SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Nandkishor Pralhad Vyawahare vs Sau. Mangala W/O Pratap Bansar @ … on 3 May, 2018

apl.578.11.jud 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPLICATION [APL] NO.578 OF 2011

Applicant : Nandkishor Pralhad Vyawahare,
Aged about 40 years, Occ : Agriculturist,
R/o Tadtoda, Tah. Malegaon,
District Washim.

— Versus —

Respondent : Sau. Mangala w/o Pratap Bansar
@ self declared Sau. Mangala
Nandkishor Vyawahare,
Aged Major, Occ : Not Known,
R/o Ward No.4, Malegaon, Tq. Malegaon,
District Washim.

———————–
Shri Amit Kinkhede h/f Shri S.V. Sirpurkar,
Advocate for the Applicant.
Shri C.A. Joshi, Advocate for the Respondent.
Shri Sumant Deopujari, Public Prosecutor for the State.
Shri Sahil Dewani, Advocate to assist the Court.
———————–

CORAM : B.P. DHARMADHIKARI, S.B. SHUKRE
MRS. SWAPNA JOSHI, JJ.
RESERVED ON : 22nd FEBRUARY, 2018.
PRONOUNCED ON : 3rd MAY, 2018.

ORAL JUDGMENT :- (Per S.B. Shukre, J.)

Hearing of this application filed by the deceased-

applicant seeking quashing and setting aside of the proceeding

initiated by the respondent-wife under Section 12(1) of the

::: Uploaded on – 03/05/2018 04/05/2018 01:49:45 :::
apl.578.11.jud 2

Protection of Women from Domestic Violence Act, 2005 (hereinafter

referred to as “the D.V. Act” for short) to obtain a monetary relief

under Section 20 of the D.V. Act before the Court of Judicial

Magistrate First Class, Malegaon, District Washim has been held by

us to answer the questions as framed in the reference made over

to us.

02] At the initial stage of the hearing of the application,

which was before the learned Single Judge (Coram : A.R. Joshi, J.) of

this Court, it was brought to the notice of the learned Single Judge

that there were conflicting decisions of different benches of this

Court on the question of applicability of the provision of Section

482 of the Code of Criminal Procedure (for short “Cr.P.C.”) to a

proceeding initiated under Section 12 of the D.V. Act seeking

various reliefs as provided under Sections 18 to 22 of the D.V. Act.

The conflicting views taken by two different benches of this Court,

that were brought to the notice of the learned Judge arose from the

cases of Mangesh Sawant vs. Minal Vijay Bhosale – (2012 ALL MR

(Cri.) 1113 (Coram : A.S. Oka, J.) and Narayan Thool and others vs.

Mala Chandan Wani in Criminal Writ Petition No.773/2014 (Coram:

S.B. Shukre, J.). The view in the case of Mangesh Sawant was that

the proceeding under Section 12 of the D.V. Act being not criminal

::: Uploaded on – 03/05/2018 04/05/2018 01:49:45 :::
apl.578.11.jud 3

but civil, power under Section 482 of Cr.P.C. could not be invoked

for quashing of the proceeding and whereas the view taken in the

case of Narayan Thool was quite opposite holding that such power

of quashing of proceeding under Section 482 of Cr.P.C. was

available. In view of the conflict of views, the learned Judge made

a reference to the Hon’ble the Chief Justice for constituting a larger

bench for resolution of the conflict of views. While making the

reference, the learned Judge framed two questions, which are as

follows :

(i) Whether or not the proceedings under the Protection of

Women from Domestic Violence Act, 2005 are in the

nature of criminal proceedings ?

(ii) Whether or not the High Court can exercise its powers

under Section 482 of the Code of Criminal Procedure,

1973 in respect of the proceedings under the Protection

of Women from Domestic Violence Act, 2005 ?

03] Accordingly, the Hon’ble the Chief Justice was pleased to

direct to constitute the Division Bench presided over by one of us

(B.P. Dharmadhikari, J.) to hear and decide the reference made by

the learned Single Judge in this criminal application.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 4

04] As the hearing of the reference before the Division

Bench commenced, a new development took place. It was

informed at the bar that the original applicant-Nandkishor was no

more. The matter was adjourned for further consideration and the

learned Counsel for the respondent confirmed the fact that the

original applicant-Nandkishor was dead. Thereafter, considering

the fact that the questions under reference were required to be

answered appropriately, an order was passed on 18/08/2017

directing the Registry of this Court to publish a notice in the cause

list, pointing out the issues referred and requesting the Advocates’

willing to assist the Court to resolve the issues on the next date of

hearing, which was 11/09/2017.

05] In response to the said notice, learned Additional Public

Prosecutor Shri M.K. Pathan, appeared before the Court in addition

to Shri Amit Kinkhede, learned Counsel for the applicant and Shri

C.A Joshi, learned Counsel for the respondent. During the course of

hearing, attention of the Division Bench was invited to one more

decision rendered in the case of Sukumar Pawanlal Gandhi and

another vs. Bhakti Sushil Gandhi and others – (2016 SCC OnLine

Bom 12942) by another Division Bench of this Court (Coram: A.S.

Oka and A.A. Sayed, JJ.), wherein a view was taken that the High

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 5

Court could not exercise the power under Section 482 of Cr.P.C. for

quashing of an application under Section 12(1) and that such power

would be available only in respect of prosecutions launched under

Sections 31 and 33 of the D.V. Act. To arrive at the opinion, the

Division Bench examined the scheme of the D.V. Act, it’s various

provisions and drew strength from the judgment of the Apex Court

in the case of Kunapareddy alias Nookala Shanka Balaji vs.

Kunapareddy Swarna Kumari – (2016) 1 SCC 774.

06] Having taken due note of the view taken by the

coordinate bench in the case of Sukumar Gandhi, the Division

Bench hearing the reference concluded that the principle of stare

decisis required that a view holding the field need not be disturbed

only because another view was possible, unless there was a

prepondering necessity dictated by the demands of the justice. The

Division Bench then examined some more decisions, one of them

was rendered by Division Bench of the Gujarat High Court in Suo

Motu vs. Ushaben Kishorbhai Mistry – (2016) ALL MR (Cri) (Jou) 293,

in which a view was taken that when the provisions of Cr.P.C. were

made applicable, Section 482 of Cr.P.C. power would also be

available for quashing of a proceeding under Section 12(1) of the

D.V. Act. The Division Bench hearing the reference also considered

::: Uploaded on – 03/05/201804/05/2018 01:49:46 :::
apl.578.11.jud 6

the judgment of the Hon’ble Apex Court in the case of Kunapareddy

(supra) and various provisions of the D.V. Act. It found that the

answers to the questions under reference made to it, could not be

properly given unless a definitive view was taken on the points as

to whether or not the nature of proceedings, civil or quasi criminal

or quasi civil, would be the factor which determined the

applicability of Cr.P.C. and whether or not the clear and

unambiguous language of Section 12(1) of the D.V. Act would get

clouded because of the nature or character of the proceedings.

The Division Bench found that the case of Sukumar Gandhi (supra)

did not address these aspects and, therefore, it opined that the

reference made to it was required to be made over to a larger

Bench for deciding the questions as framed (supra) by the learned

Single Judge of this Court.

07] Accordingly, we have heard Shri Amit Kinkhede, learned

Counsel for the applicant, Shri Sumant Deopujari, the learned

Public Prosecutor, Shri C.A. Joshi, learned Counsel for the

respondent and Shri Sahil Dewani, the learned Advocate, who all

have rendered assistance to us in answering the questions under

reference.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 7

08] Shri Amit Kinkhede, learned Counsel appearing for the

applicant contends that the case of Kunapareddy (supra) clears the

air of doubt around the nature of proceeding contemplated under the

D.V. Act. He submits that the Hon’ble Apex Court has held that the

proceeding is predominantly of civil nature, owing to the nature of

rights it addresses and remedies it provides for assertion of those

rights. He submits that even the procedure prescribed in the D.V. Act

is neither completely criminal nor civil and a discretion has been given

to the Court trying the application filed under Section 12(1) of the D.V.

Act to lay down it’s own procedure to suit the needs of a given case.

He further submits that the Hon’ble Supreme Court in S.A.L. Narayan

Row and another vs. Ishwarlal Bhagwandas and another – (1966) 1

SCR 190 equivalent to (AIR 1965 SC 1818), has laid down the criteria

by which to determine the nature of a proceeding. According to it, he

further submits, the expression “civil proceeding” includes all

proceedings in which a party asserts the existence of a civil right

conferred by the civil law or statute and claims relief for breach

thereof, whereas the expression “criminal proceeding” connotes a

proceeding which is ordinarily the one which if carried to conclusion,

may result in penal consequences such as imposition of sentences of

death or imprisonment or fine and/or forfeiture of property. He further

submits that by these parameters, one can say that the proceeding

initiated under Section 12(1) of the D.V. Act, in order to seek various

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 8

reliefs under the Act as are available under Sections 18 to 22 of the

D.V. Act, is civil in nature, though, the procedure, that has to be

generally followed for taking the proceeding to its logical end, is

criminal.

09] Shri Amit Kinkhede, learned Counsel for the applicant

submits that whatever may be the nature of proceeding, the scheme

of the D.V. Act is such that the conduct of the proceeding is generally

by following a criminal procedure, as provided under the Cr.P.C. To

demonstrate, he refers to various provisions of the D.V. Act and rules

framed thereunder. Provisions pointed out by him are such as; Section

28 of the D.V. Act providing for applicability of the provisions of Cr.P.C.

subject to the power of the Court under sub-section (2) Section 28 of

Cr.P.C. to lay down it’s own procedure in a given case, Sections 31

33 making breach of a protection order or an interim protection order

and failure of the Protection Officer to discharge his duties as directed

by the Magistrate in the protection order without any sufficient cause

as punishable offences, Section 32 making the offence under Section

31(1) as cognizable and non-bailable and Rule 6(5) of the Protection of

Women from Domestic Violence Rules, 2006 (“Rules, 2006”, for short).

According to him, a combined reading of these provisions of law would

make it clear to us that the procedure, by which the proceeding under

Section 12(1) of the D.V. Act has to be conducted, is generally criminal

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 9

and therefore, inherent power of the High Court under Section 482 of

Cr.P.C. would be available to quash a proceeding under the D.V. Act.

10] Shri C.A. Joshi, learned Counsel for the respondent submits

that the proceeding under Section 12(1) of the DV. Act is

predominantly of civil nature, the remedies provided thereunder being

of civil nature. He further submits that this fact is also made clear by

the Statement of Objects and Reasons, which says that this

enactment has been proposed keeping in view the rights guaranteed

under Articles 14, 15 and 21 of the Constitution of India to provide for

a remedy under the civil law, which is intended to protect women from

being victims of domestic violence and to prevent occurrence of

domestic violence in the society. He submits that offences created

under the D.V. Act are restricted to only the breach of protection order

issued under Section 18 and failure of the Protection Officer to

perform his duty, as prescribed under Sections 31 and 33 and,

therefore except for quashing of a proceeding under Sections 31 and

33 of the D.V. Act, power under Section 482 of Cr.P.C. cannot be

invoked to quash other proceedings under the D.V. Act. Thus, he

supports the view of the Division Bench of this Court taken in the case

of Sukumar Gandhi (supra).

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 10

11] Shri Sumant Deopujari, learned Public Prosecutor submits

that answer to the first question regarding the nature of proceeding

under Section 12(1) of the D.V. Act, has already been given by the

Hon’ble Apex Court in the case of Kunapareddy (supra) and it is that

such proceeding is predominantly of civil nature. So, according to

him, now there is no room left for entertaining any doubt about the

nature of such a proceeding. Inviting our attention to the provision of

Section 28 of the D.V. Act, he submits that this provision of law

prescribes a self-contained procedure to be followed for conducting a

proceeding under Section 12(1) of the D.V. Act and, therefore, there is

no need to take any external aid. He submits that once it is provided

under sub-section (1) of Section 28 of the D.V. Act that the provisions

of Cr.P.C. are applicable to a proceeding under 12(1), no one can say

that the intention of the legislature is different and that it intends to

only selectively apply the provisions of Cr.P.C. to a proceeding initiated

for punishing the persons found to be guilty of the offences under

Sections 31 and 33 of the D.V. Act and not to the other proceeding

brought in for seeking various remedies provided under Sections 18 to

22 of the D.V. Act. He submits that applicability of Cr.P.C. cannot be

doubted because Section 28(1) of the D.V. Act says so. As regards the

discretion of the Court to lay down it’s own procedure under Section

28(2) of the D.V. Act, he submits that the power is confined to only a

particular case wherein it could be invoked, if it is found by the

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 11

Magistrate that following of the procedure prescribed under the Cr.P.C.

is likely to result in inconvenience, delay or injustice. He submits that

this provision of law would make it clear that nature of proceeding is

immaterial.

12] Shri Sahil Dewani, learned Counsel draws our attention to

Section 29 of the D.V. Act and submits that remedy of appeal to the

Court of Sessions against the order of the Magistrate has been

provided and Section 28 also makes applicable the provisions of

Cr.P.C. to a proceeding initiated under Section 12(1) of the D.V. Act

and, therefore, even though the Statement of Objects and Reasons

states that a civil remedy has been intended to be provided, the

procedure that has to be followed is criminal in accordance with the

provisions of the Cr.P.C. subject to the power of the Court to modify or

lay down the own procedure in some cases.

13] These arguments indicate that there is an agreement

among the arguing Counsel that the nature of proceeding is mainly

civil, though they differ on the extent of applicability of the provisions

of Cr.P.C. to all proceedings under the D.V. Act, with majority of them,

asserting that the Cr.P.C. does apply barring exceptional cases as

provided under Section 28 of the D.V. Act and Shri C.A. Joshi, a

subscriber of minority view, emphasizing that Section 482 Cr.P.C.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 12

power can be invoked only to quash a proceeding taken in respect of

offences under Sections 31 and 33 of the D.V. Act and not in relation

to other proceedings.

14] Now, in the light of these arguments, let us proceed to

explore the probable answers to the questions framed under

reference. We shall now take up the first question for consideration

and resolution. For the sake of convenience, the question is

reproduced again thus :

(i) Whether or not the proceedings under the Protection of

Women from Domestic Violence Act, 2008 are in the

nature of criminal proceedings ?

15] The D.V. Act nowhere makes any reference to the

character or nature of the proceedings that are initiated under the D.V.

Act. It does not define the characteristics of the proceedings that may

be taken under the D.V. Act. So, delving into the object of the Act and

examination of the scheme of the Act seems inevitable.

16] The Act is intended to provide a net of protection around

women against violence of any kind, especially that occurring within

the family and in order to achieve the object, it hands out various

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 13

reliefs that can be sought and given to the affected woman. These

reliefs can be obtained by her by making an application under Section

12(1) of the D.V. Act to a Magistrate, who has been defined under

Section 2(i) of the D.V. Act as 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 12(1) allows making of an application to seek

these reliefs by the affected woman herself or on her behalf by the

Protection Officer or any other person. Any order made by the

Magistrate is appealable, in terms of Section 29, before the Court of

Session and not before the Court of District Judge, within 30 days of

the receipt of the order by the aggrieved person or the respondent.

The expression “Court of Session” has not been defined in the D.V.

Act. But, Section 28 of the Act lays down that all proceedings under

the Act, subject to exceptions provided in the Section, shall be

governed by the Cr.P.C. So, the expression “Court of Session” would

have to be taken, with the aid of Section 28 of the D.V. Act, as one

class of Criminal Court from out of several classes contemplated under

Section 6 and established in terms of Section 9 of the Cr.P.C.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 14

17] Prescribing a Judicial Magistrate of the first class as an

authority competent to deal with such an application and

appealability of his order before the Court of Session may be the first

indicators of the fact that the proceedings are steeped in criminality.

But, a deeper examination of the scheme of the D.V. Act blurs the first

impression and as one goes on reading the other provisions of the D.V.

Act, the impression gets even more hazier.

18] Reference to one section, Section 26 of the D.V. Act would

be sufficient to illustrate the point. Section 26 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 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.”

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 15

Sub-section (1) of Section 26, it is clear, lays down that

any relief available under Sections 18, 19, 20, 21 and 22 may also be

sought in any legal proceeding before a Civil Court, a Family Court or a

Criminal Court affecting the aggrieved person and the respondent,

whether such proceeding is initiated before or after the

commencement of the Act. Under sub-section (2), it is provided, any

relief referred to in sub-section (1) could be sought for in addition to

and along with any other relief which the aggrieved person may seek

in such suit or legal proceeding before a Civil or a Criminal Court. So,

the reliefs provided under the D.V. Act can also be sought in any civil

suit or a legal proceeding before a Civil or Criminal Court, no matter

who institutes it and what reliefs are originally sought therein as long

as the suit or other legal proceeding affects the aggrieved person and

the respondent. It is significant to note that the D.V. Act does not

declare anywhere that whenever reliefs under Sections 18 to 22 are

sought in other pending proceeding before a Civil Court, Family Court

or a Criminal Court, such Court would be deemed to be the Court of

Judicial Magistrate, First Class. Silence of the legislature on this issue

is likely to create difficulty in selection of the forum for filing of an

appeal against any order passed in respect of the reliefs provided

under the D.V. Act by a person not satisfied with the order. The reason

being that Section 29 of the D.V. Act, which creates right of appeal,

mandates that such forum would be the Court of Session and it is

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 16

possible in a given case that the order granting or rejecting relief may

have been passed by the judicial forum equal in rank or designation

as the Court of Session. This issue, however, is not the subject matter

of reference and, therefore, it need not detain us here any more. But,

the fact remains that the nature of provisions made in the D.V. Act is

such that it poses some difficulty in determining the character of the

proceedings taken under the Act.

19] In such cases, the Hon’ble Supreme Court has paved the

way for finding out the nature of a proceeding. It has held that an

examination of the nature of the rights created, the reliefs provided

and the kinds of final order that could be passed, would be sufficient

indices of the nature of a proceeding.

20] In the case of S.A.L. Narayan Row (supra), the issue was

about maintainability of an appeal before the Hon’ble Supreme Court

upon due certification by the High Court and the dispute was about

levying of penal interest on the income tax assessed by the

competent authority under the Income Tax Act. It was the submission

of the learned Counsel for the assessee that the proceeding instituted

in the High Court in exercise of its jurisdiction – original or appellate –

could be broadly classified as (i) proceeding-civil, (ii) proceeding-

criminal, and (iii) proceeding-revenue, and where the case did not

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 17

involve a substantial question as to the interpretation of the

Constitution, what would lie from an order passed in a proceeding-

civil would be an appeal to the Supreme Court with certificate granted

under Article 133 of the Constitution, and from a judgment, final order

or sentence in a criminal proceeding what would lie to the Supreme

Court would be an appeal with certificate granted under Article 134 of

the Constitution, but from an order passed in a proceeding relating to

revenue, the right of appeal may be exercised only with the leave of

the Supreme Court. The issue was addressed by the Supreme Court

from a perspective which required examination of the kind of rights

conferred, the kind of remedies provided and the kind of final orders

that may be passed upon conclusion of a proceeding and the answer

was provided in paragraph 8 thus :

“8. ……………….. Counsel relies upon the classification or
proceeding made in Article 132(1) and seeks to contrast it
with the phraseology used in Articles 133(1) and 134(1).
He says that “other proceeding” in Article 132(1) falls
within the residuary class of proceedings other than civil
or criminal, and such a proceeding includes a revenue
proceeding. 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 statue, 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

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 18

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. But
the whole area of proceedings, which reach the High
Courts is not exhausted by classifying the proceedings as
civil and criminal. There are certain proceedings which
may be regarded as neither civil nor criminal. For instance,
proceeding for contempt of Court, and for exercise of
disciplinary jurisdiction against lawyers or other
professionals, such as Chartered Accountants may not fall
within the classification of proceedings, civil or criminal.
But there is no warrant for the view that from the category
of civil proceedings, it was intended to exclude
proceedings relating to or which seek relief against
enforcement of taxation laws of the State. The primary
object of a taxation statute is to collect revenue for the
governance of the State or for providing specific services
and such laws directly affect the civil rights of the tax-
payer. If a person is called upon to pay tax which the State
is not competent to levy, or which is not imposed in
accordance with the law which permits imposition of the
tax, or in the levy, assessment and collection of which
rights of the tax-payer are infringed in a manner not
warranted by the statute, a proceeding to obtain relief
whether it is from the tribunal set up by the taxing statute,
or from the civil court would be regarded as a civil

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 19

proceeding. 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, deliver of specific property,
enforcement of personal rights, determination of status
etc.”

21] It would be clear now that a proceeding in which the party

asserts the existence of civil rights conferred by the civil law or by

statute and claims a relief for breach thereof would be a proceeding of

civil nature and the proceeding which upon conclusion results in the

imposition of sentences, such as death, imprisonment, fine or

forfeiture of property would be a proceeding of criminal nature. This

would also tell us that it is not the nature of the tribunal invested with

an authority to grant relief which determines the character of a

proceeding and it is the nature of the right violated and the relief

provided for violation of the right is what ultimately decides the nature

of a proceeding. This would call for us to look into the object and

purpose of the D.V. Act, the nature of the rights conferred and the kind

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 20

of reliefs provided for in the Act.

22] Preamble to the Act indicates that the enactment is

intended to provide more effective protection of rights of women

guaranteed under the Constitution, who are victims of the violence

occurring within the family and for matters connected therewith or

incidental thereto. The relevant portions of the Statement of Objects

and Reasons read thus :-

“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 women is subjected to cruelty
by her husband or his relatives, it is an offence under
section 498-A 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

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 21

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.”

23] The Statement of Objects and Reasons enlightens us on

the legislative mind. The Parliament treats domestic violence as a

human rights issue and considers that it is a serious deterrent to the

development and one can see why it is so. As one would agree,

family, being a smallest unit of an organized society, is a nursery for

children to acquire values and necessary equipment to be the

responsible members of the society and make their meaningful

contribution to the development of society. It is said that no family

with children as it’s members attains its completeness without a

woman. If there is any disturbance, mental or physical for a woman

member of the family, it would have it’s deleterious effect on the

health of the family as a whole. A disturbed and distressed family

would not be able to give its contribution to the society to grow,

develop and flourish in the world community.

24] If we go through texts of different religions, we would find

that at different points of time, in the history of human civilizations,

there are instances when women and womanhood have been

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 22

respected, revered and sometimes even put on a high pedestal.

Israelites considered Deborah as mother of Israel and she has been

eulogized in a poem in Judges 5, in words, “Till you arose, O Deborah,

Arose, O mothers, in Israel !” One of the Ten Commandments found

in Exodus, Chapter 20, calls upon children to honour their father and

mother in the words, “Honour your father and your mother, that your

days may be prolonged upon the land which the Lord, your God giveth

you”. In the old testament, it is said that God created man in his own

image, in the image of God He created him, male and female He

created them and God said to them, “Be fruitful and increase in

number; fill the earth and subdue it, rule over the fish of the sea and

the birds of the air and over every living creature that moves on the

ground”. (Genesis 1:26-28). Hindu texts present diverse views on the

subject, though, they generally acknowledge the feminine energy as

the essence of the Universe (Devi Sukta – Rigveda), the one who

creates all matter and consciousness, the external and infinite, the

metaphysical and physical reality (Brahman), and the soul (Atman) of

everything. Even Manusmiriti, not generally considered as treating

women with equality, praises women saying, ” ; uk;Lrq iq T ;Urs jeUrs

ns o r% | ;rkLrq u iq T ;a U rs lokZ L rQy% fdz ; k%r s ||”, or where women are

revered, there Gods reside, but where they are not, all actions bear no

fruits.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 23

25] Coming to modern times, we have an array of luminaries

who fought and worked for emancipation of women in India. Making a

reference to all of them is not possible here. Suffice it to say, from

Mahatma Jyotiba Phule through Bharat Ratna Dr. Babasaheb

Ambedkar, Pandit Jawaharlal Neharu to Dr. A.P.J. Abdul Kalam, all have

seen that no human society can ever make progress unless it’s women

are treated with dignity and honour that they deserve. At

international level too, a global consensus on the need for protecting

women against all kinds of violence has emerged amongst the

nations, which is seen in the Vienna Accord, 1994, the Beijing

Declaration and the Platform for Action (1995) and the United Nations

Committee on Convention on Elimination of All Forms of

Discrimination Against Women (CEDAW), which is reflected in the

Statement of Objects and Reasons.

26] So, no wonder that the Parliament has thought in its

wisdom that the domestic violence is a human rights issue and a

serious dampner for the growth and prosperity of the society. This

vision of the Parliament should provide us an insight into the scheme

of the D.V. Act and help us understand the nature of a proceeding

initiated in it and the procedure applicable to it.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 24

27] The Statement of Objects and Reasons, as we can see, has

acknowledged that even though domestic violence is widely prevalent

in Indian society and one aspect of it, albeit a smaller one, has also

been dealt with as an offence punishable under Section 498-A of the

Indian Penal Code, the issue has remained largely ignored by the civil

law. In order to remove this deficiency in civil law and keeping in view

the rights guaranteed under Articles 14, 15, 19 and 21 of the

Constitution of India, the Parliament has enacted the D.V. Act to

provide for a remedy under the civil law. Further examination of the

scheme of the D.V. Act would show that the Act not only deals with

various acts and omissions which would constitute domestic violence

by laying down an elaborate definition of “domestic violence” in

Section 3 of the Act, but also provides for different reliefs that can be

obtained by an affected woman described and defined as “aggrieved

person” in Section 2(a) and the procedure by which such reliefs can be

obtained. A notable feature of the D.V. Act is that if does not say in so

many words that domestic violence is abolished or prohibited or

banished so as to give an indication of conferment of a corresponding

right upon the aggrieved person, but it provides for a mechanism for

redressal of the grievances of the aggrieved person arising from her

being a victim of domestic violence. These provisions are unique and

appear to be an admixture of best of both the worlds, civil and

criminal. This could be seen from various provisions contained in

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 25

Chapter IV of the D.V. Act.

28] Chapter IV of the D.V. Act contains Sections from 12 to 29,

lays down the kind of reliefs that can be obtained and the procedure

applicable to them. Section 12 deals with an application to be made

to the Magistrate for seeking various reliefs provided under the

subsequent sections. Section 13 prescribes the mode of service of

notice. Sections 14, 15 and 16 are about counselling, assistance of

welfare expert and proceedings to be held in camera. Section 17

confers upon every woman in a domestic relationship the right to

reside in a shared household. The reliefs available to an aggrieved

person are enumerated in Sections 18 to 22. Under Section 18, a

protection order prohibiting the respondent from committing or

abetting commission of any act of domestic violence and so on, can

be obtained. Under Section 19, relief in the nature of residence order

can be sought. Monetary relief can be obtained under Section 20. An

order for obtaining temporary custody of any child can be sought by

the aggrieved woman under Section 21. Compensation order can

also be obtained under Section 22. Section 23 invests a magistrate

with power to grant an interim and ex parte order in respect of various

reliefs that could be sought under the D.V. Act. Sections 24 and 25

deal with supplying the aggrieved person copies of orders free of cost,

duration and alteration of orders. Section 26 makes it clear that any

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 26

relief available under the D.V. Act can also be sought in any other

legal proceeding before a Civil Court, Family Court or a Criminal Court

as long as such proceeding affects the aggrieved person and the

respondents. Section 27 clarifies the limits of territorial jurisdiction of

the Court of Judicial Magistrate, First Class or the Metropolitan

Magistrate, as the case may be. Section 28 makes applicable the

provisions of the Cr.P.C. to all the proceedings under Sections 12, 18,

19, 20, 21, 22 and 23 and offences under Section 31 except as

otherwise provided in the D. V. Act and subject to power of the Court

to lay down different procedure for disposal of an application under

Section 12 or under sub-section (2) of Section 23 in a particular case.

Section 29 prescribes that appeal from the order made by the

Magistrate shall lie to the Court of Session, within thirty days from the

date of an order.

29] It would be clear from these provisions that what they

essentially create is a plethora of civil rights breach of which results in

basically providing civil remedies which are alien to criminal law.

These rights and remedies are such as; right against domestic

violence to be realized through a prohibitory order (Section 18), right

to reside in a shared household and right from being dispossessed or

disturbed in enjoying the possession of a shared household to be

realized through a suitable restraining order (Section 19), right to get

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 27

monetary reliefs and compensation (Sections 20 and 22), right to seek

temporary custody of the child (Section 21) and right to seek interim

and ex parte orders in certain cases (Section 23). These rights and

reliefs are not found in classical criminal jurisprudence, which is about

punishing the rule breaker by sentencing him to death or

imprisonment or forfeiture of property and in some cases making him

pay the compensation to the victim of crime. A prohibitory order or a

restraining order or an injunction, is never a part of the sentences that

the criminal law would impose upon the offender. Similarly, the notice

that is issued first on an application under Section 12(1) of the D.V.

Act is civil in nature as can be seen from the provision of Section 13

and neither any cognizance is taken as under Section 190 of Cr.P.C.

nor any process is issued as under Section 204 of Cr.P.C. in respect of

such an application.

30] Under Section 12(1) of the Act, an application may be

made to the Magistrate, who could be a Judicial Magistrate of the first

class or as the case may be, the Metropolitan Magistrate in Mumbai

metropolitan region, as defined under Section 2(i), for seeking various

reliefs as provided under Sections 18, 19, 20, 21, and 22. These

reliefs, we cannot ignore, are for redressing breach of civil rights and

have a civil flavour, not known to criminal law. Besides, it is not the

Judicial Magistrate First Class or the Metropolitan Magistrate, as the

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 28

case may be, who alone is competent to decide an application under

Section 12(1). Even a Civil Court or a Family Court or any other

Criminal Court conducting any legal proceeding which has the power

under Section 26 to do so. This would mean, just to give example, it is

possible to obtain these reliefs even in a petition filed for divorce

between the same parties under the provisions of Hindu Marriage Act,

1955. This should leave no doubt in our mind that the rights created

and remedies provided for breaches thereof in the D. V. Act have been

viewed by the Parliament as basically of civil nature and, therefore,

by specific provisions, authority has been conferred even upon the

civil courts, in addition to criminal courts, under Section 26 of the Act,

to deal with an application filed for seeking various remedies provided

under Sections 18 to 22 of the D.V. Act.

31] The provision made for designating the Court of Judicial

Magistrate or the Metropolitan Magistrate as the Court where

application under Section 12 (1) of the D. V. Act can be made, appears

to have been done only with a view to provide teeth to the powers of

the Court. After all, a court of Judicial Magistrate, First Class with a

jurisdictional sway over the police stations, would be in a better

position to lend help to the aggrieved person in executing the orders

passed by it. But, in order to give more option to and widen the choice

of the forum of the aggrieved person, it is laid down in Section 26 that

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 29

the reliefs under the D. V. Act could also be sought in other

proceedings before other courts – civil or criminal, affecting the

aggrieved person and the respondent.

32] Making of criminal and civil courts simultaneously as

appropriate fora to obtain the reliefs provided under the D.V. Act is a

certain pointer to the fact that the character of the proceeding is not

dependent 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 kind of relief that may be had. We have already seen that rights

created and remedies provided for in the D.V. Act are basically of civil

nature.

33] At the same time, we can also not ignore some procedural

and penal provisions in the D.V. Act and Rules, 2006 to which we will

shortly refer. These provisions also give rise to a question – Would

these provisions determine the character of the proceedings or make

up together an effective tool for the aggrieved person to get the fruits

of the remedies provided under the D.V. Act ? This question would

also have to be answered by us while we give our consideration to

these procedural and penal provisions.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 30

34] Section 28 of the D.V. Act, a procedural provision, lays

down that except for the savings made in the Act and subject to

power of the Court to laydown it’s own procedure, all proceedings

under the Act are governed by the provisions of the Cr.P.C. A separate

part in Chapter V contains some penal provisions. Sections 31 and 33

create two distinct offences. Section 31 prescribes that any breach of

protection order or interim protection order by the respondent is an

offence under the D.V. Act and is punishable with imprisonment of

either description for a term which may extend to one year or fine up

to Rs. 25000/- or with both. This offence has been made cognizable

and bailable under Section 32. Section 33 prescribes one more offence

and it provides that any failure or refusal to discharge duty as directed

by the Magistrate in the protection order without any sufficient cause

on the part of the protection officer would be an offence punishable

with imprisonment of either description for a term which may extend

to one year or with fine of amount up to Rs. 20,000/- or with both.

However, cognizance of the offence under Section 33 can be taken

only upon a complaint filed with the previous sanction of the State

Government or its duly authorized officer. Rule 6(5) of the Rules, 2006

framed by the Central Government in exercise of it’s rule making

power under Section 37 of the D.V. Act lays down that applications

under Section 12 shall be dealt with and the orders enforced in the

same manner as prescribed under Section 125 of the Cr.P.C.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 31

35] Applicability of provisions of the Cr.P.C. and providing of

criminal consequences for breaches are only indicative of the

intention of the the Parliament to make various civil remedies

available under the D.V. Act more effective and meaningful.

Parliament thought in it’s wisdom that mere giving of remedies of civil

nature or an order of injunction or prohibition for that matter, may not

be sufficient to enable the aggrieved person realise the benefits of

civil remedies. It were the speed and fear of the criminal procedure

generally and the penal consequences visiting the respondent for

some of his indiscretions would what really make a disobedient

respondent behave. So, as an effective tool in the hands of the Court

and the aggrieved person, the procedure to be followed generally is

criminal and breach of protection order and directions issued in such

order constitute two separate and distinct offences. Obviously, they

have no bearing upon and do not determine the basic character of the

proceeding initiated under Section 12 (1) of the Act which is by and

large of the civil nature. Making of breach of the protection order or

failure to perform by the protection officer duty in terms of the

direction given by the Magistrate in the protection order are only

instances of efficacy and inherent punch of the remedy provided

under Section 18 of the Act which is at its core civil in nature. These

provisions at best, are the effective instruments by which to make

available speedily the remedies under the Act to the aggrieved person

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 32

and enable her to enjoy the fruits of the remedies.

36] This is also, as we find, in keeping with the vision of

Parliament which sees domestic violence as a human rights issue and

a serious impediment to development. Unless a wide array of

remedies is provided, and it is possible only in civil law and not in

criminal law and the remedies are also made speedy and effective,

which is possible by infusing them with criminality, the issues of

human rights and development can not be addressed properly. This is

what seems to be the overall scheme and theme of the D.V. Act.

37] Learned Counsel Shri Kinkhede, relying upon the case of

Smt Kuldip Kaur vs. Surinder Singh another – (1989) 1 SCC 405,

submits that offences under Sections 31 and 33 could only be viewed

as those prescribed by the Legislature for enforcing the protection

order. With due respect, we would say that it is not possible to agree

with the submission of learned counsel for the applicant. In Smt

Kuldip Kaur, the Hon’ble Apex Court interpreting the provisions

contained in Chapter XIX of the Code of Criminal Procedure

comprising Sections 125 to 128 which deal with three questions – (i)

adjudication as regards the liability to pay the monthly allowance to

the neglected wife and children etc., (ii) the execution of order for

recovery of monthly allowance and (iii) the mode of an execution of

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 33

order for monthly allowance, held that one of the modes for enforcing

the order of maintenance allowance is to impose sentence of jail on

the person liable to pay the monthly allowance. However, it has

clarified that sentencing a person to jail is a “mode of enforcement”

and it is not a “mode of satisfaction” of the liability. The provisions of

Sections 31 and 33 create distinct offences resulting from commission

of the acts or omissions described therein for which punishments are

prescribed. Therefore, the offences could not be viewed as mere

“modes of enforcement”, rather, they would be adding the necessary

power and punch to the remedy provided under Section 18 of the D.V.

Act by leaving an impression in the mind of the disobedient or deviant

that his disobedience or deviance may land him in jail and/or his being

made to suffer consequence of fine.

38] In Kunapareddy (supra), the Hon’ble Apex Court, after

considering the Statement of Objects and Reasons of the D. V. Act, the

nature of rights dealt with under the Act, the nature of remedies

provided under the Act and the procedure prescribed for dealing with

the applications under Section 12 (1) of the D. V. Act , held that the

proceedings are predominantly of civil nature. The observations of

the Hon’ble Apex Court appearing in paragraph 11 are relevant and

they are reproduced as under :-

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 34

“11. We have already mentioned the prayers which
were made by Respondent 1 in the original petition and
Prayer A thereof relates to Section 9. However, in Prayer
B, Respondent 1 also sought relief of grnt of monthly
maintenance to her as well as her children. This prayer
falls within the ambit of Section 20 of the DV Act. In fact,
Prayer A is covered by Section 18 which empowers the
Magistrate to grant such a protection which is claimed by
Respondent 1. Therefore, the petition is essentially under
Sections 18 and 20 of DV Act, though in the heading these
provisions are not mentioned. However, that may not
make any difference and, therefore, no issue was raise by
the appellant on this count. In respect of the petition filed
under Sections 18 and 20 of the DV Act, the proceedings
are to be governed by the Code, as provided under
Section 28 of the DV Act. At the same time, it cannot b
disputed that these proceedings are predominantly of civil
nature.”

39] The Division Bench of this Court in Sukumar Gandhi

(supra) following the view taken by the Hon’ble Supreme Court in

Kunapareddy held that the proceedings under Section 12 (1) of the

D.V. Act are predominantly of civil nature and so it opined that the

power under Section 482 of Cr.P.C. would not be available for quashing

of an application under sub-section (1) of Section 12 seeking reliefs

under Sections 17 to 22 of the Act. However, it gave a clarification

that because Sections 31 and 33 create distinct offences, power under

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 35

Section 482 Cr. P. C. could always be exercised for quashing of the

prosecutions under Sections 31 and 33 of the Act.

40] Following the law laid down by the Hon’ble Apex Court in

Kunapareddy (supra) and what the discussion made thus far has led

us to, we express our agreement with submissions made across the

bar by all the learned Counsel and also with the view of the Division

Bench of this Court in Sukumar Gandhi (supra) on the first question

under reference and formulate our conclusion as under :

Proceedings under the Protection of Women from Domestic

Violence Act, 2005 are predominantly of civil nature and it is only

when there is a breach of the protection order as is contemplated

under Section 31 and failure or refusal to discharge duty without any

sufficient cause by the protection officer as contemplated under

Section 33, the proceedings assume the character of criminality.

The first question is answered accordingly.

41] Now, we take up for answer the second question which is

reproduced again, for convenience, thus : :

(ii) Whether or not the High Court can exercise its power

under Section 482 of the Code of Criminal Procedure, 1973

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 36

in respect of the proceedings under the Protection of

Women from Domestic Violence Act, 2005 ?

42] We have seen that the nature of proceeding initiated

under the D.V. Act is predominantly of civil nature. But, can we say,

only because the proceedings have a dominant civil flavour, the

applicability of the provisions of Cr.P.C. to the proceedings under the

D.V. Act, is excluded or to be precise inherent power of the High Court

under Section 482 of Cr.P.C. is not available to deal appropriately with

these proceedings, in spite of express application of the provisions of

Cr.P.C. by the Parliament as provided under Section 28 of the D.V.

Act ? In other words – Would the nature of the proceedings decide the

fate of Section 28 or the intention of the Parliament as expressed in

Section 28 of the D.V. Act would ? To find out an answer, as a first

step, we must look into the express language of the provision of

Section 28 of the D.V. Act and then if required, we may look for

external aids, if any, as dictated to us by the settled principles of

statutory interpretation.

43] The first and foremost rule of construction is the rule of

literal construction. According to this rule, if the language of the

provision is clear and unambiguous and expresses legislative intent in

no uncertain terms, that intent must be given effect to and in such a

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 37

case there is no need to resort to the other rules of construction of

statute or take assistance from any other external aid of construction.

The rule is succinctly expounded by the Hon’ble Apex Court in the

case of M/s. Hiralal Ratan Lal Vs. The Sales Tax Officer, and another –

AIR 1973 SC 1034. The relevant observations of the Apex Court

appearing in paragraph 21 are as under :

“21 ……………….. In construing a statutory provision, the
first and the foremost rule of construction is the literary
construction. All that we have to see at the very outset is
what does that provision say? If the provision is
unambiguous and if from that provision, the legislative
intent is clear, we need not call into aid the other rules of
construction of statutes. The other rules of construction of
statutes are called into aid only when the legislative intent
is not clear………………”

44] The literal rule of construction is reiterated by the Hon’ble

Supreme Court in the case of Lt. Col. Prithi Pal Singh Bedi vs. Union of

India and others – (1982) 3 SCC 140. In paragraph 8, it has observed

thus :

“8. The dominant purpose in construing a statute is to
ascertain the intention of the Parliament. One of the well
recognised canons of construction is that the legislature
speaks its mind by use of correct expression and unless
there is any ambiguity in the language of the provision the

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 38

Court should adopt literal construction if it does not lead
to an absurdity. The first question to be posed is whether
there is any ambiguity in the language used in Rule 40. If
there is none, it would mean the language used, speaks
the mind of Parliament and there is no need to look
somewhere else to discover the intention or meaning. If
the literal construction leads to an absurdity, external aids
to construction can be resorted to. To ascertain the literal
meaning it is equally necessary first to ascertain the
juxtaposition in which the rule is placed, the purpose for
which it is enacted and the object which it is required to
subserve and the authority by which the rule is framed.
This necessitates examination of the broad features of the
Act.”

45] It would be clear now that what is to be seen first in the

provision of law under consideration is as to whether or not there is

any ambiguity in the language used. If there is none, the presumption

would be that Parliament speaks it’s mind through the language used

and there is no need to look somewhere else to discover the intention

or meaning. The literal rule of construction is about what the law says

and means, as understood from the plain language of the law and not

what the law should and ought to be, as understood by taking

recourse to the external aids of construction. It is also well settled

that literal construction should not be excluded only because the

consequences lead to some undesirable results or penalty. In the case

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 39

of Tata Consultancy Services vs. State of A.P. – (2005) 1 SCC 308, the

Hon’ble Supreme Court has cautioned the Courts by observing that

the Court should not be overzealous in searching for ambiguities or

obscurities in the words which are plain.

46] Let us now examine the provision of Section 28 of the D.V.

Act, in the light of these well settled rules of statutory construction. It

reads thus :

“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.”

47] A plain reading of the section impels us to say and say

only that the language used therein is plain and unambiguous and

that it does not leave any scope to doubt that what it connotes

expressly is what the Parliament means to convey. It would then

follow that there is no need to resort to any external aids or other

rules of construction to interpret Section 28 of the D.V. Act. This can

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 40

be seen from a bare reading of Section 28.

48] Sub-section (1) of Section 28 clearly lays down that all

proceedings taken under Sections from 12 to 23 and in respect of

offence under Section 31 shall be governed by the provisions of Cr.P.C.

except as otherwise provided in the D.V. Act. It means that only such

of the provisions of the Act as would lay down a particular procedure

to be followed by the Magistrate, which would have prevalence over

the provisions of the Cr.P.C. to the extent of their inconsistency with

the specific provisions of the D.V. Act. To give examples, these specific

provisions are seen embedded in Section 12(3) of the D.V. Act

requiring filing of the application in the prescribed form; Rules 6(1)

and 6(5) of the Rules, 2006, prescribing form of application under

Section 12 and following of procedure governing proceedings filed

under Section 125 Cr.P.C., while dealing with an application under

Section 12 and enforcing the orders passed on it; Section 12(4)

mandating fixing of the first date of hearing ordinarily not beyond

three days from the date of receipt of the application; Section 13(1)

directing the service of notice through the Protection Officer and so on

and so forth. Barring such specific procedural requirements, however,

the provisions of the Cr.P.C. have been made applicable under Section

28(1) of the D.V. Act. This applicability, it is seen from the plain and

clear language of this provision, is general and omnibus. It

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 41

unequivocally speaks of the intention of the Parliament to generally

apply provisions of the Cr.P.C. to the proceedings under or arising from

the D.V. Act, subject to exceptions specifically indicated in Section 28.

It appears that such criminal procedure is generally applied with the

avowed purpose of giving teeth to the remedies provided under the

civil law.

49] We have seen earlier that Parliament’s intention was to

provide for more effective protection of the rights of women

guaranteed under the Constitution, who are victims of violence of any

kind occurring especially within the family and for matters connected

therewith or incidental thereto. The Parliament, in order to realize this

object, has provided a remedy under the civil law on the one hand and

has applied generally the criminal procedure subject to few exceptions

on the other. These exceptions are created only to ensure that the

disadvantages of some of the provisions of Cr.P.C. especially those

applicable at the initial stage of issuance of notice and also at the time

of recording of evidence, do not bog down the proceeding leading to

delay in it’s conclusion. In any case, these provisions stand only as

exceptions to the generality of the provision of sub-section (1) of

Section 28 of the D.V. Act and we may say, if we could say,

proverbially exceptions prove the general rule.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 42

50] Coming to the second part of Section 28 of the D.V. Act,

which is in sub-section (2), our view is no different than what we hold

for the other exceptions we have expressed our mind on. This

provision also stands as an exception to the generality of the

applicability of the provisions of Cr.P.C. It only enables the Court to lay

down it’s own procedure, notwithstanding the general applicability of

the provisions of Cr.P.C. to all the proceedings under the D.V. Act, as

laid down in Section 28(1). As it is only an enabling provision of law, it

may or may not be put to use by the Court in a given case and

everything will depend upon fact situation of each case. An enabling

section, empowering the Court to make an exception to the generality

of the previous section, does not by itself divest the previous section

of it’s general character and affects the generality of the previous

section only when it is actually put to use in a particular case.

Whenever, such power conferred by the enabling section is used, it

comes to an end the moment the proceeding is concluded. This

power under Section 28(2) exists for speedy and effective disposal of

an application under Section 12 or under sub-section (2) of Section 23

and as soon as the purpose is achieved, the power extinguishes itself.

In other words, the power under sub-section (2) of Section 28 begins,

if at all it begins, upon the decision taken by the Court on the

commencement of or during the course of the proceeding under

Section 12 or Section 23(2) and comes to an end the moment the

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 43

proceeding is disposed of in accordance with law. Therefore, such

power of the Court cannot be construed in a way as to confer more

power than intended by the Parliament so as to exclude the

applicability of the provisions of Cr.P.C., forever and for all times to

come after the Court has disposed of such a proceeding. If this

enabling section is to be understood, even when it is not put to use, as

excluding criminal remedies and measures made available under the

D.V. Act to a party aggrieved by the decision of the Court, as for

example, remedy of criminal revision under Section 397 or invocation

of High Courts’ inherent power under Section 482 of Cr.P.C, we would

be doing violence to the language of entire provision of Section 28 of

the D.V. Act and putting into the mouth of the Parliament something

not intended by it, which is not permissible under the settled rules of

construction.

51] The purpose of the power given to the Court under

Section 28(2) of the D.V. Act is only to provide a powerful tool in the

hands of the Court to provide effective and speedy remedy to the

aggrieved person. Such power given to the Court is likely to come

in handy for the Court dealing with Section 12 D.V. Act application

in a given case and especially the Courts contemplated under

Section 26 of the D.V. Act before whom similar applications are

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 44

filed. Section 36 of the D.V. Act also lays down that the provisions

of the Act are in addition to and not in derogation to the provisions

of any other law, for the time being in force. The combined reading

of all these provisions of law would only strengthen the conclusion

so reached by us.

52] If the concept of limited applicability of the provisions of

the Cr.P.C., as propounded by Shri C.A. Joshi, learned Counsel for the

respondent is accepted, in our considered view, it would defeat the

very object of the Act which is to provide effective protection to

women against the incidence of domestic violence. If the Parliament,

intended to provide for a remedy under the civil law, it also intended

to make the remedy effective and meaningful by laying down for

general applicability of the criminal procedure, subject to the

exceptions created in the Act. It has envisaged that the job of

providing effective remedy to the aggrieved person is best performed

by the Courts only when the procedure adopted to do it is informed by

the best of both the worlds. That is the reason why the Parliament has

provided for general applicability of the criminal procedure and has

also simultaneously given freedom to the Court to devise it’s own

procedure in a particular case so as to suit the exigencies of that case.

We may add here that language used in Section 28(2) is significant

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 45

and needs to be taken into account. The freedom to lay down “own

procedure” is confined to only a particular proceeding either under

Section 12 or Section 23(2) of the D.V. Act pending before the Court,

which is clearly seen from the use of the words “for disposal of an

application under Section 12, sub-section (2) of Section 23” after the

words “nothing in sub-section (1) shall prevent the Court from laying

down its own procedure”.

53] This would mean that generally the provisions of Cr.P.C.

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 Cr.P.C. 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 it’s last word. We have already held that Section 28 of the D.V.

Act announces clearly and without any ambiguity the intention of the

Parliament to apply the criminal procedure generally subject to the

exceptions given under the Act. So, the inherent power of the High

Court under Section 482 of Cr.P.C., subject to the self-imposed

restrictions including the factor of availability of equally efficacious

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 46

alternate remedy under Section 29 of the D.V. Act, would be available

for redressal of the grievances of the party arising from the orders

passed in proceedings under Sections 12, 18, 19, 20 21, 22 and 23

and also in respect of the offence under Section 31 of the D.V. Act.

54] We are also fortified in our view by the opinion expressed

by the Division Bench of the Gujarat High Court in the case of

Ushaben (supra), wherein it is observed that a proposition that

because the proceedings are of civil nature, the Cr.P.C. may not apply,

is too general a proposition to be supported in a case where the

Parliament, by express provision, has applied the provisions of Cr.P.C.

to the proceedings under the Act (Paragraph 16). It also held that the

remedy under Section 482 of Cr.P.C. would be available to an

aggrieved person, of course, subject to self-imposed restrictions on

the power of the High Court in this regard. Relevant observations of

the Division Bench appearing in paragraph 19 of the judgment are

reproduced as under :

“19. In view of the discussion and the observations made
by us herein above, once the provision of the Code has
been made applicable, it cannot be said that remedy
under Section 482 of the Code would be unavailable to the
aggrieved person. But the said aspect is again subject to
self-imposed restriction of power of the High Court that
when there is express remedy of appeal available under

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 47

Section 29 before the court of Session or revision under
Section 397, the Court may decline entertainment of the
petition under Section 482 of the Code. But such in any
case would not limit or affect the inherent power of the
High Court under Section 482 of the Code.”

55] At this juncture, we would like to go back to the

observations of the Hon’ble Apex Court made in paragraph 11 of its

judgment in Kunapareddy (supra) wherein the Hon’ble Supreme Court

finding that the petition in that case was essentially under Sections 18

and 20 of the D.V. Act held that though it could not be disputed that

these proceedings are predominantly of civil nature, the proceedings

were to be governed by Cr.P.C. as provided under Section 28 of the

D.V. Act. These observations would also make it clear to us that at

least a proceeding initiated for obtaining protection order under

Section 18 and monetary relief under Section 20 would be governed

by the provisions of Cr.P.C. in terms of Section 28 of the D.V. Act, in

spite of the fact that such proceeding is almost like a civil proceeding.

If these observations apply to a proceeding taken for obtaining reliefs

under Sections 18 and 20 of the D.V. Act, there is no warrant for us to

say that the observations would not be applicable to other

proceedings, like those under Sections 19, 21 and 22 of the D.V. Act.

In our humble opinion, these observations would also have their

applicability to the other proceedings discussed just now.

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 48

56] In the case of Sukumar Gandhi (supra), the Division Bench

of this Court, however, held that because the proceedings under

Section 12(1) initiated to obtain various reliefs under the Act, mainly

being of civil nature, no resort to Section 482 of Cr.P.C. could be taken

for the purpose of seeking their quashment. It was of the view that if

such an inference is made, it would defeat the very object of the D.V.

Act of providing for a speedy and effective remedy for enforcing an

amalgamation of civil rights. Accordingly, it held that barring the

prosecutions initiated for trying of the offences prescribed under the

Act, inherent power of the High Court under Section 482 of Cr.P.C.

could not be invoked for quashing of the proceedings. In view of the

discussion made and the conclusions drawn in the earlier paragraphs,

it is not possible for us to agree with the view so taken by the Division

Bench of this Court and we declare it to be an incorrect view. If we

accept the opinion of the Division Bench, the result, in our view, would

be quite opposite to what has been thought of by it. That apart,

making Section 482 of Cr.P.C. as not applicable may also amount to

doing harm to plain and clear language of Section 28 of the D.V. Act,

which expresses unequivocally and clearly the intention of the

Parliament, thereby excluding the possibility of resorting to external

aids and other rules of construction.

57] While there is no difference of opinion about what the

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 49

intention of the Parliament is, our disagreement is with the view that

this very intention gets defeated by applying the provision of Section

482 to the proceedings under Section 12(1) of the D.V. Act and it is

achieved by removing its applicability. The issue can be examined

from a different angle as well.

58] A plain reading of Section 482 of Cr.P.C., which saves

inherent power of the High Court, indicates that the power is to be

exercised by the High Court not just to quash the proceedings, rather

it has to be exercised for specific as well as broader purposes. The

exercise of the inherent power has been delimited to such purposes as

giving effect to any order under the Code or to prevent abuse of the

process of any Court or otherwise to secure the ends of justice. This

would show that the inherent power of the High Court can be invoked

not only to seek quashing of a proceeding, but also to give effect to

any order under the Code or to challenge any order of the Court,

which amounts to abuse of the process of the Court or generally to

secure the ends of justice. This would mean that not only the

respondent-man but also the aggrieved person-woman may feel like

approaching the High Court to give effect to any order or to prevent

abuse of the process of Court or to secure ends of justice. This would

show that this power is capable of being used by either of the parties and

not just by the respondent seeking quashing of the proceedings under

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 50

Section 12 of the D.V. Act. If this power is removed from Section 28 of the

D.V. Act, the affected woman may as well or equally get adversely hit,

and this is how, the very object of the D.V. Act may get defeated.

59] Now, one incidental question would arise as to from what

stage the provisions of the Cr.P.C. would become applicable and in our

view, the answer could be found out from the provisions of Sections

12 and 13 of the D.V. Act. A combined reading of these provisions

shows that the commencement of the proceedings would take place

the moment, the Magistrate applies his mind to the contents of the

application and passes any judicial order including that of issuance of

notice. Once, the proceeding commences, the procedure under

Section 28 of the D.V. Act, subject to the exceptions provided in the

Act and the rules framed thereunder, would apply. In other words,

save as otherwise provided in the D.V. Act and the rules framed

thereunder and subject to the provisions of sub-section (2) of Section

28, the provisions of the Cr.P.C. shall govern the proceedings under

Sections 12 to 23 and also those relating to an offence under Section

31 of the D.V. Act on their commencement.

60] In view of above, we express our agreement with the view

propounded through the majoritarian argument advanced by Shri

Sumant Deopujari, learned Public Prosecutor, Shri Kinkhede and Shri

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::
apl.578.11.jud 51

Dewani, learned Counsel and reject the minority view put forward by

Shri C.A. Joshi, learned Counsel for the respondent and answer the

second question as in the affirmative.

61] We record our appreciation for the assistance rendered to

us by Shri Amit Kinkhede, learned Counsel for the applicant, Shri

Sumant Deopujari, learned Public Prosecutor for the State, Shri C.A.

Joshi, learned Counsel for the respondent and Shri Sahil Dewani,

learned Counsel. The reference is returned accordingly.

(Mrs. Swapna Joshi, J.)

(S.B. Shukre, J.)

(B.P. Dharmadhikari, J.)
*sandesh

::: Uploaded on – 03/05/2018 04/05/2018 01:49:46 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation