Nandkishor Pralhad Vyawahare vs Sau. Mangala W/O Pratap Bansar @ ...
2017 Latest Caselaw 8657 Bom

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                                                      1

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

                      CRIMINAL APPLICATION (APL) NO.578/2011

     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 S.V. Sirpurkar, Advocate for applicant.
                       Shri M.K. Pathan, APP for State.
                       Shri C.A. Joshi, Advocate for respondent.
     --------------------------------------------------------------------------------------------------

                                                CORAM  : B.P. DHARMADHIKARI AND
                                                                 ARUN D. UPADHYE, JJ.


     Date of reserving the judgment :                         11.09.2017
     Date of pronouncing the judgment :                       14.11.2017
                                                     

     JUDGMENT   (PER : ARUN D. UPADHYE, J.)

1. The present reference is arising out of order dated

13/2/2015 passed by the learned Single Judge in Criminal Application

No.578/2011.

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2. It appears that during the course of hearing, it was brought

to the notice of learned Judge that there are conflicting decisions of two

separate Benches, on the point of applicability of the provisions of

Section 482 of the Code of Criminal Procedure to the proceedings under

the Protection of Women from Domestic Violence Act, 2005 (for short

hereinafter referred to as "the D.V. Act, 2005"), rendered in the case of

Mangesh Sawant...Versus...Minal Vijay Bhosale, reported at 2012 ALL

MR (Cri.) 1113 (Coram : A.S. Oka, J.) and another in Criminal Writ

Petition No. No.773/2014 (Narayan Thool and others...Versus...Sau.

Mala Chandan Wani,) (Coram : S.B. Shukre, J.).

3. After hearing the parties, the learned Single Judge has made

a reference to the Hon'ble Chief Justice for referring the matter to be

decided by larger Bench in order to set right the controversy. Following

questions were framed by the learned Single Judge :-

"(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 ?"

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4. The matter was then placed before the Hon'ble Acting Chief

Justice by the Registry and the Hon'ble Acting Chief Justice was pleased

to direct to constitute the Division Bench presided over by the Hon'ble

Shri Justice B.P. Dharmadhikari to hear and decide the reference made by

the Court (Coram : A.R. Joshi) in Criminal Application No.578/2011. The

above criminal application is thus before us.

5. On 7/8/2017 when the matter came up for hearing,

Shri S.V. Sirpurkar, the learned Counsel for the applicant informs that the

applicant Nandkishor is no more and sought time to file appropriate

pursis on record. The matter was adjourned for further consideration on

17/8/2017. Thereafter, the matter came up before us for hearing on

18/8/2017. The learned Counsel for the applicant was not present. The

learned Counsel Shri M.S. Sambhare for respondent was present and

informed that applicant Nandkishor is no more. Learned Acting Public

Prosecutor Shri A.S. Fulzele has sought time to assist the Court.

Thereafter, the order was passed and Registry of this Court directed to

publish a notice in the cause list pointing out the issue referred and

requesting the Advocates willing to assist the Court to address the Court

on the next date of hearing and the matter was postponed on 11/9/2017

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as a last chance.

6. We have heard respective counsel for the parties at length.

The learned Additional Public Prosecutor Shri Pathan has submitted that

if the complaint is filed by the woman before the Magistrate under the

provisions of the D.V. Act, 2005 the mechanism is provided under the

Code of Criminal Procedure. The appellate remedy is also provided before

the Sessions Court. If the order is passed by the Magistrate under the D.V.

Act, 2005 and the same is disobeyed then the consequences are criminal

though the proceedings are in the civil nature but Section 482 of the Code

of Criminal Procedure could be invoked for quashing the proceedings on

meritorious cases. He further submitted that if alternative remedy is not

availed then the Court may refuse to entertain the application under

Section 482 of the Code of Criminal Procedure.

7. Shri A. J. Thakkar, Shri A. S. Kinkhede, Shri R. R. Vyas, Shri

Maheshwari and Shri R. D. Dhande, learned advocates assisted the Court

with response to the notice published on the Notice Board. All these

learned advocates have submitted that the provisions of Domestic

Violence Act though the provisions are of civil nature but consequences

are criminal one. They further submitted that the mechanism in the Act is

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provided under the Code of Criminal Procedure. The remedy of appeal is

also provided and appeal lies to the Sessions Court. They, therefore,

submitted that the proceedings under the Protection of Women from

Domestic Violence Act, 2005 are in the nature of civil as well as criminal

and the High Court can exercise its powers under Section 482 Code of

Criminal Procedure, 1973.

8. Shri C. A. Joshi, learned counsel for respondent has

submitted that the application under Section 482 of Cr.P.C. is not

maintainable. The proceedings before the Magistrate under the D.V. Act,

2005 and order was passed therein would be challenged before the

Sessions Court. He further submitted that the proceeding before the

Magistrate is of civil nature and therefore, High Court cannot exercise its

powers under Section 482 of Cr.P.C.

9. Shri Pathan, learned A.P.P. has relied upon the following

rulings in support of his submission.

(a) (2011) 12 SCC 588 (Inderjit Singh Grewal...Versus...State of Punjab and another).

(b) (2016) 11 SCC 774 (Kunapareddy Alias Nookala Shanka Balaji...Versus...Kunapareddy Swarna Kumari and another).

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                      (c)      2009   (1)   ALL   LJ   347   (Manish
             Tandon...Versus...Richa Tandon).
                    (d)          I   (2016)   DMC   587   (DB)   (Guj.)   [Suo

Motu...Versus...Ushaben Kishorbhai Mistry].

10. Learned counsel have relied upon the decision rendered

by the Division Bench in Writ Petition No.2473/2016 (Sukumar

Pawanlal Gandhi Vrs. Bhakti Sushil Gandhi) decided on 27/10/2016.

11. Judgment in the case of Inderjit Singh

Grewal...Versus...State of Punjab and another (supra) the Hon'ble Apex

Court has held that the complaint was filed by wife under Section 12 of

the D.V. Act, 2005 to initiate criminal proceedings against her husband

alleging that he had obtained decree of divorce by playing fraud upon the

Court. However, it is evident that wife herself had been party to fraud

committed by appellant upon civil Court for getting decree of divorce.

Statements/allegations made by wife patently and latently involve her in

alleged fraud committed upon Court which consequently made herself

dis-entitled for any equitable relief and hence, permitting the Magistrate

to proceed further with complaint under the provisions of the D.V. Act,

2005 is not compatible and in consonance with decree of divorce which

still subsists and thus, process amounts to abuse of process of Court.

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Undoubtedly, for quashing a complaint, Court has to take its contents on

its face value and in case same discloses an offence, the Court generally

does not interfere with same. However, in the backdrop of factual matrix

of this case, permitting Court to proceed with complaint would be

travesty of justice.

12. Judgment in the case of (Kunapareddy Alias Nookala

Shanka Balaji...Versus...Kunapareddy Swarna Kumari and another),

reported at (2016) 11 SCC 774, the Hon'ble Apex Court while dealing

with the case under Protection of Women from Domestic Violence Act,

2005 has held that the amendment to the original petition / complaint

filed under the D.V.Act,2005, the Court has power to allow the

amendment. The Hon'ble Apex Court held that whether they are of civil

or criminal nature, original petition / complaint may be permitted by the

Court to be amended in appropriate cases. Though in the said proceeding,

the appellant questioned the validity of High Court's order contending

that proceeding under the D.V.Act, 2005 were governed by the provisions

of Cr.P.C. as prescribed under the D.V. Act, 2005 and there was no

amendment in Cr.P.C.

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13. Judgment delivered in the case of Manish Tandon Vrs.

Richa Tandon reported in 2009 (1) ALL LJ 347, the High Court of

Allahabad has held that the availability of an alternate and efficacious

remedy of appeal under Section 29, the petition is not maintainable under

Section 482 of Cr.P.C.

In Another Judgment delivered in the case of Suo Motu

Vrs. Ushaben Kishorbhai Mistry, reported in 2016 ALL MR (Cri)(Jou)

293, the Division Bench of the Gujarat High Court has held that :-

i) The provisions of the D.V. 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

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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

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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.

14. Shri Vyas, learned counsel, who assisted the Court has

relied upon the Judgment of Bombay High Court in Writ Petition

No.2473/2016 decided on 27/10/2016 in the case of (Sukumar

Pawanlal Gandhi Vrs. Bhakti Sushil Gandhi), reported in 2016 SCC

OnLine Bom 12942.

In the above Judgment, the Hon'ble Division Bench of this

Court has held that in view of sub-section (2) of Section 28 of the D.V.

Act, 2005, the Court before which an application under Sub-Section (1) of

Section 12 is filed can adopt its own procedure for deciding the

application. It is further held that the application under Sub-Section (1) of

Section 12 of the D.V.Act, 2005 is not proceeding under the Cr.P.C.

though it can be filed before the Court exercising the powers of a Criminal

Court. However, there are two penal provisions under the D.V.Act, 2005.

The first is Section 31 which provides that a breach of Protection Order or

of an interim protection order, under the D.V.Act, 2005 by the respondent

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shall be an offence which shall be punishable with imprisonment. The

said offence is made cognizable and non-bailable under sub-section (1) of

Section 32. It is further observed that under Section 33, a Protection

Officer who fails or refuses to discharge his duties, as directed by the

Magistrate in the Protection Order without any sufficient cause, is liable

to be punished with imprisonment. The procedure for taking cognizance

of the said offence committed by the Protection Officer is laid down in

Section 34. Lastly, it is observed that it is needless to add that power

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

prosecution under Section 31 or 33 of the D.V.Act, 2005.

15. Judgment delivered in the case of Maroti Domaji

Ramteke and others Vrs. The State of Maharashtra and another,

reported in 2016 ALL MR (Cri) 4232, the Division Bench of this Court

has held that for quashing of proceeding / complaint lodged by the wife

under the D.V.Act, 2005 as also under Section 498-A of the I.P.C., lady

with whom, husband is allegedly having extra-marital relations, also

impleaded as a respondent. Not only such lady but family members of

such lady also impleaded. The said lady and her family members do not

fall within category of "relatives of husband". The aforesaid complaint

against them is not sustainable and liable to be set aside.

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16. Judgment delivered in the case of Mrs.Dimple Jatin

Khanna @ Dimple Rajesh Khanna @ Mrs. Dimple Khanna and

another Vrs. Anita Advani and another, reported in 2016 ALL MR (Cri)

3748, the learned Single Judge of this Court has held that the complaint

under Section 12 on the basis of relationship in the nature of marriage,

complaint filed against legally wedded wife and children of deceased i.e.

the petitioners on the ground that the petitioners dishoused her only at

the time of death of deceased would prima facie demonstrate that

respondent had relationship with deceased in the nature of marriage. The

complaint under Section 12 is not maintainable.

17. Judgment in the case of Ashish Dixit and others Vrs.

State of Uttar Pradesh and another, reported in 2013 ALL SCR 832, the

Hon'ble Apex Court has held that the wife initiated proceedings under

Domestic Violence Act, apart from the husband and parents-in-law,

several persons and even tenant arrayed as parties to the proceedings,

proceedings against the persons other than husband and parents-in-law

quashed. The Hon'ble Apex Court has observed in para 4 of the said

Judgment that in the matter of this nature, we are of the opinion that the

High Court at least should have directed that the petition filed by the

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respondent no.2 be confined to her husband and as also her parents-in-

law and should not have allowed the impleadment of respondent Nos.4 to

12. The Hon'ble Apex Court has considered the provisions of Section 482

of the Cr.P.C. as well as Section 12 of the D.V.Act, 2005 in the above said

judgment.

18. In this case in hand, the learned Single Judge of this

Court has made reference while considering two conflicting Judgments.

One in the case of Mangesh Sawant Vrs. Minal Vijay Bhosale and

another, reported in 2012 ALL MR (Cri) 1113 , decided on 05/10/2011

(Coram : A.S.Oka, J.) and in Cri. Writ Petition No.773/2014 decided on

27/01/2015 by the learned Single Judge (Coram : S.B.Shukre, J.). In the

Judgment delivered by (Coram : A.S.Oka, J.), it is held that there are only

two penal provisions under the Act. The first one is under Section 31

which provides that for committing a breach of Protection Order or

interim protection order, a person can be punished. The only other penal

provisions is Section 33. Under the said provisions, the Protection Officer

can be punished who refuses to discharge his duties as directed by the

learned Magistrate by the Protection Order. It is further held that the

relief provided in Sections 18, 19, 20, 21 and 22 can be also sought by the

aggrieved person in any legal proceedings before a Civil Court, a Family

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Court or a Criminal Court.

It is further held that thus, the said act cannot be said to a

penal statute. Merely because the jurisdiction to entertain application

under Section 12 has been conferred upon the learned Magistrate, the

said Act can be termed as a penal statute and the proceedings under the

said Act cannot be treated as criminal proceedings. The power under the

Act can be exercised even by a Civil Court or a Family Court.

It is also held that there is no question of the learned

Magistrate taking cognizance of a complaint under Section 12 of the said

Act. There is no provision for issuing a summons contemplated by Code

of Criminal Procedure, 1973 on the application under Section 12.

Therefore, the power under Section 482 of the said Code cannot be

invoked for quashing the proceedings of application under Section 12 of

the said Act inasmuch as the proceeding of the said application cannot be

said to be a criminal proceeding. In any case, it is well settled law that the

power under Section 482 can be exercised sparingly and in only

exceptional cases.

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19. Criminal Writ Petition No.773/2014 is decided on

27/01/2015 by (Coram : S.B.Shukre, J.). In the said judgment, the

petition filed under Section 482 for quashing and setting aside the

complaint filed under the provisions of D.V.Act, 2005 was allowed. The

learned Single Judge has held that a woman who is married, cannot enter

into domestic relationship as contemplated under Section 2(f) of the

D.V.Act, 2005 and even if she establishes a long standing relationship

with man as concubine or mistress, she would not be entitled for

protection under the provisions of the D.V.Act, 2005.

The petition was allowed and the impugned order dated

24/07/2014 passed by the learned Magistrate was quashed and the

complaint filed being Domestic Violence Case No.1 of 2014 is quashed

and set aside.

20. Considering the above referred decision of Hon'ble Apex

Court as well as the Division Bench of this Court and judgments of the

Division Bench of other High Courts, it appears that the different views

are taken.

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The Division Bench in Sukumar Pawanlal Gandhi Vs.

Bhakti Sushil Gandhi (supra), has answered the question framed by it in

opening para of the judgment in paragraph 29 thereof and declared that

the High Court cannot exercise power under Section 482 of Criminal

Procedure Code for quashing an application under Section 12(1) of the

Domestic Violence Act. It appreciates the judgment of Hon'ble Apex Court

in Kunapareddy (supra), from para 7 onwards and relies upon it to note

the nature of proceedings as civil one. In para 22, while looking into other

judgment of Hon'ble Apex Court in case of Ashish Dixit (supra), it

mentions that there the permissibility to take recourse to Section 482 was

not the question involved. Reason given by this Division Bench is

predominantly civil character of the proceedings. This Division Bench

holds that such application under Section 12(1) is not a proceeding under

Cr.P.C. though it can be filed before the JMFC Court i.e. court exercising

criminal powers. It holds in para 25, that the Magistrate does not act as a

criminal court in such a proceeding. To demonstrate that merely because

Criminal Court is prescribed as forum for the proceedings, it cannot be

quashed under Section 482 Cr.P.C., analogy of Section 169 of the

Maharashtra Municipal Councils, Nagar Panchayats and Industrial

Townships Act, 1965 has been used. In para 28, it finds that such an

application can be filed even before Civil Court or Family Court in which

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the matrimonial or maintenance dispute is pending and hence, in Section

28(2) of the Domestic Violence Act, need to evolve appropriate procedure

is given.

21. Considering the ratio laid down in Sukumar Pawanlal

Gandhi Vs. Bhakti Sushil Gandhi (supra), we are of the view that the

judgment of equi-bench on the same principle with similar facts, if is a

precedent applicable in law, goes unnoticed in a subsequent judgment,

the subsequent judgment may not be termed as a good law in face of the

doctrine of stare decisis. While interpreting the judgment, the Court has

to pin-point its attention to the ratio of the judgment. Keeping in view the

principle of stare decisis, a view which has been holding the fort need not

be disturbed only because another view would be possible. The judgments

which have held the field for a fairly long time ought not to be disturbed

unless there is a prepondering necessity dictated by the demands of the

justice to overturn them. The doctrine of stare decisis is based upon rule

of convenience, expectancy and public policy.

22. The another judgment delivered by Gujarat High Court in

the case of Suo Motu Vrs. Ushaben Kishorbhai Mistry, reported in

( 2016) ALL MR (Cri)(Jou) 293 in which different view is taken and it is

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held that the provisions of Section 482 of the Code of Criminal Procedure

is made applicable for quashing the proceeding filed under the D.V. Act,

2005. The view taken by the Division Bench of the Gujarat High Court is

not consistent with the view taken by this Court in Sukumar Pawanlal

Gandhi Vs. Bhakti Sushil Gandhi (supra).

23. The Hon'ble Supreme Court has not specifically laid down

the law under Section 482 of the Cr. P. C. while dealing with case of

Kunapareddy Alias Nookala Shanka Balaji...Versus...Kunapareddy

Swarna Kumari and another, reported in (2016) 11 SCC 774, the

Hon'ble Apex Court, however held that whether the proceedings of civil or

criminal nature, original petitioner / complainant may be permitted by

the Court to amend the appropriate cases.

24. In the case of Inderjit Singh Grewal...Versus...State of

Punjab and another (supra), the Hon'ble Apex Court though quashed the

proceeding filed under Section 12 of the D.V. Act, 2005, but not

specifically laid down the law that Section 482 of the Cr. P. C. is made

applicable for the proceedings under the D.V.Act, 2005.

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25. Section 26 of the Protection of Women from Domestic

Violence Act, 2005 permits relief under Sections 18, 19, 20, 21 and 22 to

be prayed for in legal proceedings before a Civil Court, Family Court or

Criminal Court. When this section is read in contra distinction with

Section 28, Section 28 speaks of "proceedings" under Sections 12, 18, 19,

20, 21, 22 and 23. Section 28[1] also takes into its hold offences under

Section 31, with which we are not concerned here. Thus, Criminal

Procedure Code is made applicable to proceedings under Section 12.

Section 26[1] does not speak of "proceedings", but, it contemplates grant

of relief in some other legal proceedings. Section 26[1] does not refer to

Section 12 or Section 23 at all. Sub-section [2] of Section 28 clarifies that

Court may lay down its own procedure for disposal of all applications

under Section 12 or Section 23[2].

26. Thus, when a relief possible under Domestic Violence Act

is sought in other legal proceedings before Civil Court or Family Court,

the Court may be required to evolve its own procedure, as recourse to

Criminal Procedure Code in that event may result in some confusion.

Section 28[1] operates without prejudice to otherwise prescription in

2005 Act. Though we wanted respective learned counsel to assist us in

understanding the implications arising out of this situation, we did not get

adequate assistance. Cardinal question is, - If except in Section 28[2],

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there is no prescription otherwise in 2005 Act, why clear mandate of

Section 28[1] cannot be given effect to, if "proceedings" are under

Section 12, 18, 19 to 23 ? Whether nature of proceedings either as Civil

or quasi Criminal or quasi Civil may be determinative to find out

applicability of Criminal Procedure Code ? Whether unambiguous

language of Section 28[1] gets clouded because of nature of

proceedings ?

27. Division Bench judgment of this Court in Sukumar

Pawanlal Gandhi .vrs. Bhakti Sushil Gandhi (supra), does not answer all

these aspects, and hence, we find it difficult to accept it as clinching the

controversy.

28. Considering the above facts and circumstances of the case

and the legal position referred above, we are of the considered view that

the present reference needs to be referred to the Larger Bench for

deciding the following questions framed by the learned Single Judge.

"(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 ?"

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The Registry to place the matter before the Hon'ble Chief Justice for referring the matter to the Larger Bench.

                               JUDGE                                          JUDGE


     Wadkar/Choulwar