Tuesday, 1 December 2015

Whether complaints under Domestic Violence Act can be quashed invoking Section 482 CrPC?

 In view of the aforesaid observations and
discussion, the following conclusions:
(i) The provisions of the Act provide for remedial
measures for civil rights of women but the machinery
provided is through criminal court.
(ii) Initiation of proceedings under Section 12 or 18 or
19 or 20 or 21 or 22 or 23 or 31 of the Act would begin
only when the Magistrate has passed any judicial order
including of issuance of notice for hearing.
(iii) Any person affected by any proceedings under the
Act, prior to initiation of proceedings under Section 12 of
the Act may prefer Special Criminal Application under
Article 226 of the Constitution if as per him, the
proceedings are beyond the scope and ambit of the Act
or without any authority in law. But this Court, while
entertaining the petition under Article 226 of the
Constitution may decline entertainment of the petition by

way of self-imposed restriction in exercise of the judicial
powers or may decline entertainment of the petition in
exercise of its sound judicial discretion.
(iv) Once proceedings are initiated under Section 12 or
18 or 19 or 20 or 21 or 22 or 23 or 31 either
independently or jointly on account of any judicial order
passed by the learned Magistrate including issuance of
notice, such proceedings shall be governed by the Code
of Criminal Procedure coupled with the power of the
Court under Section 28(2) to lay down its own procedure
for disposal of an application under Section 12 or under
sub-section (2) of Section 23 of the Act.
(v) Once the applicability of the Code of Criminal
Procedure has started on account of any judicial order
passed by the learned Magistrate including issuance of
notice either under Section 12 or 18 or 19 or 20 or 21 or
22 or 23 or 31 of the Act independently or jointly,
remedial measures to the aggrieved person as provided
under the Code of Criminal Procedure, 1973 can be said
as available. But the higher forum under the Code of
Criminal Procedure, may be the Court of Session or the

High Court, may decline entertainment of such
proceedings considering the facts and circumstances of
the case and as per the settled principles of law and in
accordance with law.
(vi) The aforesaid remedial measures provided under
the Code of Criminal Procedure would also include the
powers of this Court under Section 482 of the Code, but
the Court may, in a given case, decline entertainment of
the petition when there is express remedy provided
under the Code of Criminal Procedure or no case is made
out to prevent the abuse of process of any Court, or no
case is made out to secure the ends of justice.

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


SUO MOTU....Applicant(s)
Versus
USHABEN KISHORBHAI MISTRY....Respondent(s)

CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
 Date : 27/11/2015



1. Special Criminal Application No. 5313 of 2015 out of
which the present reference is made by learned single
Judge to the Division Bench of this Court is preferred by
the petitioners seeking to quash and set aside the
complaint being Case No. 1992 of 2009 filed by
respondent no.2 therein under the provisions of the
Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as “the Act”) which has been filed
before the court of Metropolitan Magistrate at
Ahmedabad.
2. When the said matter came up before the learned single
Judge of this Court (J.B. Pardiwala, J.) taking up Special
Criminal Applications (quashing) on 15.9.2015, the
learned single Judge was pleased to pass the following
order.
“1. By this application under Article 226 of the
Constitution of India, the petitioners- original accused,
have prayed for the following reliefs;
(A) Your Lordships be pleased to admit and allow this
petition;
(B) Your Lordships further be pleased to quash and set
aside the complaint being Case No.1992 of 2009 filed by
the respondent no.2 herein under the provisions of the
Protection of Women From Domestic Violence Act before
the Ld. Metropolitan Magistrate, Court No.1, Ahmedabad,

in the facts and circumstances of the case and in the
interest of justice.
(C ) Pending admission, hearing and final disposal of this
petition, Your Lordships be pleased to stay the further
proceedings/investigation in connection with the
complaint being Case No.1992 of 2009 filed by the
respondent no.2 herein under the provisions of the
Protection of Women From Domestic Violence Act before
the Ld. Metropolitan Magistrate, Court No.1, Ahmedabad
in the interest of justice.
(D) Any other and further orders which Your Lordships
deem fit and proper be kindly passed in the interest of
justice.
2. These very petitioners had, in fact, preferred Criminal
Misc. Application No.7749 of 2009 praying for the same
reliefs and the said application was disposed of by this
court vide order dated 24th August, 2015, which reads as
under:
“By this application under Section 482 of the Code of
Criminal Procedure, 1973, the applicants original accused
seek to quash the proceedings of the Case No.1992 of
2009 filed by the respondent no.2 under the provisions of
the Protection of Women from Domestic Violence Act,
2005, pending in the Court of the learned Metropolitan
Magistrate Court No.1, Ahmedabad.
Mr.Dave, the learned advocate appearing for the
applicants seeks permission to withdraw this application
with a liberty to file appropriate proceedings before the
appropriate forum in accordance with law.
Permission as prayed for is granted. This application is
disposed of as not pressed.
I clarify that I have otherwise not gone into the merits of
the matter.”
3. The learned counsel appearing for the applicants had
thought fit to withdraw the Criminal Misc. Application
No.7749 of 2009 in view of the decision of this Court
rendered by a learned Single Judge in the case of
Narendrakumar alias Nitinkumar Manilal Shah vs. State of
Gujarat & Anr., 2014 (2) GLR 1353 wherein the learned
Single Judge has taken the view that the proceedings
under the provisions of the Protection of Women From
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the Domestic Violence Act, 2005 are not criminal in
nature and, therefore, the remedy would be to invoke
civil jurisdiction and not the criminal jurisdiction of the
High Court under Article 226 of the Constitution of India
or under section 482 of the Code. It appears that a
coordinate bench, vide order dated 27th July, 2015
passed in the Special Civil Application No.15687 of 2014
dissented with such view. Although, there is a reference
of Narendrakumar (supra) in para-2(ii) of the judgment,
yet I do not find anything in the judgment on the basis of
which it could be said that Narendrakumar (supra) has
been held to be per incuriam or not a good law.
4. Whether a writ proceeding is civil or criminal, depends on
the nature of relief claimed and grounds for such relief.
"Civil Proceedings" or "Criminal Proceedings" are not
defined anywhere. The Constitution of India does not
define the expression, "Civil Proceeding" nor does the
General Clauses Act. The two proceedings are entirely
different and distinct, though at times it may overlap to
some extent. But the distinction between the civil
proceedings and criminal proceedings is well defined.
5. In Halsbury's Laws of England, Fourth Edition, Vol. 11,
Criminal and Civil proceedings have been distinguished
thus :-
"Civil proceedings have for their object the recovery of
money or other property, or the enforcement of a right or
advantage on behalf of the plaintiff: criminal proceedings
have for their object the punishment of a person who has
committed a crime. Criminal proceedings are not to be
used as a means of enforcing a civil right. Whether
conduct amounts to a crime may be determined by
ascertaining whether the conduct in question is followed
by criminal or civil proceedings. If the proceedings will
result in the punishment of a party, the conduct in
question will be a crime notwithstanding that it may be a
matter of small consequence. Where an act is
commanded or prohibited by statute, disobedience is
prima facie criminal unless criminal proceedings
manifestly appear to be excluded by the statute. An act
may be prohibited or commanded by a statute in such a
manner that the person contravening the provision is
liable to a pecuniary penalty which is recoverable as a
civil debt; in such an instance contravention is not a
crime."
6. In State of U.P. v. Mukhtar Singh, AIR 1957 All 505, the
Division Bench of the Allahabad High Court considered
the nature of the proceedings under Article 226 of the
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Constitution of India. One of the Judges, Beg, J. explaining
the nature of proceedings, held that whether a
proceeding is civil or not, depends on the nature of the
subject-matter of the proceeding and its object and not
on the mode adopted or the form provided for
enforcement of right. According to His Lordship, a
proceeding which deals with the right of civil nature and
otherwise of civil nature does not cease to be so just
because the party chooses resort to Article 226 of the
Constitution for enforcement of such right. The fact that a
right has been created by the Constitution or the forum
for its enforcement prescribed by it should not make any
difference, if the subject-matter of the right sought to be
agitated in the proceedings is itself of a civil nature, and
the object of the proceedings is merely the enforcement
of such a right, and not punishment of a wrong. On the
other hand, Desai, J. constituting the Division Bench was
of the view that a proceeding under Article 226 for a writ
is not a civil proceeding. According to His Lordship, much
confusion has resulted from the assumption, for which
there is no warrant at all, that jurisdiction is either civil or
criminal. There are several kinds of jurisdictions and
there is no foundation for the view that civil and criminal
jurisdiction exhaust the list of jurisdictions that can be
conferred upon a High Court. According to Desai, J.,
Article 225 retains the civil, criminal, testamentary,
intestate and matrimonial jurisdiction conferred upon the
High Courts under the Letters Patent and Article 226
confers additional jurisdiction and since it is the
additional jurisdiction, it must be different from the
jurisdictions viz. civil or criminal. (see M/s Nagpur Cable
Operators Association vs. Commissioner of Police,
Nagpur, AIR 1996 Bombay 180)
7. The Division Bench of the Bombay High Court in J.P.
Sharma v. The Phalton Sugar Works Ltd., AIR 1964 Bom
116, while dealing with the proceedings under Article 226
of the Constitution held as under :-
"The next argument of Mr. Joshi is that all proceedings
under Article 226 are either civil or criminal. When a
person asks for a writ of Habeas Corpus, that is a criminal
proceeding. But when a person asks for any other writ
than the Habeas Corpus, the proceedings are necessarily
civil proceedings. The proceedings started under Article
226 are not proceedings under any Act, but are
proceeding to quash the orders made under certain Acts,
or for orders restraining the officers to take action under
certain Acts. They are, therefore, civil proceedings and
not proceedings under the Act. It is not possible to accept
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the argument. Mr. Joshi admits that the proceedings for
the issue of a writ of Habeas Corpus is a criminal
proceeding. He admits that it is criminal proceeding
because it is a relief asked against the arrest or retention
of a person in contravention of the provisions of the
criminal law. If that be so, we see no reason why we
should hold that even though the relief asked is a relief
against an order made under taxation laws or
enforcement of the taxation laws against a person, the
proceedings should not be revenue in nature. On the
other hand, it would be logical to hold that the nature of
the relief which is asked for in each case under Art.226
should be determinative of the nature of that proceeding.
If the relief asked is against the exercise of powers under
criminal law, the proceedings would be criminal
proceedings. If the relief asked is for enforcement or in
exercise of a civil right to prevent infringement of a civil
right, the proceedings will be civil in nature. Similarly, if
the relief is sought in relation to the enforcement of the
taxation law, the proceedings would be revenue in
nature. It is difficult to accept the contention of Mr. Joshi
that proceedings under Art.226 are either civil or criminal
in nature. On the other hand, we agree, with respect,
with the view taken by the Patna High Court that the writ
application may be a civil proceeding according to the
nature of the application and the questions raised and
decided in the proceedings. In the instant case, as
already stated, the assessee sought to get quashed the
notices issued under Section 34 of the Income-tax Act,
and also prayed for an order restraining the Income-tax
Officer from taking any action in enforcement of the
notices. In other words, in the proceedings under the
Income-tax Act, as already stated, are revenue in nature.
The writ proceedings with which we were dealing,
therefore, were revenue in nature."
8. The question whether a writ proceeding under Article
226 of the Constitution of India is a civil proceeding or
criminal proceeding is considered at great length in the
judgment of the Apex Court in I.S.A. Narayan Row v.
Ishwarlal Bhagwandas, AIR 1965 SC 1818. The Apex Court
observed thus :-
". . . . . The expression "civil proceedings" is not
defined in the Constitution, nor in the General
Clauses Act. The expression in our judgment covers
all proceedings in which a party asserts the
existence of a civil right conferred by the civil law
or by statute, and claims relief for breach thereof. A
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criminal proceeding on the other hand is ordinarily
one in which if carried to its conclusion it may
result in the imposition of sentences such as death,
imprisonment, fine or forfeiture of property. It also
includes proceedings in which in the larger interest
of the State, orders to prevent apprehended breach
of the peace, orders to bind down persons who are
danger to the maintenance of peace and order, or
orders aimed at preventing vagrancy are
contemplated to be passed. But the whole area of
proceedings, which reach the High Courts as civil
and criminal. . . . . "
The Supreme Court further observed in the said report as
under :-
". . . . .The character of the proceedings, in our
judgment, depends not upon the nature of the
Tribunal which is invested with authority to grant
relief, but upon the nature of the right violated and
the appropriate relief which may be claimed. A civil
proceeding is, therefore, one in which a person
seeks to enforce by appropriate relief the alleged
infringement of his civil rights against another
person or the State, and which if the claim is
proved would result in the declaration - express or
implied of the right claimed and relief such as
payment of debt, damages, compensation, delivery
of specific property, enforcement of personal rights,
determination of status etc."
9. The Supreme Court, in the case of Somabhai
Mathurbhai Patel vs. New Shorrock Mills, 1983 GLH 273,
has taken the following view;
While we are not inclined to grant special leave at
this stage, we, however, record our disapproval of
the way in which the learned Single Judge has dealt
with the judgment of Hon. M. C. Trivedi, J which
dealt with the identical point and which judgment
was binding on the learned Judge. It is not open to
a learned Single Judge to reject the ratio of the
decision of another learned Single Judge of the
 same High Court by merely saying that attention of
M. C. Trivedi J. was not invited to the decision of
Supreme Court which may have an impact on the
point under examination. Judicial comity demands
and this Court has often reiterated that in that
event the matter should be referred to a larger
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Bench. But in this case, learned Judge has observed
that he is unable to agree with the view taken by M.
C. Trivedi, J. because in his view the question was
directly covered by an earlier decision of this Court,
That aspect of the matter itself needs examination.
Therefore, if the matter at any stage goes back to
the High Court and the same question is raised in
the interest of justice it should be heard by a
Division Bench. Mr. Kaji, learned Advocate for the
petitioner made another grievance that the relief
was granted in the absence of a pleading in the
plaint on the question of tenancy as covered by
Section 13(1)(f) of the Bombay Rent Act as
applicable in Gujarat. Mr. Arun Mehta, learned
Advocate for respondent appearing on caveat
conceded that as the matter be remanded to the
District Judge, Nadiad, plaintiff will seek permission
for appropriate amendment of the plaint. If such an
application is made, learned Judge may deal with it
according to law and it should not be understood
that this Court has directed such an amendment
being made.
With these observations, the special leave petition
is dismissed.
10. In view of such conflict, I am of the view that the
matter should be heard by a Division Bench so that this
issue can be resolved once and for all.
11. Let this matter be placed before the Hon’ble the
Acting Chief Justice for appropriate order.”
3. The aforesaid shows that the view taken by the another
learned single Judge (G.R.Udhwani, J.) in the case of
Narendrakumar @ Nitinbhai Manilal Shah & Ors v. State
of Gujarat & Anr, in Misc. Criminal Application No. 19853
of 2013 with Misc. Criminal Application No.18703 of 2013,
reported at 2014 (2) G.L.R. 1353 was brought to the
notice of the learned single Judge as well as another
decision of another learned single Judge (N.V. Anjaria, J.)
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in the case of Rameshbhai Ramjibhai Desai in Special
Civil Application No. 15687 of 2014, wherein different
view was found as taken by another learned single Judge.
It appears that the learned single Judge having found
conflict in the above-referred two decisions of the two
learned single Judges, has observed that the matter be
heard by a Division Bench so that the issue can be
resolved once and for all. Under the circumstances, the
present reference before the Division Bench of this Court.
4. Considering the facts and circumstances, the office to
give Reference number to the present proceedings as
Criminal Reference Number in Special Criminal
Application No. 5313 of 2015.
5. We have heard Mr.Samir Dave, learned counsel
appearing for the respondent and Mr.Mitesh Amin,
learned Public Prosecutor, appearing for the State.
6. The factual controversy of the present case can be
summarized as under:-
6.1 As per the petitioners of Special Criminal Application
No. 5313/15, the marriage of respondent no.1 herein had
taken place with Dharmesh Kishorbhai Luhar at Mahuva,
District-Bhavnagar. The original petitioner no.1 is the
mother-in-law and original petitioner nos. 2 and 3 are
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brother-in-law and sister-in-law respectively. Respondent
no.1 herein is the complainant wife. A child, namely,
Krishna is also born to the respondent no.2 and as per
the petitioners, respondent no.2 left the matrimonial
home and took away the daughter with her and since
5.7.2007, she is residing separately. On 16.4.2009,
husband Dharmesh Kishorebhai Luhar has filed a petition
under Section 13(1) of the Hindu Marriage Act before the
Family Court at Ahmedabad seeking dissolution of
marriage and the same is registered as Family Suit No.
501 of 2009. The Family Court has issued summons to
the respondent therein-respondent no.2 in the main
matter which is served upon her on 7.5.2009. On 16.5.09,
as per the petitioners, a complaint is lodged by
respondent no.2 with Odhav Police Station being C.R. I-
184 of 2009 for the offence under Sections 498-A and
114 of Indian Penal Code. On 24.6.2009, the petitioners
preferred an application being Criminal Misc. Application
No. 7191 of 2009 under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter to be referred to as
“the Code”), before this Court for quashing of the said
complaint and this Court allowed the said petition. On
11.6.2009, the present complaint being 1992 of 2009
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under the Act is filed by the respondent no.2 before the
learned Metropolitan Magistrate Court, Ahmedabad and
summons are issued in the said complaint. As per the
petitioners, Criminal Misc. Application No. 7749 of 2009
under Section 482 of the Code was also preferred by the
petitioners for quashing of the said complaint, but on
24.8.2015, in view of the decision of this Court in the
case of Narendrakumar (supra), the said petition was
withdrawn with liberty to file appropriate proceedings
before the appropriate forum. Under the circumstances,
the petitioners have preferred the present petition before
this Court.
7. Before we further consider the matter, we may, at the
first instance, consider the dissenting views of the two
Hon’ble Judges in the case of Narendrakumar (supra) and
in the case of Rameshbhai R. Desai (supra). In the case of
Narendrakumar (supra), the learned single Judge, after
considering the scheme of the Protection of Women from
Domestic Violence Act, 2005 including the objects and
reasons of the Act, recorded the reasons from paras-15 to
17 as under:-
“15. The argument that expression `violence necessarily
connotes criminality overlooks Section 3(iv) which defines
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economic abuse. The clause refers to deprivation of all or
any economic or financial resources to which the
aggrieved person is entitled or requires out of necessity
including household necessities, stridhan, property jointly
or separately owned by the aggrieved person, payment
of rental related to the shared household and
maintenance, disposal of household effects, any
alienation of assets, shares, securities etc. in which
aggrieved person has an interest or is entitled to use by
virtue of domestic relationship or which may be
reasonably required by the aggrieved person. Expression
`domestic violence also includes prohibition or restriction
to continued access to resources or facilities which the
aggrieved person is entitled to use or enjoy by virtue of
the domestic relationship including access to the shared
household. Thus `economic abuse being part of
expression `domestic violence as defined in Section 3 of
D.V.Act constitute abuse of various civil rights of an
aggrieved person. In addition, various kinds of mental
and physical harms, injuries, harassments and abuses to
a woman in domestic relationship constituting various
offences under IPC would constitute `domestic
violence. Thus domestic violence includes objectionable
acts punishable under IPC and other objectionable
commissions or omissions in relation to civil or human
rights of aggrieved person. Pertinently, except as under
Section 31, the Magistrate is not empowered to take
cognizance of any objectionable criminal acts within the
meaning of IPC, while exercising the jurisdiction under
D.V.Act. Having regard to the nature of reliefs which can
be prayed for by aggrieved person in an application
under D.V.Act, it is clear that the D.V.Act predominantly
focuses on fallouts of domestic violence resulting into
deprivation of or necessitating securing of various civil
rights of aggrieved person like residence in a shared
household, protection of aggrieved person, right to
residence, monetary reliefs, orders for custody of
child/children, orders for compensation etc. The criminal
acts are left to be dealt with by aggrieved person with
appropriate complaint even as the police officer,
protection officer, service provider or Magistrate in know
of domestic violence is inter-alia obliged to inform the
aggrieved person of her right to file a complaint under
Section 498A of IPC, as contemplated under Section 5 of
D.V.Act. Pertinently, proviso to Section 5 cautions and
reminds the police officer of his duty to proceed in
accordance with law upon receipt of the information of
commission of a cognizable offence. Thus, in addition to
the reliefs available to the aggrieved person under
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D.V.Act, acts of commission of a cognizable offence
against the aggrieved person can be separately
proceeded with. This is one more indicator indicating the
focus of D.V.Act on the reliefs for aggrieved person, other
than punishment to the offender.
15.1 From the scheme of D.V.Act, as aforementioned, the
emphasis on `aggrieved person, `domestic violence,
`domestic incident report is eloquent. As per Section
12, aggrieved person or protection officer or any other
person on behalf of the aggrieved person is entitled to
move an application, and as noticed in Section 2(a),
`aggrieved person is a woman in domestic relationship
with `respondent alleging a commission of domestic
violence by such respondent. Thus the application under
Section 12 can be moved by or on behalf of a woman
suffering from domestic violence. Thus the `domestic
violence is only the cause of action for reliefs under
Sections 17 to 23 of the D.V.Act.
15.2 Further, the provisions are also made for
establishment of various facilitators like shelter homes,
service providers, protection officers to assist the
Magistrate and aggrieved person as also to enhance
her knowledge about rights available to her under
D.V.Act or IPC or Dowry Prohibition Act. Thus the
remedies contemplated under D.V.Act except the one
under Section 31 are not remedies under criminal law.
Domestic violence may confer a cause upon the
aggrieved person to proceed against the `respondent
under criminal law and or under D.V.Act. Therefore,
though the expression `violence connotes criminality
referable to criminal mindset, the object of act being to
assist the aggrieved person suffering from domestic
violence by providing to her various reliefs as above and
the act of domestic violence not being punishable under
D.V.Act, it cannot be said that mere use of expression
`violence would render the applications under Sections
12, 17 to 24 of the D.V.Act as criminal proceedings. The
fact that the civil remedies are provided to aggrieved
person is also made eloquent by objects and reasons of
D.V.Act as well.
15.3 True that the object of Section 31 is to punish the
offender for violation of protection orders issued under
Section 18 of D.V.Act. Breach of protection orders is
classified as cognizable and non-bailable offence under
Section 32, and upon testimony of the aggrieved person,
the Court may conclude that offence under Sub-sec.(1) of
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Section 31 has been committed by the accused.
Protection order can be issued under Section 16 and its
breach is cognizable under Section 32. The purpose of
Sections 31 and 32 appears to be to ensure compliance
of protection orders, if necessary, by enforcing a criminal
machinery against the offender. It is only while hearing a
case under Section 31 that a charge can be framed also
under Section 498A of IPC or any other provision of that
Code or the Dowry Prohibition Act, as the case may be,
on disclosure of the commission of an offence under
those provisions. Pertinently, except in relation to few
provisions like Section 5 and 31, there is no reference to
the expression `offence, `crime or the like in entire
D.V.Act. Therefore, even by virtue of doctrine of
exclusion, an inference that none of the commissions or
omissions except those made specifically punishable, the
D.V.Act not intended to punish the `respondent.
15.4 For the foregoing reasons, it cannot be said that the
acts or omissions constituting `domestic violence as
defined in Section 3 of D.V.Act constitute an offence
under D.V.Act so as to attract Section 4(2) of Cr.P.C.
15.5 In contrast, in order to attract Section 4(2) of Cr.P.C.,
the commissions or omissions complained of must
necessarily be an offence as defined in Section 2(n) of
Cr.P.C. Reference to various terms as quoted in para 13.1
of this judgment as also the constitution of various courts
to try offences; the procedure to investigate or inquire
into the offences; obligations cast upon the police or
others for prevention and detection of offences;
provisions for maintenance of public order and tranquility
etc., all go to indicate that predominant object of Cr.P.C.
is to provide for the procedure to deal with offences.
Since the scheme of Cr.P.C. predominantly prescribes a
procedure to try offences, Section 482 of Cr.P.C. also can
be applied in relation to offences and not in relation to
civil proceedings.
15.6 The procedure contemplated under Section 28 of
D.V.Act applying the Criminal Procedure Code to the
proceedings under Sections 12, 18 to 23 and 31 of
D.V.Act would not ipso facto attract Section 482 of Cr.P.C.
Having regard to the scheme of D.V.Act, Section 28 while
adopting the provision of Cr.P.C. intends to apply
procedure necessary for passing orders for securing the
civil rights contemplated under Sections 12, 18 to 23 of
D.V.Act. To illustrate, a Magistrate may issue the
summon or warrant for securing the presence of
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`respondent as defined in Section 2(q) of the D.V.Act.
Pertinently, Section 28, while referring to various
provisions of D.V.Act prefixes the expression `offence to
Section 31 only thus making the intent of the act very
specific and eloquent. In other words, the expression
`offence is prefixed to Section 31 as referred to in Section
28, while the said expression is omitted in Section 28 in
reference to other provisions of D.V.Act, because Section
31 declares the breach of protection order an offence and
other provisions do not. Further, under the very provision,
Magistrate is empowered to prescribe its own procedure
as well in which event the Magistrate may not have to
rely upon Cr.P.C.
15.7 Thus, mere use of the provisions of Cr.P.C. for
limited purposes of Sections 12, 18 to 23 and 31 of
D.V.Act would not ipso facto attract Section 482 of Cr.P.C.
15.8 Further, `domestic violence as defined in Section
3 of the Act has attributes of crime inasmuch as such
acts may constitute an offence under one or other
provisions of IPC. The Magistrate is one of the authority
contemplated under Cr.P.C. to deal with offences. It
appears that, keeping the above aspect in view, it was
deemed appropriate to authorise a judicial mind wellversed
with the procedure dealing with crime, also to
deal with the proceedings arising under D.V.Act since
criminal acts as defined under Section 3 of D.V.Act give
rise to cause of action under that Act. Furthermore, in
case of breach of protection orders, the Magistrate is
empowered to proceed under Section 31 of D.V.Act and
also to frame charge for the offence under Section 498A
of IPC. Therefore also it appears that the Magistrate has
been selected as competent judicial authority to deal with
the proceedings arising under D.V.Act and the Court of
Sessions is contemplated as competent appellate
authority. Thus merely because judicial authorities
contemplated under Cr.P.C are found competent to deal
with the proceedings arising under D.V.Act, it cannot be
argued that such proceedings deal with crime.
16. The decision relied upon by learned Counsel for the
petitioners in Inderjit Singh Grewal (supra) does not
address the question as above. It merely invokes Section
468 of Cr.P.C. in a case arising under D.V.Act. Therefore,
cannot be cited as an authority laying down the
proposition of law discussed by this Court as above.
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17. In above view of the matter, no substance is found
in these petitions. The petitions fail and are summarily
dismissed.”
8. The aforesaid shows that the learned single Judge found
that civil remedies are provided under the Act to the
aggrieved person. The learned single Judge did record
that breach of the protection order is considered as an
offence punishable under Section 31 of the Act and the
same is also made cognizable and non-bailable under
Section 32. But under the other provisions of the Act,
there is no reference to the expression “offence or crime”
and, therefore, would not fall within the scope and ambit
of Section 4(2) of the Code. The learned single Judge
found that Section 4(2) of the Code is to be understood
for an offence as defined under Section 2(n) of the Code,
then only, the scheme of the Code including the provision
of Section 482 of the Code can be applied, but not in
relation to civil proceedings. The learned single Judge
found that applicability of the Code as per Section 28 of
the Act would not ipso facto attract Section 482 of the
Code and, therefore, the learned single Judge ultimately
found that the remedial measures under Section 482 of
the Code would not be available to the petitioners and
the petition was dismissed.
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9. Whereas another learned single Judge of this Court (N.V.
Anjaria,J.), in the case of Rameshbhai R. Desai (supra),
after considering the submissions observed in paras 5 to
12 as under:-
“5. For examining the submission that on the basis of
Narendrakumar (supra), this petition could be filed
and is entertainable, the said decision may be adverted
to beforehand. In that case the Court addressed these
two questions-(i) whether Domestic Violence Act provides
for civil remedies?, (ii) If yes, whether Section 482 of
Code of Criminal Procedure can be applied for quashing
of such civil proceedings?
5.1 The petitioners in Narendrakumar (supra) had
prayed for the quashment of the proceedings instituted
under the provisions of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter mentioned as
the Domestic Violence Act for sake of brevity). While the
facts are not available from the judgment, the
proceedings under the Domestic Violence Act were
prayed to be quashed and set aside at their threshold,
that is at the stage of initiation itself, by seeking an
exercise of powers of the High Court under Section 482 of
the Code of Criminal Procedure, 1973. The question dealt
with in the present case is remarkably different and
differentiable.
6. It may be true that various relief contemplated to be
provided for, to the aggrieved person-the woman creates
civil rights. Section 17 of the Act confers right on women
to reside in a shared household, which is defined under
the Act; Section 18 is with regard to granting of various
protection orders against the facts of domestic violence;
Section 19 empower the Magistrate to pass residence
orders while disposing of application under Section 12(1)
of the Act; section 20 is for granting of monitory reliefs to
the aggrieved persons whereunder the Court may award
amount under different heads; Section 21 deals with the
orders of custody of any child or children to the
aggrieved person. Under Section 22, in addition to the
above relief, Magistrate can pass compensation orders.
All these reliefs can be prayed for by an aggrieved person
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by filing an application to the Magistrate. At the same
time, examination of the Scheme of the Domestic
Violence Act, it would be seen, as discussed hereinafter,
the remedial avenue and the machinery to secure the
relief is made available under the Code of Criminal
Procedure, 1973.
6.1 Section 12 which falls under Chapter IV in the Act
Procedure for Obtaining Order and Reliefs, provides that
an aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person can present an
application to the Magistrate seeking one or more relief
under the Act. Section 27 of the Domestic Violence Act
deals with the jurisdiction which reads as under&
27. Jurisdiction-(1) The court of Judicial
Magistrate of the first class or the Metropolitan
Magistrate, as the case may be, within the local
limits of which-
(a) the person aggrieved permanently or
temporarily resides or carries on
business or is employed;
(b) the respondent resides or caries on
business or is employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a
protection order and other orders under this Act
and to try offences under this Act.
(2) Any order made under this Act shall be
enforceable throughout India.
6.2 Section 28 is about the procedure which being also
relevant, is reproduced hereinbelow&
28. Procedure-(1) Save as otherwise provided
in this Act, all proceedings under sections 12,
18, 19, 20, 21, 22 and 23 and offences under
section 31 shall be governed by the provisions
of the Code of Criminal Procedure, 1973 (2 of
1974).
(2) Nothing in sub-section (1) shall prevent the
court from laying down its own procedure for
disposal of an application under section 12 or
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under sub-section (2) of section 23.
6.3 Under Section 27 above, the jurisdiction is vested
with the Court of Judicial Magistrate of First Class or the
Metropolitan Magistrate as the case may be. The
Magistrate here is to be understood as a Magistrate
defined under Section 2(i) of the Act. Section 28
expressly says about governing procedure to be under
the Cr.P.C., though leeway is permitted to the Magistrate
to adopt its own procedure for disposal of application
under Section 12 or under Section 23(2) of th Act, this is
to permit due elasticity in the procedure to meet with the
object and purpose of the Act, nature of disputes to be
dealt with under the Act and the relief to be granted.
6.4 Magistrate is defined under Section 2(i) and means
the Judicial Magistrate of the First Class or as the case
may be, the Metropolitan Magistrate, exercising
jurisdiction under the Code of Criminal Procedure, 1973
(2 of 1974) in the area where the aggrieved person
resides temporarily or otherwise or the respondent
resides or the domestic violence is alleged to have taken
place.
6.5 Section 31(1) of the Act provides for penalty for
breach of protection order by respondent. Sub-section (2)
again says that the offence under sub-section (1) as far
as practicable be tried by the Magistrate who has passed
the order, the breach of which is alleged to have been
caused by the accused. Sub-section (3) says that while
framing charges under sub-section (1) the Magistrate
may also frame charge under Section 498-A of the Indian
Penal Code, 1860 or any other provision of IPC or Dowry
Prohibition Act, 1961, if the facts of the case disclose
commission of any such offence. The offence under subsection
(1) of Section 31 is treated to be cognizable
offence under Section 32 of the Act. as regards the proof
of this offence, according to sub-section (2) of Section 32,
upon the sole testimony of the aggrieved person the
Court may conclude that the offence under Section 31(1)
has been committed.
6.6 The Protection of Women from Domestic Violence
Rules, 2006 framed under Section 37 of the Act, stand in
tune with the aforesaid statutory provisions. Referring to
some of the relevant Rules in this regard, Rule 15, Rule 6
provides for applications which are made under Section
12 of the Act, to be made to the Magistrate in the
prescribed form. Rule 15 dealing with breach of the
protection orders stands in consonance with the parent
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provision under Section 31 and 32 of the Act. They taken
together firmly suggest that the machinery to secure the
enforcement of relief under the Act is under the Criminal
Procedure Code.
6.7 Except that the relief which may be availed to the
aggrieved person under the Act is civil in nature, in the
entire scheme of the Act for seeking and securing these
relief, the remedies are provided for before the Criminal
Courts. An Application for various relief under Section 12
is to be filed before the 'Magistrate' who is defined.
Section 27 of the Act deals with jurisdiction to provide
that the Court of the Judicial Magistrate of the First Class
or the Metropolitan Magistrate having the jurisdiction
within the local limits as provided under the Section, shall
be the competent court to grant the protection order. The
protection orders are the orders under Section 18.
Section 18 says that the Magistrate after giving the
aggrieved person opportunity of hearing, passed order
under sub-clauses (a) to (g).
6.8 Vis-a-vis the above provisions under the Act,
reverting to the provisions of the Code of Criminal
Procedure, Section 6 of the Code of Criminal Procedure,
1973 may be referred to which mentions the class of
Criminal Courts. According to this Section, besides the
High Courts and Courts constituted under any law, there
shall be Criminal Codes of following classes in every
stake. (i) Court of Session, (ii) Judicial Magistrate of the
First Class and in any Metropolitan Magistrate, (iii) Judicial
Magistrate of the Second Class and (iv) Executive
Magistrate. Section 4(1) of the Code provides that trial of
the Indian Penal Code and other laws shall be
investigated, inquired into, tried and otherwise dealt with
according to the provisions of the Code. Section 5, the
savings clause, provides as nothing contained in this
Court shall, in absence of a specific provision to the
contrary affect any special law for the time being in force
or any special jurisdiction of power conferred or
prescribed by any law for the time being in force.
6.9 The Domestic Violence Act of 2005 is a statute of its
own kind designed to provide an umbrella of protection to
the women who are victims of domestic violence. This
law is enacted with a blend of provisions where the relief
available under the provisions of the Act are of civil
nature but the machinery provided for in the Act to
secure the relief is envisaged under the Criminal
Procedure Code. The very object of providing a speedy
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remedy and effective protection of rights can be said to
have guided the Legislature to engraft the penal and
procedural provisions of the Code of Criminal Procedure
for enforcement of relief under the Act and for enjoyment
of rights availed to the aggrieved person.
7. The Kerala High Court in Baiju son of Chandran Nair
Vs Latha in Criminal Misc. Application No.969 of
2011 decided on 09th June, 2011 considered the
question whether the court of Magistrate while
discharging functions under the Domestic Violence Act,
2005, is a criminal court inferior to court of Session and
the High Court. The Court also addressed whether the
judgment of Court of Session in an appeal filed under
Section 29 of the Act is amenable to the revisional
powers of the High Court under Sections 397(1) and 401
of the Code of Criminal Procedure, 1973. The application
in which the above questions were considered, was filed
under Section 482, Cr.P.C. The contention on behalf of
the petitioners before the Kerala High Court was inter alia
that as the Magistrate empowered under the Act,
exercises duties, functions and powers which are of a civil
nature and hence it cannot be said that Magistrate while
acting under the provisions of the Act, becomes an
inferior criminal court for the purpose of Sections 397 and
401 of the Code. It was also the case canvassed that the
judgment and order in appeal under Section 29 of the Act
cannot be subjected to challenge under Section 397(1) of
the Code because the Domestic Violence Act, 2005 does
not expressly provide so.
7.1 The Kerala High Court after considering its own other
decisions and decisions of other High Courts, concluded
that even though the relief if the Magistrate is required
and authorized to grant under certain provisions of the
Act are of a civil nature, it cannot be said that the
Magistrate while exercising those functions is not acting
as a criminal court. It observed that under Section 29
appeal is provided to lie before the Court of Sessions and
not to the Sessions Judge. It ruled that An appeal is
provided to the Court of Session under Sec.29 since the
court of the Magistrate whose order is under challenge is
criminal court inferior to the Court of Sessions..
7.2 As regards amenability of judgment of the Court of
Session in appeal under Section 29 of the Act it was
observed, and held by the Kerala High Court that the
appeal is governed by the provisions of the Code though
right of appeal is provided by Sec.29 of the Act. The Act
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does not say that judgment of the Court of Session is
subject to challenge before any other court. Under
Section 397(1) of the Code, High Court may call for and
examine the records of any proceeding before any
inferior criminal court. It was stated that a Court of
Session is a criminal court inferior to the High Court for
the purpose of exercise of revisional power under
Sec.397(1) and 401 of the Code. Sec.397(1) of the Code
empowers the courts specified therein to call for records
of the inferior criminal court and examine them for the
purpose of satisfying themselves as to whether a
sentence, finding or order of such inferior court is legal,
correct or revisional power is to give the superior criminal
courts supervisory jurisdiction in order to correct
miscarriage of justice arising from misconception of law,
irregularity of procedure, neglect of proper precautions or
apparent harshness of treatment which has resulted on
the one hand in hardship to individuals. The power of
revision is supervisory in character enabling the superior
courts to call for records of the inferior criminal courts
and examine them for the purpose of satisfying
themselves that the sentence, finding, order of
proceeding of such inferior court is legal, correct or
proper. The decision of the Kerala High Court lays down a
correct proposition and deserves to be followed.
7.3 It is not incongruous that the statute is of civil nature,
and/or the relief available under the provisions may also
relate to civil rights, but the machinery to procure the
relief and the rights is provided to be before criminal
court. The instances are Section 155 of the Gujarat
Municipalities Act, 1960 or Section 16(1) of the Indian
Telegraph Act. The remedial avenues under such laws is
before the Magistrate. The further question to be probed
is whether court of Magistrate before whom the remedy
is provided, is an inferior or subordinate criminal court to
be amenable to the appellate or revisional jurisdiction in
the hierarchy of higher courts under the Code of Criminal
Procedure. Here a distinction may again arise-whether a
court of Magistrate which is otherwise one of the
hierarchical courts under Section 6 of Cr.P.C. is a persona
designate under the statute concerned or he functions as
part of a criminal court in the hierarchy of such courts
provided under Cr.P.C. In case of later, such court would
be an inferior criminal court and would be amenable to
normal appellate and revisional jurisdiction envisaged
under the Criminal Procedure Code.
8. In Dargah Committee, Ajmer Vs. State of
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Rajasthan, [AIR 1962 SC 574], the Supreme Court
dealt with a question whether magistrate acting under
Section 234 of Ajmer Merwara Municipalities Regulations,
acts as a inferior criminal court to the High Court. Under
the said provision, the proceedings for recovery of tax
were provided before the Additional Tehsildar &
Magistrate of Second Class. Against order passed by the
magistrate, appellant preferred criminal revision
application before the sessions court, Ajmer, the revision
was dismissed upon which the revisionist moved the High
Court of Judicature for Rajasthan in its revisional
jurisdiction, before which preliminary objection was that
the criminal revision application was incompetent since
the magistrate who entertained respondent No.2s
application made under Section 234, was not an inferior
criminal court under Section 439 of Criminal Procedure
Code. The Supreme Court held that looking to Section
234, it was clear that proceedings initiated thereunder
before a magistrate were not more than recovery
proceedings. The Supreme Court took note that all the
questions which may legitimately be raised against the
validity of the notice served under Section 153 for
carrying out the repairs or against the validity of the
claim made by the Committee under Section 222 to
recover the sum as a tax, could be and ought to be raised
in an appeal provided under Section 93(1) of the said Act
and if appeal is not preferred or is dismissed, then all
those points are treated concluded and can no more be
raised in the proceedings under Section 234. It was
observed that that is why the nature of inquiry
contemplated by Section 234 was very limited and it
prima facie partook the character of ministerial inquiry
rather than judicial inquiry
8.1 The Supreme Court held that the magistrate who
entertained the application under Section 234 was not an
inferior criminal court. The court stated,
If at all, this would at best be a proceeding of a
civil nature and not criminal. That is why, we
think, whatever may be the character of the
proceeding, whether it is purely ministerial or
judicial or quasi-judicial, the Magistrate who
entertains the application and holds the enquiry
does so because he is designated in that behalf
and so he must be treated as a persona
designata and not as a Magistrate functioning
and exercising his authority under the Code of
Criminal Procedure. He cannot therefore be
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regarded as an inferior criminal court. That is
the view taken by the High Court and we see no
reason to differ from it.
8.2 An Allahabad High Court decision in Saman Ismaeel
Vs. Rafiq Ahmad and anr.[2002 Cri.L.J. 3648] may
also be referred in which case, with reference to the
provisions of Muslim Woman (Protection of Right on
Divorce] Act, the High Court of Allahabad having regard
to the preamble of the Act and the statement of objects
and reasons held that they clearly show that the Act had
been passed with the purpose to provide maintenance to
a divorce muslim woman. The scheme of the Act, it was
observed, which extends to only seven sections showed
that the complete procedure for conducting the
proceedings for challenging the correctness of the order
of the Magistrate have not been provided. On the basis of
the provisions of the said Act, the High Court stated that
the Act makes reference to a Magistrate and the Code of
Criminal Procedure, 1973 at several places. In that Act
also, Section 2(c) defines that a Magistrate would mean a
Magistrate of First Class exercising jurisdiction under the
Code of Criminal Procedure, 1973. The provisions of
Domestic Violence Act, its Scheme and the connotation
Magistrate to be one under the Cr.P.C. are quite
comparable.
9. Coming to Narendrakumar (supra) again at this
stage of discussion, attentively seen, it rather leans
towards the reasoning adopted hereinabove, when it
observed in paragraph 15.3 that True that the object of
Section 31 is to punish the offender for violation of
protection orders issued under Section 18 of D.V.Act.
Breach of protection orders is classified as cognizable and
non-bailable offence under Section 32, and upon
testimony of the aggrieved person, the Court may
conclude that offence under Sub-sec.(1) of Section 31 has
been committed by the accused. Protection order can be
issued under Section 16 and its breach is cognizable
under Section 32. The purpose of Sections 31 and 32
appears to be to ensure compliance of protection orders,
if necessary, by enforcing a criminal machinery against
the offender..
9.1 Narendrakumar (supra) does not lay down even
impliedly much less expressly, that in a case where order
of the Judicial Magistrate is subjected to Appeal under
Section 29 of the Act, judgment and order passed by the
Sessions Court in Appeal could be challenged in a writ
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proceedings. Narendrakumar (supra) does not efface
the remedy of Appeal or Revision under the hierarchy of
criminal courts as per the provisions of the Code of
Criminal Procedure which is made applicable to the
proceedings of the Domestic Violence Act. It is not
possible to stretch the ratio of Narendrakumar (supra)
so as to comprehend the same to be anything else than
what it comprehend in paragraph 15.7. It has to be stated
that ratio of the said decision was in the context of and
confined to its own facts and the questions framed by the
Court to be addressed.
9.2 For Narendrakumar (supra) suffice it is to say that
the nature of relief available under a particular law and
the machinery to secure the relief may be different and
for both, the legislature may make provisions under
different nature of laws-civil and criminal. Their coexistence
need not be read to create a conflict of any
kind in their operation or application.
10. The scheme of the Protection of Women from
Domestic Violence Act, 2005, as surveyed hereinabove,
suggests that right from the initiation of the proceedings,
the remedial machinery is provided before the court of
Magistrate of First Class before whom application under
Section 12 of the Act would lie, and against the order
made by the Magistrate, appeal is provided to the Court
of Session under Section 29 of the Act. This is in the
background of an express provision under Section 27
providing for jurisdiction investing the same with the
Court of Judicial Magistrate of First Class or the
Metropolitan Magistrate, as the case may be, as well as
Section 27 providing that all proceedings under Sections
12, 18, 19, 20, 21, 22 and 23 and offences under Section
31 shall be governed by the Code of Criminal Procedure,
1973.
10.1 The legislature has implanted the provisions of
Code of Criminal Procedure, 1973 (2 of 1974) not only for
procedural purpose under the Sections which deal with
relief orders, but also for the purpose of remedy of
appeal, etc. Considering the relevant provisions under
the Domestic Violence Act dealing with the application to
the Magistrate, jurisdiction, procedure, appeal as well as
provisions under Sections 31 and 32 of the Act dealing
with the penal aspects and the cognizance and proof, it
becomes manifest that though the statute in question in
general is one of civil kind and the relief available
thereunder is of civil nature, the jurisdiction of the
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Magistrate and the Court of Session, are under the Code
of Criminal Procedure, 1973. They are explicitly made so
to operate.
10.2 The Court of Judicial Magistrate or the Metropolitan
Magistrate on whom jurisdiction is vested under this Act
are the courts mentioned under Section 6 of the Criminal
Procedure Code. The Court of Session mentioned in
Section 29 of the Act is the Court of Session under
Section 6(1) read with Section 9 of Cr.P.C. A Magistrate
dealing with the matters under the Domestic Violence Act
and a Sessions Judge entertaining and deciding appeal
under Section 29 of the Act are clothed with all the
powers of the criminal courts under the Code they have
all attributes, power and functional sphere of criminal
courts under the Code. They are the classes of courts to
be treated as inferior criminal courts, amenable to the
revisional jurisdiction under Section 397(1) and Section
401, Cr.P.C.
10.3 In other words, court of Magistrate or Court of
Session under the Domestic Violence Act are courts
which exist and function under the Cr.P.C. They are
vested with full-fledge adjudicatory as well as procedural
powers under the Cr.P.C. Their functioning is not in a
limited role. Neither the Magistrate of the First Class, nor
the Court of Session under the Domestic Violence Act are
persona designata. The ratio of the Dargah Committee,
Ajmer (supra) applies with reverse logic.
10.4 The jurisdiction of the Magistrate or the jurisdiction
of court of sessions under the Act therefore, are referable
to and derived from the Code of Criminal Procedure. The
Act in its provisions specifically mentions to be so.
Against the orders of the Magistrate, appeal is provided
under Section 29 of the Act to the Court of Session.
Against the judgment and order in appeal under Section
29, no further appeal or revision is provided in the Act.
The provisions of Code of Criminal Procedure, for the
revisional powers under Section 397(1) and Section 401,
Cr.P.C. would then attract and apply. The remedy of
revision under the Cr.P.C. before the High Court has to be
held to be available.
11. The impugned judgment and order, for the discussion
and the reasons recorded above, is revisable by the High
Court in exercise of its power under Section 397(1) read
with Section 401 of the Code. The petitioner has the said
remedy available. The impugned judgment and order in
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Criminal Appeal is pursuant to an adjudicatory exercise
involving fact-finding inquiry and fact-based conclusions,
deriving jurisdiction under Section 29 of the Act as above.
It is not the case of erroneous or illegal assumption of
jurisdiction, nor any jurisdictional error or irregularity
could be demonstrated or existed in respect of the
impugned judgment and order delivered in the Criminal
Appeal, making out no case whatsoever for issuing the
writ of certiorari.
12. In view of above, the proper remedy against the
impugned judgment and order being of filing of Criminal
Revision Application under Section 397(1) read with
Section 401 of the Code of Criminal Procedure, 1973, writ
jurisdiction of this Court by filing petition under Article
226 of the Constitution to set aside the impugned
judgment and order could not have been invoked. The
petitioner has to approach the revisional court availing
the remedy of Revision Application.”
10. The aforesaid shows that the learned single Judge, after
considering the provisions of Sections 27, 28, 31 and 37
of the Act found that the machinery to secure
enforcement of the relief under the Act is under the
Code. It was also considered by the learned single Judge
that appeal is provided to the Court of Session as per
Section 29 of the Act. The learned single Judge did find
that in the case of Narendrakumar (supra) the court did
not efface the remedy of appeal or revision under the
hierarchy of criminal courts as per the provisions of the
Code which is made applicable to the proceedings under
the Act. The learned single Judge further found that
applicability of the provisions of the Code is by express
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provision and, therefore, appropriate remedy against the
impugned judgment and order is revision under Section
397(1) read with Section 401 of the Code and not under
Article 226 of the Constitution when there is already a
remedy available to approach before the revisional court.
11. Two important aspects need to be emphasized after
considering both the above-referred decisions of two
learned single Judges; one is that in the case of
Narendrakumar (supra), the learned single Judge was
examining the aspect of quashment of the proceedings
instituted under Sections 18, 19, 20 and 21 of the Act,
whereas in the case of Rameshbhai R. Desai (supra), the
learned single Judge was examining the matter against
the judgment and order passed by the Sessions Court
under the Act which arose from the order passed by the
learned Metropolitan Magistrate under the Act. It is
hardly required to be stated that challenging the
jurisdiction for initiation of the proceedings or quashing of
the proceedings under the Act at the outset is an aspect
which can be considered in contradistinction to the
aspect of quashing of a judgment of an appellate court
or even the order of the Magistrate passed after bi-parte
hearing.
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12. After having considered the above-referred
background, we may now consider the scheme of the
Protection of Women from Domestic Violence Act, 2005.
13. It is true that the Act provides for more effective
protection of the rights of women guaranteed under the
Constitution who are victims of violence of any kind
occurring within the family and for matters connected
therewith or incidental thereto. But at the same time, one
has to keep in mind the express language used by the
Parliament for giving literal meaning to the provisions of
the Statute. In case of any ambiguity or in a case where
the Court is unable to extract the literal meaning, the
objects and reasons may be of any help. It is by now
well-settled that the Court, while interpreting any
provision of the Statute will first try to gather literal
meaning and if literal meaning is not possible, or if an
ambiguity arises on account of other provisions of the
very Act, the Court may consider the objects and reasons
for giving purposeful interpretation to any Statute or
language of any section. But in cases where the language
used by the Statute is unambiguous, the Court would go
by the plain and simple meaning unless the constitutional
validity of that particular Statute is challenged. Even in
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the present case also, there is no challenge to the
constitutional validity of any of the provisions of the Act.
Therefore, while considering the scheme of the Act and
the consequential remedial measures available, we will
proceed on the basis of the sections and the language
used in the sections of the Act as it exists.
14. Section 2 of the Act provides for various definitions.
Section 3 provides for definition of domestic violence.
Chapter III provides for powers and duties of the
Protection Officers, service providers etc. Chapter IV
provides for procedure for obtaining orders of reliefs. It is
true that under Section 12, the language used is
application to the Magistrate and not complaint to be
filed before the Magistrate. But at the same time,
application is to be made to the Magistrate and not to the
Civil Judge. The term “Magistrate” is defined under
Section 2(i) of the Act. The aforesaid shows that there is
express reference to the jurisdiction of the Magistrate
under the Code of Criminal Procedure in the area where
the aggrieved person resides temporarily or otherwise or
the respondent resides or the domestic violence is
alleged to have taken place. Therefore, the Act says that
initiation of jurisdiction before the Magistrate is by virtue
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of the provisions of the Code. Section 19(3) of the Act
provides for power with the Magistrate to require the
respondent to execute a bond, with or without sureties,
for preventing the commission of domestic violence. Subsection
(4) of Section 19 provides that such order shall
be deemed to be an order under Chapter VII of the Code
of Criminal Procedure, 1973 and shall be dealt with
accordingly. Sub-section (7) of Section 19 provides
enabling power with the Magistrate to direct an officer
in-charge of the police station in whose jurisdiction the
Magistrate has been approached to assist in the
implementation of the protection order. Sections 27, 28
and 29 of the Act read as under:-
“ 27. Jurisdiction-(1) The court of Judicial Magistrate of the
first class or the Metropolitan Magistrate, as the case
may be, within the local limits of which-
(a) the person aggrieved permanently or temporarily
resides or carries on business or is employed;
(b) the respondent resides or caries on business or is
employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a protection
order and other orders under this Act and to try
offences under this Act.
(2) Any order made under this Act shall be
enforceable throughout India.”
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28. Procedure-(1) Save as otherwise provided in this
Act, all proceedings under sections 12, 18, 19, 20, 21,
22 and 23 and offences under section 31 shall be
governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from
laying down its own procedure for disposal of an
application under section 12 or under sub-section (2) of
section 23.
29. Appeal.-- There shall lie an appeal to the Court of
Session within thirty days from the date on which the
order made by the Magistrate is served on the aggrieved
person or the respondent, as the case may be, whichever
is later.”
15. The aforesaid Section 27 shows the competence of
the court of Judicial Magistrate of the first class or the
court of Metropolitan Magistrate, as the case may be, for
the competence to grant a protection order. Section 28
expressly provides that all proceedings under Sections,
12, 18, 19, 20, 21, 22 and 23 as well as offences under
Section 31 shall be governed by the provisions of the
Code of Criminal Procedure.
16. Two pertinent aspects need to be referred; one is that the
legislature, for the purpose of proceedings under under
Sections 12, 18, 19, 20, 21, 22 and 23 has given same
treatment to the proceedings as if for trial of the
offences under Section 31 of the Act. Therefore,
distinction as considered by the learned single Judge of
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this Court in the case of Narendrakumar (supra) is done
away with by the express language of the Parliament. It
is true that by virtue of sub-section (2) of Section 28, the
court shall not be prevented from laying down its own
procedure, but there again, it is only limited to disposal of
an application under Section 12 or under Section 23(2).
Therefore, the paramount intention of the Parliament for
express language of interweaving provision of the Code
to the proceedings under the Act cannot be said as
diluted. Further, as per Section 29 of the Act, an appeal
is provided to the court of Sessions which again
strengthens the applicability of the Code to the
proceedings under the Act.
17. At the first brush, one may find that if the proceedings
are treated as if civil proceedings, the Code may apply
but such general proposition would be uncalled for in a
case where the Parliament, by express provision has
applied the provisions of the Code to the proceedings
under the Act. At this stage, we may also refer to the
provisions of Sections 31 and 32 of the Act which reads
as under:-
“31. Penalty for breach of protection order by
respondent.--(1) A breach of protection order, or of an
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interim protection order, by the respondent shall be an
offence under this Act and shall be punishable with
imprisonment of either description for a term which may
extend to one year, or with fine which may extend to
twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as
practicable be tried by the Magistrate who has passed
the order, the breach of which has been alleged to have
been caused by the accused.
(3) While framing charges under sub-section (1), the
Magistrate may also frame charges under section 498A of
the Indian Penal Code (45 of 1860) or any other provision
of that Code or the Dowry Prohibition Act, 1961 (28 of
1961), as the case may be, if the facts disclose the
commission of an offence under those provisions.
32. Cognizance and proof.--(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of
1974), the offence under sub-section (1) of section 31
shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person,
the court may conclude that an offence under sub-section
(1) of section 31 has been committed by the accused.”
The breach of a protection order is an offence and is
also made cognizable and non-bailable notwithstanding
anything contained in the Code. But the relevant aspect
is that proceedings for the trial of an offence under
Section 31 are treated at par by the Parliament with the
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23
of the Act as per the express language used under
Section 28 of the Act. In view of the aforesaid discussion,
the only inescapable conclusion could be that once the
proceedings under Section 12 or 18 or 19 or 20 or 21 or
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22 or 23 or 31 are or is initiated either jointly or
independently by the order passed by the Judicial
Magistrate or the Metropolitan Magistrate, as the case
may be, the provisions of the Code would be applicable.
18. Even if the aforesaid is the conclusion, two incidental
aspects may arise for further consideration; one is the
stage at which the provisions of the Code would start
operating, and another is the remedial measure available
to any aggrieved person on account of such proceedings
under the Act. If, for example, in a given case, the matter
is before the protection officer and the report is yet to be
submitted to the Magistrate or the report is prepared and
the application is yet to be made before the Magistrate or
that the application is made to the Magistrate, but the
Magistrate has yet to pass judicial order of any type
including for issuance of notice or protection order, in
contradistinction to the cases where application is
already made and the learned Magistrate has already
passed a judicial order including to issue summons or
notice to the respondents, in the cases of former, one
may resort to the proceedings under Article 226 of the
Constitution if such person is in a position to
satisfactorily demonstrate before the Court that the
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proceedings are beyond the scope and ambit of the Act,
and therefore, be quashed. But under such circumstances
also, the writ powers of this Court under Article 226 of
the Constitution would be against contemplated action or
an action to which the Code is to apply and therefore, it
will be Special Criminal Application and not Special Civil
Application because the High Court jurisdiction under
Article 226 of the Constitution on criminal side is to be
invoked. Whereas in the case of the latter, once the
applicability of the Code has started or begun on account
of the judicial order passed by the learned Magistrate
including that of issuance of notice or summons, the
remedial measures under the Code would be available to
an aggrieved person as per the provisions of the Code.
Even otherwise also, by way of self-imposed restriction in
exercise of power under Article 226 of the Constitution,
when there are express statutory remedies available, this
Court would normally not entertain a petition under
Article 226 of the Constitution and may relegate the
parties to resort to the remedies as provided under the
Statute, i.e., the Code.
19. In view of the discussion and the observations made by
us herein above, once the provision of the Code has been
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made applicable, it cannot be said that remedy under
Section 482 of the Code would be unavailable to the
aggrieved person. But the said aspect is again subject to
self-imposed restriction of power of the High Court that
when there is express remedy of appeal available under
Section 29 before the court of Session or revision under
Section 397, the Court may decline entertainment of the
petition under Section 482 of the Code. But such in any
case would not limit or affect the inherent power of the
High Court under Section 482 of the Code. Hence, the
view taken by the learned single Judge in the case of
Narendrakumar (supra), cannot be said to be correct,
since in the said case, proceeding under Sections 18, 19,
20 and 21 under the Act were already initiated and the
applicability of the Code as per the above-referred
observation and discussion had already started.
20. In the case of Rameshbhai R. Desai (supra), since the
proceedings under the Act had already started and
concluded, the applicability of the Code to such
proceedings was an undisputed position. Not only that,
but an appeal was preferred under Section 29 of the Act
before the learned Sessions Judge and failed, against
which a petition under Article 226 of the Constitution was
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preferred. Once express remedy was available to the
litigant under the Code and this Court has declined to
entertain the petition under Article 226 of the
Constitution, the view taken by the another learned
single Judge cannot be said to be incorrect.
21. At this stage, we may usefully refer to the decision of the
Apex Court in the case of Mohit @ Sonu and another
vs. State of U.P., reported at (2013) 7 SCC 789 and
more particularly, the observations made at paras 25 to
32 which read as under:-
“25. In the light of the ratio laid down by this Court
referred to hereinabove, we are of the considered
opinion that the order passed by the trial court
refusing to issue summons on the application filed
by the complainant under Section 319 of Cr.P.C.
cannot be held to be an interlocutory order within
the meaning of sub-section (2) of Section 397 of
Cr.P.C. Admittedly, in the instant case, before the
trial court the complainant's application under
Section 319 of Cr.P.C. was rejected for the second
time holding that there was no sufficient evidence
against the appellants to proceed against them by
issuing summons. The said order passed by the trial
court decides the rights and liabilities of the
appellants in respect of their involvement in the
case. As held by this Court in Amar Nath's case
(1977) 4 SCC 137), an order which substantially
affects the rights of the accused or decides certain
rights of the parties cannot be said to be an
interlocutory order so as to bar a revision to the
High Court against that order as contemplated
under Section 397(2) of Cr.P.C.
26. In the instant case as noticed above, when the
complainant's application under Section 319 of
Cr.P.C. was rejected for the second time, he moved
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the High Court challenging the said order under
Section 482 of Cr.P.C. on the ground that the
Sessions Court had not correctly appreciated the
facts of the case and the evidence brought on
record. The complainant wanted the High Court to
set aside the order after holding that the evidence
brought on record is sufficient for coming to the
conclusion that the appellants were also involved in
the commission of the offence.
27. In our considered opinion, the complainant
ought to have challenged the order before the High
Court in revision under Section 397 of Cr.P.C. and
not by invoking inherent jurisdiction of the High
Court under Section 482 of Cr.P.C. May be, in order
to circumvent the provisions contained in subsection
(2) of Section 397 or Section 401, the
complainant moved the High Court under Section
482 of Cr.P.C. In the event a criminal revision had
been filed against the order of the Sessions Judge
passed under Section 319 of Cr.P.C., the High Court
before passing the order would have given notice
and opportunity of hearing to the appellants.
28. So far as the inherent power of the High Court
as contained in Section 482 of Cr.P.C. is
concerned,the law in this regard is set at rest by
this Court in a catena of decisions. However, we
would like to reiterate that when an order, not
interlocutory in nature, can be assailed in the High
Court in revisional jurisdiction, then there should be
a bar in invoking the inherent jurisdiction of the
High Court. In other words, inherent power of the
Court can be exercised when there is no remedy
provided in the Code of Criminal Procedure for
redressal of the grievance. It is well settled that
inherent power of the court can ordinarily be
exercised when there is no express provision in the
Code under which order impugned can be
challenged.
29. Courts possess inherent power in other
statute also like the Code of Civil Procedure (CPC),
Section 151 whereof deals with such power. Section
151 of CPC reads:
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"151. Saving of inherent powers of
court.-- Nothing in this Code shall be deemed
to limit or otherwise affect the inherent
powers of the Court to make such orders as
may be necessary for the ends of justice or to
prevent abuse of the process of court."
30. This Court in the case of Padam Sen and Anr.
v. State of Uttar Pradesh, AIR 1961 SC 218
regarding inherent power of the Court under Section
151 CPC observed: (AIR p.219, para 8)
"8. ...The inherent powers of the Court are in
addition to the powers specifically conferred
on the Court by the Code. They are
complementary to those powers and
therefore, it must be held that the Court is free
to exercise them for the purposes mentioned
in Section 151 of the Code when the exercise
of those powers is not in any way in conflict
what has been expressly provided in the Code
or against the intentions of the Legislation. It
is also well recognised that the inherent power
is not to be exercised in a manner which will
be contrary to or different from the procedure
expressly provided in the Code."
31. In a Constitution Bench decision rendered in
the case of Manohar Lal Chopra v. Rai Bahadur Rao
Raja Seth Hiralal, AIR 1962 SC 527, this Court held
that : (AIR p. 537, para 43)
"43. … The inherent jurisdiction of the Court to
make orders ex debito justiciae is undoubtedly
affirmed by S.151 of the Code but inherent
jurisdiction cannot be exercised so as to nullify
the provision of the Code of Civil Procedure.
Where the Code of Civil Procedure deals
expressly with a particular matter, the
provision should normally be regarded as
exhaustive."
32. The intention of the Legislature enacting the
Code of Criminal Procedure and the Code of Civil
Procedure vis-?is the law laid down by this Court it
can safely be concluded that when there is a
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specific remedy provided by way of appeal or
revision the inherent power under Section 482,
Cr.P.C. or Section 151, C.P.C. cannot and should not
be resorted to.”
22. We may also refer to certain decisions of other
High Courts for which references were made by the
learned counsel appearing for both the sides.
23. In the case of State of Uttar Pradesh and others v.
Mukhtar Singh and others, reported at AIR 1957
All.505, the question did not arise for consideration
before the Apex Court about the proceedings to be faced
by the aggrieved person, whether civil or criminal. So far
as the application before the Magistrate is concerned,
even if it is considered that civil rights of a woman were
being pursued by her, the fact remains that the other
side, that is, the respondent is to face the proceedings to
which the Code applies and, therefore, such distinction to
such type of proceedings had not fallen for consideration
before the Allahabad High Court. Hence, we are of the
view that the above decision would not be applicable in
the present case.
24. In the decision of Delhi High Court in the case of Varsha
Kapoor v. UOI and others, in Writ Petition (Crl) No.
638 of 2010, the question of constitutional validity of
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Section 2(q) of the Act was under challenge and the
observations were made that remedy is provided by the
present Act to civil rights of women, but thereby it
cannot be said that applicability of the Code would be
lost to the proceedings already initiated under the Act.
Hence, the said decision cannot be made applicable to
the facts of the present case.
25. In the decision of Kerala High Court in the case of Dr.
V.K. Vijayalekshmi Amma v. Bindu V and others in
Crl. MC No. 2225 of 2009, it was found that after the
proceedings were initiated under Section 12 by the
learned Magistrate, there are adequate remedies before
the Magistrate and, therefore, it was observed that it is
not for the High Court to exercise extraordinary inherent
powers and to quash the proceedings.
26. In another decision of Kerala High Court in the case of
Harshkumar and Another v. State of Kerala and
Others, reported at 2011 (3) KHC 15, it was held that
the Magistrate exercising functions under the Act acts as
a Criminal Court inferior to the Court of Sessions and the
High Court. It was also held that the order passed by the
Court of Sessions in an appeal under Section 29 of the
Act is revisable by the High Court in exercise of the
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power under Section 397(1) and 401 of the Code, and
therefore, exercise of power under Section 482 of the
Code was declined.
27. In view of the aforesaid observations and
discussion, the following conclusions:
(i) The provisions of the Act provide for remedial
measures for civil rights of women but the machinery
provided is through criminal court.
(ii) Initiation of proceedings under Section 12 or 18 or
19 or 20 or 21 or 22 or 23 or 31 of the Act would begin
only when the Magistrate has passed any judicial order
including of issuance of notice for hearing.
(iii) Any person affected by any proceedings under the
Act, prior to initiation of proceedings under Section 12 of
the Act may prefer Special Criminal Application under
Article 226 of the Constitution if as per him, the
proceedings are beyond the scope and ambit of the Act
or without any authority in law. But this Court, while
entertaining the petition under Article 226 of the
Constitution may decline entertainment of the petition by

way of self-imposed restriction in exercise of the judicial
powers or may decline entertainment of the petition in
exercise of its sound judicial discretion.
(iv) Once proceedings are initiated under Section 12 or
18 or 19 or 20 or 21 or 22 or 23 or 31 either
independently or jointly on account of any judicial order
passed by the learned Magistrate including issuance of
notice, such proceedings shall be governed by the Code
of Criminal Procedure coupled with the power of the
Court under Section 28(2) to lay down its own procedure
for disposal of an application under Section 12 or under
sub-section (2) of Section 23 of the Act.
(v) Once the applicability of the Code of Criminal
Procedure has started on account of any judicial order
passed by the learned Magistrate including issuance of
notice either under Section 12 or 18 or 19 or 20 or 21 or
22 or 23 or 31 of the Act independently or jointly,
remedial measures to the aggrieved person as provided
under the Code of Criminal Procedure, 1973 can be said
as available. But the higher forum under the Code of
Criminal Procedure, may be the Court of Session or the

High Court, may decline entertainment of such
proceedings considering the facts and circumstances of
the case and as per the settled principles of law and in
accordance with law.
(vi) The aforesaid remedial measures provided under
the Code of Criminal Procedure would also include the
powers of this Court under Section 482 of the Code, but
the Court may, in a given case, decline entertainment of
the petition when there is express remedy provided
under the Code of Criminal Procedure or no case is made
out to prevent the abuse of process of any Court, or no
case is made out to secure the ends of justice.
28. In view of the aforesaid conclusions, we find that Special
Criminal Application No. 5313 of 2015 shall now be
placed before the learned single Judge for examining the
merits of the matter in accordance with law.
29. The Reference stands disposed of.
(JAYANT PATEL, ACJ.)
(N.V.ANJARIA, J.)

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