they are quoted below:-

“49. The above judgments of the Hon’ble Supreme Court of India as well as the High Courts with reference to the principles settled for exercise of supervisory power under Article 227 of the Constitution of India, it is consistent that the scope of the power is limited and to be exercised sparingly and certainly, it cannot be exercised overriding the provisions of the Special Enactments, wherein specific reliefs are provided for redressal.”
“50. In this context, the Family Courts Act deals with Family disputes and the powers and jurisdiction of the Family Courts are unambiguously enumerated in the Statute itself. Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated. Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’. Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceedings. Offences against the women are falling both under criminal law and under civil law. In a family dispute, when there is a possibility of institution of both criminal proceedings and civil proceedings, the ‘DV Act’ contemplates certain enabling provisions, permitting the aggrieved women to file civil cases before the Civil Court and Family Courts under the respective Statutes, in order to redress their grievances. However, the said facts are to be informed before the Magistrate Court concerned. Section 26 in this regard clarifies that aggrieved person may sought for such reliefs before the Civil Courts and Family Courts by filing an appropriate application and by following the procedures as contemplated under the Special enactments.”
“51. This being independent procedures as contemplated under various Special enactments, the transfer of cases to be followed strictly in consonance with the provisions of the Criminal Procedure Code and Civil Procedure Code. When the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a civil case to a Criminal Courts, then the conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by the Hon’ble Supreme Court in various judgments discussed elaborately in the aforementioned paragraphs.”
“52. Thus, the power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India. Jurisdiction, which is not traceable under Article 227 of the Constitution of India cannot be exercised, which would result in excess exercise of power, which is not desirable.”
“53. It is relevant to look into Clause 13 of the Letters Patent, wherein it is contemplated as follows:”
“13. Extraordinary original civil jurisdiction: – And we do further obtain that the High Court of Judicature at Madras, shall have power to remove, and to try and determine, as a Court of Extraordinary Original Jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.”
“54. Even under the above provision, the suits alone are mentioned and the criminal proceedings are not mentioned in the Letters Patent. Thus, power of transfer of cases from Criminal Court of law to Civil Court or Family Court is not traceable under Article 227 of the Constitution of India.”
“55. The Domestic Violence Act, Family Courts Act, Law for Maintenance, Custody of Children etc., are enacted for the welfare and to protect the interest of the women in our great Nation. The Special enactments provide varieties of reliefs, enabling the aggrieved women to redress their grievances by following the procedures as contemplated. These Special Enactments are self-regulated and the jurisdiction of the Courts constituted and the powers and the procedures are also enumerated. While so, there is no reason whatsoever to deviate from the provisions such special enactments for the purpose of invoking Article 227 of the Constitution of India. In other words, the proceedings under those special enactments are to be regulated in accordance with the provisions of such Acts and not otherwise. The scope of the power of superintendence of Subordinate Courts by the High Court under Article 227 of the Constitution are entirely distinct and different and the same cannot be exercised for the purpose of transfer of cases from Criminal Court to the Family Court or the Civil Court.”
“56. The special enactments are for the protection of women and for their welfare. Thus, the multiple options provided under various special enactments, facilitating the aggrieved women to redress their grievances are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting the women must be disposed of at the earliest possible. Protraction and prolongation of such litigations can never be encouraged by the Courts.”

136.
(5) The High Court of Madras in Vijaya Baskar and other –Vs- Suganya Devi reported in 2010 SCC Online Mad 5446 had refused to entertain the quash petition under Section 482 of the Criminal Procedure Code, 1973 and observed as follows:-
“16. It is, therefore, clear that the initial proceedings are civil in nature and the learned Magistrate should be extraordinary careful in selecting the appropriate persons as the respondents……………”
“17. As such, keeping in mind the spirit of the Act and the purpose sought to be achieved, the learned Magistrate should process the application.”
“18. As such, at this stage, this Court cannot simply quash the proceedings under the Protection of Women from Domestic Violence Act on the ground that the petitioners in the Criminal Original Petition state that the allegations made in the Domestic Violence Act are all false.”
137.
(6) The Full Bench of Hon’ble Kerala High Court in Satyabama –Vs- Reamachandran (1997) 2 KLJ 503 held that the Family Court is acting as a Criminal Court and not a Civil Court while disposing of the application under Section 125 of the Code of the Criminal Procedure,1953. In view of that and Rule 16(5) of the Domestic Violence Act, 2005 read with Section 28 and 12 of the Domestic Violence Act, we can safely arrive at a conclusion the Domestic Violence Act, 2005 proceedings are criminal proceedings.

138.
(7) A Single Judge of Kerala High Court in Baiju and another –Vs- Latha and another reported in 2011 SCC Online Ker 4156 has dealt with the scope of the Domestic Violence Act, 2005 elaborately and held that the proceedings under the Domestic Violence Act, 2005 are criminal proceedings though the Magistrate is 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.

139. The Learned Judge at Para 16 has observed as follows:-
“……………………It is also apposite to refer to Sec.28 of the Act which states that except as otherwise provided in the Act, all proceedings under Secs.12, 18, 19, 20, 21, 22 and 23 and offence under Sec.31 of the Act are to be governed by the provisions of the Code. Even as regards proceedings other than mentioned above, I do not find anything in the Act which excludes the procedure laid down in the Code. …………………………….”

140. Then he held that the revision is maintainable before the High Court against the order passed by the appellant court under Section 29 of the Domestic Violence Act, 2005.

141. As already cited above the Hon’ble Apex Court of 3 Judges Bench in Shyamlal Devda reported in (2020) 3 SCC 14 entertained an appeal against the petition under Section 482 of the Code of Criminal Procedure, 1973 and held at Para 13 of its judgment that the complaint, if made, by any woman alleging offence under the Protection of Women from Domestic Violence Act, 2005, committed by any member of family, the matter is to be looked upon seriously.

IV. CONCLUSION:-

142. Thus, it is clear from the above discussion

(i) that the proceedings under the Domestic Violence Act, 2005 are criminal proceedings though some of the remedies available under the Act are civil in nature;

(ii) that as per Sections 5, 9(i) (b), (f) and (g) of the Domestic Violence Act, 2005 read with Rule 6(5) and 12 of the Domestic Violence Rules, 2006, it is clear that the Code of Criminal Procedure governs the proceedings before the Magistrate.

(iii) In view of Sec 12(4)and (5) of the Act, the Magistrate is duty bound to act in a time bound manner to dispose of all the application filed before him under the Domestic Violence Act, 2005.

(iv) In view of Section 26 of the Domestic Violence Act, 2005, the remedies available under the Act, 2005 are in addition to the remedies available before the Matrimonial Court, Civil Court or Criminal Court and not in derogation.

(v) In view of Form I(8) it is clear that the remedies are available to the aggrieved women under the Act irrespective of her right to lodge a criminal complaint and other proceedings with regard to the redressal of her grievances.

(vi) The Act is a Special one not only intended for the Protection of Women but also prevention of the domestic violence. The preventive, effective and speedy remedy is available only under the Domestic Violence Act, 2005 with the assistance of the Police Officers.

(vii) Section 31 empowers the Magistrate to frame charge under Section 498A of Indian Penal Code or under any other provision of Indian Penal Code and the Dowry Prohibition Act making the scheme of the Act clear that it is a special one.

(viii) The Domestic Violence Act, 2005 deals with the Protection Order Residence Order, Compensation Order and Custody of the Child or Children in an elaborate manner providing for both civil and criminal remedies for the speedy disposal of the problem even by an interim measure under the common roof of one court.

(ix) The Magistrate can seek the assistance of Police Officers to get implemented his orders and the provision s of the Act and the Rules.

(x) In view of the law laid down by the Hon’ble 3 Judges Bench in (a) Ahuja’s case (2021) 1 SCC 414, (b) Shyamala Devda and others –Vs- Parimala (2020) 3 SCC 14, (c) Santosh Bakshi –Vs- State of Punjab and others (2014) 3 SCC 25 and (d) the Full Bench of Kerala High Court in Satyabhama –Vs- Ramachandran 1997 (2) KLJ 503, followed by the Learned Single Judge of Kerala in Baiju and another –Vs- Latha and another 2011 SCC Online Ker 4156, the proceedings under the Domestic Violence Act, 2005 are criminal proceedings and they are in addition to other remedies available under Civil or Matrimonial Law and not in derogation of the same.

(xi) Article 227 of the Constitution of India cannot be invoked seeking to quash the Domestic Violence Act proceedings under Article 227 of the Constitution of India as they are in more than 5 cases held to be criminal and in case of any abuse of the Act against some third parties unconnected with the domestic violence the proceedings can be challenged under Section 482 of the Criminal Procedure Code, 1973 as dealt with by the Hon’ble Apex Court of 3 Hon’ble Judges in Shyamala Devda and others –Vs- Parimala (2020) 3 SCC 14 and other Full Bench of Kerala and Single Bench Judgment of the Madras and Kerela High Court referred to above.

(xii) As rightly and categorically held by Hon’ble Mr. Justice S.M.Subramaniam on thorough analysis of the entire scheme of the Act and Article 227, no proceedings under Domestic Violence Act, 2005 can be sought to be transferred under Article 227 of the Constitution of India.

(xiii) In view of Section 26 of the Act and 12 (4) and (5) of the Domestic Violence Act, no proceedings can be sought under Sections 406 to 409 of Criminal Procedure Code, 1973 or under Article 227 of the Constitution of India as the Domestic Violence Act, 2005 proceedings are in addition to other civil or matrimonial or criminal proceedings provided under the Act and not in derogation of the same and more over they have to be completed in a time bound manner.

(xiv) It does not mean that under the extraodinary, exceptional, rare and unique circumstances the parties cannot invoke Sections 406 to 410 read with section 482 of the Code Criminal Procedure, 1973 for transfer of the proceedings to another Court for achieving the true object of the DV Act , 2005 in a time bound manner.

(xv) I hope that the judgement of the Madras High Court in Mohana Seshathri Vs. Anuja reporetd in CDJ 2020 MHC 944 dated 11.02.2020 would not have been rendered had the judgment of the Hon’ble 3 Judges Bench of the Apex Court in Ahuja dated 15.10.2020 reported in (2021) 1 SCC 414 holding at paras 138 and 145 that the proceedings under the DV Act, 2005 are Criminal Proceedings been delivered before the judgement dated 11.02.2020 in Mohana Seshathri Vs. Anuja case. The other judgement in a batch of Criminal Original Petitions under Section 482 of the Code of Crimnal Procedure, 1973 dated 18.01.2021 holding at para 52 that the High Court must lay down some broad guidelines, in exercise of its power of superintendence under Article 227 of the Constitution to satisfy the twin principles of consistency and clarity and under Section 483 of the Cr.P.C for the proper disposal of applications under Section 12 of the DV Act was also taken note of me. But in the same para last line before the directions it was also held categorically by the Hon’ble Judge Mr. Justice N. Anandh Venkatesh with his usual cautious approach to achieve the common cause and public interest observed quickly as follows:-

“……,A corrective mechanism is available in the D.V.Act itself for aggrieved parties to agitate their grievances and obtain redress.”

Again the Hon’ble Judge at para 52 xiv with great care has observed as follows:-

“A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer patent lack of jurisdiction.The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner.(See Abdul Razak Vs Mangesh Rajaram Wagle (2010)2 SCC432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai Vs Tuticorin Educational Society, (2019) 9 SCC 538). In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act”

After strictly holding so and driving the party to seek remedies under the Act itself protecting the interest of all the parties the Hon’ble Court at para 53 held that the petitions filed under section 482 Cr.P.C very casually are not at all maintainable giving liberty rightly to approach the Magistrate himself and removed the delay in disposal of DV Act cases by filing 482 CrPC petitions. Thus the Hon’ble Judge has closed all the ways very brilliantly to get the DV Act proceedings disposed in a time bound manner by the Magistrate by taking note of Sections 25 and 26 of the Dv Act read with Section 12(4) and (5).

143. In view of all discussed above it is clear that D.V.Act is a self contained code providing remedies in addition to the civil and matrimonial law remedies to the aggrieved women and its object can be be achieved only when the Act is permitted to be proceeded in a time bound manner without any hurdle.

144. I hope that I have with my little knowledge on the subject covered some of the important aspects and the objects of the Act and I do not intend to convey in any manner to any one that this report on DV Act is exhaustive on the Act and my conclusions are perfect as the law is always not static and subject to changes according to the need for the changes and criticism.
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