Bombay High Court
Ashwini Kumar S/O Omprakash Vyas vs Priya Ashwinikumar Vyas And ... on 6 June, 2023
Bench: G. A. Sanap
1 APL179.20+4 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NO. 179 OF 2020
with
CRIMINAL APPLICATION [APL] NO. 24 OF 2020
with
CRIMINAL APPLICATION [APL] NO. 990 OF 2019
with
CRIMINAL WRIT PETITION NO. 584 OF 2022
with
CRIMINAL WRIT PETITION NO. 585 OF 2022
.............
CRIMINAL APPLICATION [APL] NO. 179 OF 2020
APPLICANTS : 1] Jalendra S/o Sakharam Khare
Aged about 62 years, Occu. Agriculturist,
(Dead. Deleted as per Courts' order dated
06.06.2020)
2] Daya W/o Jalendra Khare,
Aged about 55 years, Occu. Household,
R/o AL-05 Building 24/Room No.10,
Ashok Apartment, Sector 16,
Opp. CIDCO Office, Airoli, Navi Mumbai,
Near Datta Mandir, Mumbai (Maharashtra)
3] Raksha Shamsundar Khandare,
Aged about 34 years, Occu. Household,
R/o Near Ashoka Apartment,
Garden View Apartment,
Ground Floor, Room No.3, Airoli,
Navi Mumbai, Near Datta Mandir,
Mumbai, Maharashtra.
4] Roshani Nilesh Shinde,
Aged about 31 years, Occu. Household,
Airoli, Navi Mumbai.
5] Kauns Sakharam Khare,
Aged about 50 years, Occu. Labour.
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6] Sau. Indu Kauns Khare,
Aged about 45 years, Occu. Household,
R/o Hatedi, Tq. & Dis. Buldhana.
VERSUS
NON-APPLICANTS : 1] State of Maharashtra,
through P.S.O., P.S., Buldhana,
Dist. Buldhana.
2] Shital Siddharth Khare,
Aged about 31 years, Occu. Private,
R/o Rahate Colony, Near Rahate
Colony Floor Mill, At Post Mehkar,
Tq. and Dist. Buldhana.
With
CRIMINAL APPLICATION [APL] NO. 24 OF 2020
APPLICANTS : 1] Saeed Ahemad S/o Raziyoddin Sheikh,
Aged 34 years, Occu. Business,
2] Raziyoddin Sheikh S/o Mohiuddin Sheikh,
Aged about 65 years, Occu. Nil
3] Salma Begum W/o Raziyoddin Sheikh,
Aged about 60 years, Occu. Nil
4] Yasmin D/o Raziyoddin Sheikh,
Aged about 25 years, Occu. Household.
All R/o Mission Compound, Near Mughalai
Church, Dhule (P.S., Dhule)
VERSUS
NON-APPLICANT : Smt. Tuba Saeed Ahamad Sheikh,
Aged about 32 years, Occu. Professor,
C/o Shahenaz Akhtar, Behind the
Five bunglow, Sagar Nagar,
Chaprashipura camp, Amravati.
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With
CRIMINAL APPLICATION [APL] NO. 990 OF 2019
APPLICANTS : 1] Rajabhau S/o Damodhar Joge,
Aged 63 years, Occu. Cultivation,
2] Sau. Mangala W/o Rajabhau Joge,
Aged 58 years, Occu. Homemaker,
3] Rahul S/o Rajabhau Joge,
Aged about 31 years, Occu. Service,
All residing at Gandhu ward,
Chandrapur Road, Gadchiroli
Dist. Gadchiroli.
4] Sau. Snehal W/o Sumit Patagene,
nee Snehal Rajabhau Joge,
Aged 32 years, Occu. Household,
R/o Shiv Elite, Wardha Road, Nagpur.
VERSUS
NON-APPLICANTS : 1] State of Maharashtra,
through its protecting officer
attached to Police Station, Morshi.
2] Sau. Shital W/o Swapnil Joge,
Aged 28 years, Occu. Modelling
R/o C/o Dilip Umale, Rukhmini Nagar,
Morshi, Tah. Morshi, Dist. Amravati.
With
CRIMINAL WRIT PETITION NO. 584 OF 2022
PETITIONER : Ashwini Kumar S/o Omprakash Vyas,
Age 42 years, Occu. Service,
Residing at 302-B Block,
Vandana Earls Court Apartment,
Kudlu Gate, Bangalore South,
Bommanahalli - 560 068.
VERSUS
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RESPONDENTS : 1] Priya Ashwinikumar Vyas,
Aged about 36 years, Occu. -
2] Aahana alias Tani Ashwinikumar Vyas,
through natural guardian and representative
i.e. respondent no.1 Priya Vyas.
Both the respondents are resident of
Dhamangaon Rly., Marwadi Boarding,
Tq. Dhamangaon Rly., Dist. Amravati.
With
CRIMINAL WRIT PETITION NO. 585 OF 2022
PETITIONERS : 1] Ashwini Kumar S/o Omprakash Vyas,
Age 42 years, Occu. Service,
2] Omprakash Gangadasji Vyas,
Age 64 years, Occu. Retired,
3] Kiran Devi Omprakash Vyas,
Age 62 years, Occu. ...
All are presently residing at 302-B Block,
Vandana Earls Court Apartment,
Kudlu Gate, Bangalore South,
Bommanahalli - 550 068.
VERSUS
RESPONDENTS : 1] Priya Ashwinikumar Vyas,
Aged about 36 years, Occu. Household,
2] Aahana alias Tani Ashwinikumar Vyas,
Aged about 8 years, Occ. Education
through natural guardian and representative
i.e. respondent no.1 Priya Vyas.
Both the respondents are resident of
Dhamangaon Rly., Marwadi Boarding,
Tq. Dhamangaon Rly., Dist. Amravati.
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APPEARANCE :-
APL No. 179/2020 : Mr. S. V. Sirpurkar, Advocate for the applicant.
Mr. S. A. Ashirgade, A.P.P. for non-applicant no.1
Mrs. D.I. Charlewar with Mr. I.S. Charlewar, Advocates for
non-applicant no.2
APL No. 24/2020 : None for the applicant.
Mr. Parvez W. Mirza, Advocate for the non-applicant
APL No. 990/2019 : Mrs. Padma M. Chandekar, Advocate for the applicants.
Mr. S. A. Ashirgade, A.P.P. for non-applicant no.1
Mr. Bhushan Dafle, Advocate for non-applicant no.2
Cri.W.P.Nos.584/22 : Ms. Ayushi Dangre, Advocate for the petitioners
& 585/2022 None for the respondents.
---------------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
Date of Reserving Judgment : February 17 & 27, 2023.
Date of Pronouncement of Judgment : June 06, 2023.
JUDGMENT
1. In all the above applications, filed under Section 482 of
the Code of Criminal Procedure (for short "Cr.P.C."), with a prayer to
quash and set aside the proceedings initiated by the non-applicant,
claiming reliefs under the provisions of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as "the D.V. Act"
for short), the non-applicants have questioned the maintainability of the
applications under Section 482 of the Cr.P.C.
6 APL179.20+4 (J).odt
2. Learned advocates appearing for the non-applicants in all
the above matters, in order to canvas the issue of maintainability of the
application under Section 482 of Cr.P.C., have placed heavy reliance on
the decision of the Hon'ble Apex Court in the case of Kamatchi .vs.
Laxmi Narayanan, reported at AIR 2022 SC 2932. In view of
challenge to the maintainability of the application under Section 482 of
Cr.P.C., relying upon the decision in Kamatchi's case (supra), I have
heard learned advocates for the parties on this issue.
3. Elaborate narration of the facts of each case may not be
necessary because this Court is considering the issue of maintainability
of the applications under Section 482 of Cr.P.C. filed by the applicants
before this Court. However, at the threshold it would be necessary to
state that the non-applicant in each proceeding has initiated the
proceeding under Section 12 of the D.V. Act seeking various reliefs
provided under Sections 18 to 23 of the D.V. Act. In all the
applications, the Courts concerned have issued the notices. On service
of the notices, the applicants, without adopting any further proceeding
before the Courts below, approached this Court by invoking Section
482 of the Cr.P.C. and prayed for quashing the said proceeding.
7 APL179.20+4 (J).odt
4. I have heard learned advocates for the applicants and
learned advocates for the non-applicants. Perused the record and
proceedings.
5. Learned advocates Mr. I.S. Charlewar and Shri P.W. Mirza
appearing on behalf of the non-applicants advanced the submissions in
their respective matters. Learned advocates appearing for the non-
applicants in remaining matters have adopted the submissions advanced
by Mr. Charlewar and Mr. Mirza.
6. The gist of the submissions advanced by learned advocates
Mr. Charlewar and Mr. Mirza is as follows :
Hon'ble Apex Court in Kamatchi .vs. Laxmi Narayanan's
case (supra) has considered the decision of learned Single Judge of
Madras High Court in the case of Dr. P. Pathamanathan and others .vs. .
Tmt. V. Monika and others, reported at 2021 SCC Online (Madras)
8731 and has approved the said decision. Hon'ble Apex Court in
Kamatchi's case (supra), has dealt with the arguments advanced by the
learned advocate for the respondents in the said case by relying upon
the decision in the case of Adalat Prasad .vs. Ruplal Jindal, reported at
8 APL179.20+4 (J).odt
(2004) 7 SCC 338 and held that the matter where the order of issuance
of process is issued in a complaint on taking cognizance, stands on a
different footing and cannot be compared with the proceeding under
Section 12 of the D.V. Act, because the scope of notice under Section 12
of the D.V. Act is to call for a response from the respondent in terms of
the Statute so that after considering rival submissions, appropriate order
can be issued. Hon'ble Apex Court in this case, rejected the
submissions made by learned Senior Advocate appearing for the
respondent to meet the arguments advanced by learned advocate for the
appellant, challenging maintainability of application under Section 482
of Cr.P.C. by relying upon the decision in the case of Dr. P.
Pathamnathan (supra). Hon'ble Apex Court, by relying upon the
decision in the case of Adalat Prasad (supra), has held that considering
the nature of the proceedings under the D.V. Act, the same cannot be
challenged under Section 482 of the Cr.P.C. .
7. It was pointed out that decision of Hon'ble Apex Court in
Kamatchi's case (supra) has been considered by the Full Bench of
Madras High Court in the case of Arul Daniel and others .vs. Suganya ,
reported at 2022 SCC Online Mad. 5435. The Full Bench, in view of
9 APL179.20+4 (J).odt
the observations of Hon'ble Apex Court in Kamatchi's case (supra) and
for the other reasons recorded in the judgment, has held that the
application under Section 482 of Cr.P.C. is not maintainable. Main
emphasis was laid on the procedure prescribed in the D.V. Act and the
Rules framed thereunder. It was pointed out that in view of the
provisions of sub-section (1) of Section 28, the Magistrate or
Metropolitan Magistrate could be said to be "Court designata" and not a
"Criminal Court" and therefore, the recourse to Section 482 of the
Cr.P.C. straightway cannot be taken for quashing the said proceeding.
Reliance is also placed on the decision of Full Bench of this Court in
V.B. D'monte .vs. Bandra Borough Municipality [AIR 1950 Bom 397].
8. Learned advocates for the non-applicants further
submitted that in view of the decision of Hon'ble Apex Court in
Kamatchi's case (supra), the Full Bench decision of the Bombay High
Court in Nandkishor Pralhad Vyawahare .vs. Mangala, reported at
(2018) 3 Mh.L.J. 913 may not be applicable. Learned advocates
submitted that now the issue of maintainability has to be decided
keeping in mind the law laid down in Kamatchi's case (supra). Learned
advocates further pointed out that the Full Bench of Madras High
10 APL179.20+4 (J).odt
Court in Arul Daniel's case (supra) has considered the decision in
Kamatchi's case and observed that Hon'ble Apex Court in no uncertain
terms has held that the proceeding under Section 482 of Cr.P.C. cannot
be maintained straightway for quashing the proceeding initiated under
the D.V. Act.
9. On the other hand, learned advocates Ms. Ayushi Dangre
and Mr. S.V. Sirpurkar, appearing for the applicants in respective
applications advanced main arguments to oppose the prayer made by
the non-applicants. Learned advocates appearing for the applicants in
remaining applications have adopted their submissions.
10. The gist of the submissions of learned advocates Ms.
Ayushi Dangre and Mr. S.V. Sirpurkar for the applicants is as follows :
The decision of the Full Bench of Bombay High Court in
Nandkishor Pralhad Vyawahare's case (supra) was not considered by the
Hon'ble Apex Court in Kamatchi's case (supra). In Kamatchi's case,
the issue involved was with regard to the limitation for filing the
proceeding under Section 12 of the D.V. Act. In Kamatchi's case
(supra), the issue of maintainability of the application under Section
11 APL179.20+4 (J).odt
482 of Cr.P.C. for quashing the proceeding filed under Section 12 of the
D.V. Act, was not involved. The observations made by the Hon'ble
Apex Court in paragraph 31 of the decision in Kamatchi's case cannot
be relied upon to substantiate the argument that Hon'ble Apex Court
has held that the proceeding under Section 482 of the Cr.P.C., seeking
relief of quashing of the D.V. Act proceeding, is not maintainable. The
decision of the Full Bench of Madras High Court in Arul Daniel's case
(supra) cannot be relied upon by the non-applicants because it is in
conflict with the decision of the Full Bench of this Court in Nandkishor
Vyawahare's case (supra). The decision of the Full Bench of Bombay
High Court is binding on this Court and therefore, the argument
advanced on behalf of the non-applicants on the point of
maintainability cannot be entertained. Reliance is placed on the
provisions of Section 28 of the D.V. Act to substantiate the submission
that the provisions of Code of Criminal Procedure are made applicable
to the proceedings under the D.V. Act and therefore, application under
Section 482 of Cr.P.C. cannot be excluded.
11. In view of the rival submissions on the point of
maintainability of the proceedings under Section 482 of the Cr.P.C., I
12 APL179.20+4 (J).odt
have gone through the record and proceedings and more particularly
the judgments relied upon by the learned advocates for the parties.
12. In these cases, on behalf of the non-applicants, heavy
reliance has been placed on the decision of Hon'ble Apex Court in
Kamatchi's case (supra) in support of the contention that application
under Section 482 of Cr.P.C. is not maintainable for quashing the
proceeding filed under Section 12 of the D.V. Act. Learned advocates
for the other side submitted that the decision of Hon'ble Apex Court
was mainly concerned with the point of limitation for the purpose of
filing application and not on the point of maintainability of the
proceedings under Section 482 of Cr.P.C. It is to be noted that the Full
Bench of Madras High Court in Arul Daniel's case (supra) has
considered the decision of Hon'ble Apex Court in Kamatchi's case
(supra) and has observed that the proceeding under Section 482 of the
Cr.P.C. for quashing the proceeding under Section 12 of the D.V. Act is
not maintainable and the remedy available to such a party would be a
statutory appeal before the Sessions Court under Section 29 of the D.V.
Act. Hon'ble Apex Court in Kamatchi's case has considered and
approved the decision of learned Single Judge of Madras High Court in
13 APL179.20+4 (J).odt
Dr. P. Pathmanathan's case (supra). In my view, before proceeding to
appreciate the submissions made on the decision in Kamatchi's case and
other decisions, it would be appropriate to consider the decision of
learned Single Bench of Madras High Court in Dr. P. Pathmanathan's
case (supra). Hon'ble Apex Court in Kamatchi's case has extracted
paragraph 19 from the decision of Dr. P. Pathmanathan's case. In Dr. P.
Pathmanathan's case (supra), the only issue raised was maintainability of
the proceedings under Section 482 of the Cr.P.C. for quashing of D.V.
Act proceedings. The issue of limitation was not involved in the said
case. Learned Single Judge of Madras High Court has considered the
decision of Hon'ble Apex Court in Adalat Prasad's case (supra) and held
that there is no order of issuance of process as contemplated under
Section 204 of the Cr.P.C. in D.V. Act proceeding and therefore, the
principle laid down in Adalat Prasad's case (supra) could not be invoked
in D.V. Act proceeding. It is further pertinent to note that in paragraph
46 of the decision in Dr. P. Pathmanathan's case (supra), learned Single
Judge of Madras High Court has considered the decision of the Full
Bench of Bombay High Court. Paragraph 53 of the decision of the Full
Bench was reproduced. Since, Hon'ble Apex Court has considered and
approved the decision in Dr. P. Pathmanathan's case, it would be
14 APL179.20+4 (J).odt
necessary to reproduce the relevant observations where the Full Bench
of Bombay High Court has been considered. Paragraphs 46 to 50
would be relevant. The same are extracted below :
46. A Division Bench of the Bombay High Court had reached
the same conclusion in Sukumar Pawanlal Gandhi v Bhakti
Sushil Gandhi. However, a Full Bench of the Bombay High
Court in Prabhakar Mohite v State of Maharashtra, AIR 2018
Bom, overruled the decision in Sukumar Pawanlal Gandhi, (cited
supra). The Full Bench correctly noticed that the character of a
proceeding is not dependent upon the nature of the Tribunal but
on the nature of the right violated. The Full Bench held, and
rightly so, that the nature of the right in a proceeding under the
D.V. Act is purely civil in nature. Having held so, the Full Bench,
nevertheless, found that an application under Section 482 Cr.P.C.
would lie and opined thus:
"53. This would mean that generally the provisions of
Criminal Procedure Code would be applicable, to all
proceedings taken under sections 12 to 23 and also in
respect of the offence under section 31 of the D.V. Act,
subject to the exceptions provided for in the Act including
the one under sub-section (2) of section 28. It would then
follow that it is not the nature of the proceeding that would
be determinative of the general applicability of Criminal
Procedure Code to the proceedings referred to in section
28(1) of the D.V. Act, but the intention of the Parliament as
expressed by plain and clear language of the section, which
would have its last word"
In other words, according to the Full Bench, even though the
nature of remedies under the D.V. Act are civil in nature, the
principle that a nature of the proceeding would determine its
character would not apply in view of the intention of Parliament
expressed through Section 28, making the Cr.P.C. applicable.
With all due respect, these observations may not be accurate.
There is a presumption that the legislature is presumed to know
the law when it enacts a piece of legislation. (See CWT v
Bangalore Club, MANU/SC/0675/2020 : (2020) 9 SCC 599).
15 APL179.20+4 (J).odt
Parliament must, therefore, be presumed to be aware of the law
laid down by the Constitution Bench in S.A.L. Narayan Row
(cited supra), wherein it was held that the true test of the nature
of a proceeding must be ascertained with reference to the
character of the right violated and reliefs sought thereon and not
by the nature of the Court adjudicating such a proceeding.
Section 28 of the D.V. Act does not and cannot displace this
principle. As has already been pointed out, the application of
Cr.P.C. to a proceeding under Section 12, by virtue of Section
28(1), is residuary in nature.
47. As a matter of fact, the conclusions of the Full Bench appear
to be contradictory which is evident from the fact that, at
paragraph 40, the Bench agrees that the proceedings under the
D.V. Act are predominantly civil in nature, and it is only when
there is a breach under Section 31 or a failure or refusal by a
Protection Officer as contemplated under Section 33, the
proceedings assume the character of criminality. Having held so,
the Full Bench, at paragraph 56, held that a petition under
Section 482 of the Code would lie in view of the express
applicability of the Cr.P.C. under Section 28(1) of the Act
following a Division Bench of the High Court of Gujarat in Suo
Motu v. Ushaben Kishorbhai Mistry, MANU/GJ/1108/2015 :
2016 2 RCR (Cri) 421.
48. Again, with all due respect, it must be pointed out that in
view of the law laid down by the Supreme Court in S.A.L.
Narayan Row (cited supra) and Ram Kishan Fauji (cited supra),
the nature of the Court or the procedure followed by such a Court
cannot determine the character of the proceeding before it. The
litmus test, in all cases, is focused on the nature of the right
infringed and the relief sought for the vindication of such a right.
This is precisely why the Full Bench of the Bombay High Court
in V.B. D'Monte (cited supra), had ordered a revision to be listed
on its civil side despite the order having been passed by a Court
of Session.
49 . In Ram Kishan Fauji (cited supra), it was sought to be
contended that the Lokayukta is a quasi-judicial body, and an
enquiry at its instance would come within the ambit and scope of
civil and not criminal jurisdiction. Repelling this contention, the
16 APL179.20+4 (J).odt
Supreme Court categorically held that the procedure followed by
the Lokayukta was of no consequence in determining the
character of the proceeding before the Court. The Hon'ble
Supreme Court said:
"18. The maze needs to be immediately cleared. In the
instant case, we are really not concerned with the nature of
the post held by Lokayukta or Upa-Lokayukta. We are also
not concerned how the recommendation of the said
authorities is to be challenged and what will be the
procedure therefor. As has been held by this Court, neither
the Lokayukta nor Upa-Lokayukta can direct
implementation of his report, but it investigates and after
investigation, if it is found that a public servant has
committed a criminal offence, prosecution can be initiated."
The position is unambiguously set out in the following passage in
Ram Kishan Fauji, (cited supra)
"In the case at hand, the writ petition was filed under
Article 226 of the Constitution for quashing of the
recommendation of the Lokayukta. The said
recommendation would have led to launching of criminal
prosecution, and, as the factual matrix reveals, FIR was
registered and criminal investigation was initiated. The
learned Single Judge analysed the report and the ultimate
recommendation of the statutory authority and thought it
seemly to quash the same and after quashing the same, as
he found that FIR had been registered, he annulled it
treating the same as a natural consequence. Thus, the effort
of the writ petitioner was to avoid a criminal investigation
and the final order of the writ court is quashment of the
registration of FIR and the subsequent investigation. In
such a situation, to hold that the learned Single Judge, in
exercise of jurisdiction under Article 226 of the
Constitution, has passed an order in a civil proceeding as
the order that was challenged was that of the quasi-judicial
authority, that is, the Lokayukta, would be conceptually
fallacious. It is because what matters is the nature of the
proceeding, and that is the litmus test."
50. It follows that in view of the law laid down in Narayan Row
(cited supra) and Ram Kishan Fauji (cited supra), that the
character of a proceeding under the D.V. Act, in so far is it relates
to the reliefs under Sections 18 to 23, does not become criminal
17 APL179.20+4 (J).odt
in character merely on account of the procedure under the Cr.P.C.
adopted by the Magistrate. In view of the foregoing discussion,
the inevitable conclusion is that a petition to quash an application
under Section 12 of the D.V. Act is maintainable only by way of a
petition under Article 227 of the Constitution and not under
Section 482, Cr.P.C."
13. In my view, the submissions advanced by the learned
advocates for the applicants to support the maintainability of the
proceeding under Section 482 of Cr.P.C. relying upon the decision of
the Full Bench of this Court in Nandkishor Vyawahare's case (supra),
need to be appreciated keeping in mind the fact that the decision of
learned Single Judge of Madras High Court in Dr. P. Pathmanathan's
case has been approved by Hon'ble Apex Court, wherein the decision of
the Full Bench of the Bombay High Court was considered. It would
be necessary to consider the main question involved before Hon'ble
Apex Court in Kamatchi's case (supra). In Kamatchi's case (supra), the
respondent had challenged the proceeding initiated by the appellant
under Section 12 of the D.V. Act by filing an application under Section
482 of the Cr.P.C. The said application was rejected. The application
made by father-in-law and sister-in-law, under Section 482 of Cr.P.C.
was allowed. Madras High Court had rejected the contention of the
respondent/ husband on merits, however, on the point of limitation, the
18 APL179.20+4 (J).odt
application under Section 12 of the D.V. Act was dismissed by the High
Court. The said order was challenged by the wife by filing an appeal
before the Hon'ble Apex Court. Before Hon'ble Apex Court, on behalf
of the wife, two submissions were advanced. First submission was that
the limitation is not provided for filing application under Section 12 of
the D.V. Act. The limitation provided under Section 468 of the Cr.P.C.
would be applicable only for initiation of criminal prosecution under
Sections 31 and 33 of the D.V. Act. The second submission was that
the judgments relied upon by the High Court were distinguishable and
for that purpose reliance was placed on the decision of learned Single
Judge of Madras High Court in Dr. P. Pathmanathan's case (supra).
Learned advocate for the respondent/husband relied upon the decision
in the case of Sarah Mathew .vs. Institute of Cardio Vascular Diseases
[(2014) 2 SCC 62] to substantiate his submission that period of
limitation would be one year and the same has to be reckoned from the
date of the application. The second submission was made by relying
upon the decision in Aalat Prasad's case (supra). Hon'ble Apex Court,
in Kamatchi's case, has reproduced the said written submission in
paragraph 11. Said paragraph 11 of the Judgment in Kamatchi's case
needs to be extracted. It reads thus :
19 APL179.20+4 (J).odt
"11. In the written submissions, it is also submitted that: -
"This Hon'ble Court in Adalat Prasad v. Rooplal Jindal
held that if a Magistrate takes cognizance of an offence, issues
process without there being any allegation against the accused,
or any material implicating the accused, or in contravention of
provisions of Sections 200 and 202, the order of the Magistrate
may be vitiated. However, the relief an aggrieved accused can
obtain at that stage is not by invoking Section 203 of the Code,
because the Code does not contemplate a review of an order.
Hence in the absence of any review power, or inherent power
with the subordinate criminal courts, the remedy lies in invoking
Section 482 of the Code."
14. It is to be noted that in Dr. P. Pathamanathan's case, the
issue of limitation was not raised and dealt with. The issue involved in
the said case was with regard to maintainability of proceedings under
Section 482 of Cr.P.C for quashing the proceedings filed under Section
12 of the D.V. Act. In order to meet this argument advanced on behalf
of the appellant/wife relying upon the decision in Dr. P.
Pathmanathan's case, learned advocate for the respondent/ husband
before Hon'ble Apex Court relied upon the decision in Adalat Prasad's
case and submitted that in absence of review power or inherent power
with the subordinate criminal courts, the remedy lies in invoking
Section 482 of the Cr.P.C. It is, therefore, necessary to state at this stage
that two issues were involved before the Hon'ble Apex Court. The
second issue was with regard to maintainability of the proceeding under
Section 482 of the Cr.P.C. for quashing the proceedings initiated under
20 APL179.20+4 (J).odt
Section 12 of the D.V Act. The relevant observations made by the
Hon'ble Apex Court in Kamatchi's case (supra) needs to be considered.
For the said purpose, it would be profitable to extract paragraphs 28 to
31 from the said decision. The same reads thus :-
"28. The special features with regard to an application under
Section 12 of the Act were noticed by a Single Judge of the High
Court in Dr. P.Padmanathan & Ors. as under:
"19. In the first instance, it is, therefore, necessary to
examine the areas where the D.V. Act or the D.V. Rules
have specifically set out the procedure thereby excluding
the operation of Cr.P.C. as contemplated under Section
28(1) of the Act. This takes us to the D.V. Rules. At the
outset, it may be noticed that a "complaint" as
contemplated under the D.V. Act and the D.V. Rules is not
the same as a "complaint" under Cr.P.C. A complaint under
Rule 2(b) of the D.V. Rules is defined as an allegation made
orally or in writing by any person to a Protection Officer.
On the other hand, a complaint, under Section 2(d) of the
Cr.P.C. is any allegation made orally or in writing to a
Magistrate, with a view to his taking action under the Code,
that some person, whether known or unknown has
committed an offence. However, the Magistrate dealing
with an application under Section 12 of the Act is not
called upon to take action for the commission of an offence.
Hence, what is contemplated is not a complaint but an
application to a Magistrate as set out in Rule 6(1) of the
D.V. Rules. A complaint under the D.V. Rules is made only
to a Protection Officer as contemplated under Rule 4(1) of
the D.V. Rules.
20. Rule 6(1) sets out that an application under Section 12
of the Act shall be as per Form II appended to the Act.
Thus, an application under Section 12 not being a
complaint as defined under Section 2(d) of the Cr.P.C, the
procedure for cognizance set out under Section 190(1)(a)
of the Code followed by the procedure set out in Chapter
XV of the Code for taking cognizance will have no
application to a proceeding under the D.V. Act. To reiterate,
21 APL179.20+4 (J).odt
Section 190(1)(a) of the Code and the procedure set out in
the subsequent Chapter XV of the Code will apply only in
cases of complaints, under Section 2(d) of Cr.P.C, given to a
Magistrate and not to an application under Section 12 of
the Act."
29. It is thus clear that the High Court wrongly equated filing of
an application under Section 12 of the Act to lodging of a
complaint or initiation of prosecution. In our considered view,
the High Court was in error in observing that the application
under Section 12 of the Act ought to have been filed within a
period of one year of the alleged acts of domestic violence.
30. It is, however, true that as noted by the Protection Officer in
his Domestic Inspection Report dated 2.08.2018, there appears
to be a period of almost 10 years after 16.09.2008, when nothing
was alleged by the appellant against the husband. But that is a
matter which will certainly be considered by the Magistrate after
response is received from the husband and the rival contentions
are considered. That is an exercise which has to be undertaken by
the Magistrate after considering all the factual aspects presented
before him, including whether the allegations constitute a
continuing wrong.
31. Lastly, we deal with the submission based on the decision in
Adalat Prasad. The ratio in that case applies when a Magistrate
takes cognizance of an offence and issues process, in which event
instead of going back to the Magistrate, the remedy lies in filing
petition under Section 482 of the Code. The scope of notice
under Section 12 of the Act is to call for a response from the
respondent in terms of the Statute so that after considering rival
submissions, appropriate order can be issued. Thus, the matter
stands on a different footing and the dictum in Adalat Prasad
would not get attracted at a stage when a notice is issued under
Section 12 of the Act.
15. It is to be noted that paragraph 19 of Dr.P.Pathmanathan's
case has been considered by the Hon'ble Apex Court in Kamatchi's case.
Hon'ble Apex Court has held that an application under Section 12 of
22 APL179.20+4 (J).odt
the D.V. Act cannot be equated with the lodging of complaint or
initiation of the prosecution. Hon'ble Apex Court has held that the
decision in the case of Adalat Prasad (supra) would not be applicable to
substantiate the argument to invoke Section 482 Cr.P.C in D.V. Act
proceeding when a notice is issued under Section 12 of the D.V. Act.
The decision in Adalat Prasad's case would be applicable when a
Magistrate takes cognizance of the offence and issue process and not in
the matter of issuance of notice under Section 12 of the D.V. Act. The
matter of taking cognizance for issuance of process and matter under
Section 12 of the D.V. Act stands on different footing and therefore, the
decision in Adalat Prasad's case would not get attracted at the stage
when notice is issued under Section 12 of the Act.
16. The decision in Kamatchi's case (supra) was considered by
the Full Bench of Madras High Court in the case of Arul Daniel's case
(supra). Similarly, in Arul Daniel's case, the decision of the Full Bench
of Bombay High Court in Nandkishor Vyawahare's case (supra) was
considered. The issue involved before the Full Bench of Madras High
Court was as to whether the proceeding under Section 482 of the
Cr.P.C. for quashing the proceeding initiated under Section 12 of the
23 APL179.20+4 (J).odt
D.V. Act would be maintainable or not. The Full Bench of Madras
High Court has analyzed the powers and jurisdiction of the Magistrate.
Similarly, the Full Bench has considered whether the Court of
Magistrate could be said to be a Criminal Court as understood by the
Cr.P.C. In Arul Daniel's case (supra), paragraphs 32 to 40 are relevant
on the point under discussion. These paragraphs are extracted below.
"32. At this juncture, it is necessary to notice that the word
"jurisdiction" relates to the power of the Court to decide a class or
classes of cases. The import of the expression has been considered
by the Supreme Court in Nusli Neville Wadia v Ivory Properties
[(2020) 6 SCC 557], wherein, it was observed as under:
"The word "jurisdiction" is derived from Latin words "juris"
and "dico", meaning "I speak by the law" and does not relate
to rights of parties as between each other but to the power
of the court. Jurisdiction relates to a class of cases to which
a particular case belongs. Jurisdiction is the authority by
which a judicial officer takes cognizance and decides the
cases. It only presupposes the existence of a duly
constituted court having control over subject-matter which
comes within classification limits of the law under which
court has been established. It should have control over the
parties' litigant, control over the parties' territory, it may
also relate to pecuniary as well as the nature of the class of
cases. Jurisdiction is generally understood as the authority
to decide, render a judgment, inquire into the facts, to
apply the law, and to pronounce a judgment. When there is
the want of general power to act, the court has no
jurisdiction. When the court has the power to inquire into
the facts, apply the law, render binding judgment, and
enforce it, the court has jurisdiction. Judgment within a
jurisdiction has to be immune from collateral attack on the
ground of nullity. It has co-relation with the constitutional
24 APL179.20+4 (J).odt
and statutory power of tribunal or court to hear and
determine. It means the power or capacity fundamentally to
entertain, hear, and determine." (emphasis supplied)
33. In view of the above, the power of the Magistrate to
entertain and decide an application under Section 12 and grant
one or more reliefs under the D.V. Act is an aspect of his
jurisdiction. It is settled law that jurisdiction is an issue that
belongs to the realm of substantive law. Procedural law, on the
other hand, prescribes the mode and manner in which such
jurisdiction is to be exercised. A character of the Court is an
essential aspect of its substantive jurisdiction, and would depend
on the nature or subject matter of the case before it.
34. In V.B. D'Monte v Bandra Borough Municipality [AIR 1950
Bom 397], the question before the Full Bench of Bombay High
Court was whether an application for revision against an order of
a Magistrate made under Section 110 of the Bombay Municipal
Boroughs Act, 1925, lies on the civil or criminal side of the High
Court. Under the scheme of the Act, Magistrates or Benches of
Magistrate were to be designated as appellate authorities under
Section 110 of the Act. The contention raised before the Full
Bench was as follows:
"Now the contention put forward is that inasmuch as the
decision is given by a Magistrate under s. 110 and an appeal
from the Magistrate's decision lies to the High Court on its
criminal side, the order of the Magistrate should be revised
by the High Court on its criminal side and not on its civil
side."
35. Speaking for the Full Bench, Chagla, C.J. repelled the
aforesaid contention observing, inter alia, as under:
"Now it cannot be disputed that the subject matter of the
decision of the Magistrate is a purely civil matter. He is
dealing with rates and taxes. He is not exercising any
criminal jurisdiction, nor is he dealing with any criminal
matter. Therefore when the matter comes before us in
revision, it is a matter which is civil in its nature; and we
25 APL179.20+4 (J).odt
see no reason why such a matter should be entertained on
the criminal side of the High Court and not on the civil
side.
....
.....
.......The better view seems to be that a criminal Court may
be constituted as a Court designata and civil jurisdiction
may be conferred upon that Court. If a criminal Court
exercises that jurisdiction, then it is not necessarily an
inferior criminal Court within the meaning of the Criminal
Procedure Code; and if a right of revision is given from a
decision of such a Court, then that revisional application is
civil in its character and not criminal." (emphasis supplied)
36. From the aforesaid, it is evident that where the subject
matter for decision before the Magistrate is purely a civil matter,
he cannot be said to be exercising criminal jurisdiction or be
dealing with a criminal matter. We are in respectful agreement
with the aforesaid conclusion of the learned Chief Justice.
We also find that this conclusion is fortified by the decision of
the Supreme Court in S.A.L. Narayan Row v Ishwarlal
Bhagwandas [(1966) 1 SCR 190], wherein, it was observed as
under:
"The character of the proceeding, in our judgment,
depends not upon the nature of the tribunal which is
invested with authority to grant relief, but upon the nature
of the right violated and the appropriate relief which may
be claimed. A civil proceeding is, therefore, one in which a
person seeks to enforce by appropriate relief the alleged
infringement of his civil rights against another person or
the State, and which if the claim is proved would result in
the declaration express or implied of the right claimed and
relief such as payment of debt, damages, compensation,
delivery of specific property, enforcement of personal
rights, determination of status etc." (emphasis supplied)
26 APL179.20+4 (J).odt
37. Thus, in our considered opinion, the character of the
proceeding, must be ascertained having regard to the nature of
the subject matter and the reliefs sought. Viewed thus, there can
be no two opinions that the proceeding before the Magistrate is
essentially civil in character. The Magistrate under the D.V. Act
is, to borrow the words of Chagla, C.J., in V.B. D'Monte, supra, a
"Court designata" and not a "Criminal Court". Consequently, we
cannot agree with the conclusion of the Division Bench in P.
Ganesan, supra, that "the nature of the procedure adopted would
determine the character of the Tribunal", for, that would imply
that a Criminal Court must be defined not as one "with
jurisdiction over criminal matters", but as one which "exercises
criminal procedure over certain matters". To borrow the words of
Sir Henry Maine, that would be secreting a facet of jurisdiction,
which is a matter of substantive law, into the "the interstices of
procedure".
38. Since we are agreeing with the opinion of the Bombay
High Court in Jaswant Singhji (supra) that a proceeding under
Section 125 Cr.P.C. is not a criminal proceeding, we are required
to answer a seminal doubt, viz., "if a proceeding under Section
125 Cr.P.C. is not a criminal proceeding, then, how can a revision
petition under Section 397 Cr.P.C. or a petition under Section
482 Cr.P.C. be maintained?" The short answer to this question is
that an order made by the Magistrate under Chapter IX, which
envisages a right for maintenance and provides a remedy thereof,
is nonetheless an order passed "under the Code" (See Sec 482
Cr.P.C). Consequently, an order passed under Section 125\
Cr.P.C. is revisable under Section 397 Cr.P.C. or the proceeding
itself can be challenged in an appropriate case under Section 482
Cr.P.C. Whereas, an order passed granting one or more reliefs
under the D.V. Act, is not an order passed under Chapter IX of
the Cr.P.C. It remains an order passed under the D.V. Act which
is susceptible to an appeal under Section 29 of the said Act.
There is no appeal from an order under Chapter IX Cr.P.C, and
such order can, nonetheless, be revised under Section 397
Cr.P.C, since it is an order made under the provisions of the
Code.
27 APL179.20+4 (J).odt
39. We are, therefore, of the considered opinion that in a
proceeding under Chapter IV of the D.V. Act, a Magistrate
exercises civil jurisdiction to grant one or more civil reliefs under
Sections 18-23 of that Act. Consequently, we affirm the view of
N. Anand Venkatesh, J. in Pathmanathan, supra, that a
Magistrate exercising jurisdiction under Section 12 of the D.V.
Act, is not a Criminal Court for the purpose of Chapter IV of the
said Act.
40. As a sequitur, in view of the law laid down by the Supreme
Court in Sujit Kumar Rana, supra, that a petition under Section
482 Cr.P.C. is maintainable only against the proceedings of a
Criminal Court, we also affirm the view in Pathmanathan, supra,
that a petition under Section 482 Cr.P.C. is not maintainable to
challenge a proceeding under Chapter IV of the D.V. Act."
17. The Full Bench of Madras High Court in the above
discussion has considered the Full Bench decision of the Bombay High
Court in V.B. D'monte .vs. Bandra Borough Municipality (supra). It is
to be noted that this decision of the Full Bench was not cited before the
Full Bench of Bombay High Court in Nandkishor Vyawahare's case
(supra). In this case, Full Bench of Bombay High Court has held that
criminal court may be constituted as a "Court designata" and civil
jurisdiction may be conferred upon that Court. If a criminal Court
exercises that jurisdiction, then it is not necessarily an inferior criminal
Court within the meaning of the Criminal Procedure Code; and if a
right of revision is given from a decision of such a Court, then that
revisional application is civil in its character and not criminal. It is to be
28 APL179.20+4 (J).odt
noted that this is one of the reasons recorded by the Full Bench of
Madras High Court for coming to the conclusion that application under
Section 482 of Cr.P.C. for quashing the proceeding initiated under
Section 12 of the D. V. Act is not maintainable.
18. The second and most important reason assigned by the
Full Bench of Madras High Court in Arul Daniel's case (supra) for
taking a view that application under Section 482 of Cr.P.C. is not
maintainable seeking quashment of the proceeding under Section 12 of
the D.V. Act, is by following the decision of the Hon'ble Apex Court in
Kamatchi's case (supra). Paragraphs 49 and 50 from Arul Daniel's case
are relevant for this purpose. The same are extracted below :
"49. We also notice that in many cases, such as the cases on
hand, a challenge is straightaway made primarily by in-laws and
others contending that the application arraying them as a
respondent is an abuse of process. In such cases, upon receipt of
notice from the Magistrate Court, it would be open to the
respondents to approach the Magistrate and file their responses
or seek deletion of their names by way of an appropriate
application. In Pathmanathan, supra, the learned single judge has
observed thus:
"In the first instance, it is, therefore, necessary to examine
the areas where the D.V. Act or the D.V. Rules have
specifically set out the procedure thereby excluding the
operation of Cr.P.C. as contemplated under Section 28(1)
of the Act. This takes us to the D.V. Rules. At the outset, it
may be noticed that a "complaint" as contemplated under
29 APL179.20+4 (J).odt
the D.V. Act and the D.V. Rules is not the same as a
"complaint" under Cr.P.C. A complaint under Rule 2(b) of
the D.V. Rules is defined as an allegation made orally or in
writing by any person to a Protection Officer. On the other
hand, a complaint, under Section 2(d) of the Cr.P.C. is any
allegation made orally or in writing to a Magistrate, with a
view to his taking action under the Code, that some person,
whether known or unknown has committed an offence.
However, the Magistrate dealing with an application under
Section 12 of the Act is not called upon to take action for
the commission of an offence. Hence, what is contemplated
is not a complaint but an application to a Magistrate as set
out in Rule 6(1) of the D.V. Rules. A complaint under the
D.V. Rules is made only to a Protection Officer as
contemplated under Rule 4(1) of the D.V. Rules.
20. Rule 6(1) sets out that an application under Section 12
of the Act shall be as per Form II appended to the Act.
Thus, an application under Section 12 not being a
complaint as defined under Section 2(d) of the Cr.P.C., the
procedure for cognizance set out under Section 190(1)(a)
of the Code followed by the procedure set out in Chapter
XV of the Code for taking cognizance will have no
application to a proceeding under the D.V. Act. To
reiterate, Section 190(1)(a) of the Code and the procedure
set out in the subsequent Chapter XV of the Code will
apply only in cases of complaints, under Section 2(d) of
Cr.P.C., given to a Magistrate and not to an application
under Section 12 of the Act."
50. The aforesaid observations have been quoted by the
Supreme Court in Kamatchi, supra. It was also contended before
the Supreme Court in Kamatchi, supra, that in view of the
decision in Adalat Prasad v Rooplal Jindal29, once notice was
issued by the Magistrate, the only remedy for a respondent in a
D.V. case was to challenge the said proceedings under Section
482 Cr.P.C. Rejecting this submission, the Supreme Court held
as under:
30 APL179.20+4 (J).odt
"Lastly, we deal with the submission based on the decision
in Adalat Prasad. The ratio in that case applies when a
Magistrate takes cognizance of an offence and issues
process, in which event instead of going back to the
Magistrate, the remedy lies in filing petition under Section
482 of the Code. The scope of notice under Section 12 of
the Act is to call for a response from the respondent in
terms of the Statute so that after considering rival
submissions, appropriate order can be issued. Thus, the
matter stands on a different footing and the dictum in
Adalat Prasad would not get attracted at a stage when a
notice is issued under Section 12 of the Act."
19. The Full Bench of Madras High Court has noted that
Hon'ble Apex Court in Kamatchi's case (supra) has considered the
decision of learned Single Bench of Madras High Court in Dr. P.
Pathmanathan's case (supra). The Full Bench of Madras High Court
relying upon the decision in Kamatchi's case, has held that the petition
under Section 482 of Cr.P.C. challenging the proceeding initiated under
Section 12 of the DV. Act, is not maintainable. In my view, therefore, it
cannot be said that Hon'ble Apex Court in Kamatchi's case, has not
considered the issue of maintainability of the proceeding under Section
482 of the Cr.P.C. The Full Bench of Madras High Court has heavily
relied upon the decision in Kamatchi's case (supra) to conclude that
petition under Section 482 of Cr.P.C. challenging the proceeding under
Section 12 of the D.V. Act, is not maintainable.
31 APL179.20+4 (J).odt
20. I am conscious of the fact that the Full Bench decision of
Bombay High Court is binding on this Court. The question involved in
this case is whether reliance can be placed on the decision of the Full
Bench of Bombay High Court in view of the law laid down by the
Hon'ble Apex Court in Kamatchi's case (supra). The Full Bench of
Madras High Court, relying upon the decision in Kamatchi's case, has
held that Hon'ble Apex Court with certainty has stated that the
proceeding under Section 12 of the D.V. Act cannot be equated with the
complaint filed under the Code of Criminal Procedure and therefore,
the proceeding under Section 482 of Cr.P.C. challenging the proceeding
under Section 12 of the D.V. Act, is not maintainable. In my view, the
decision of Hon'ble Apex Court in Kamatchi's case has now settled the
legal position on this issue. It is binding on this Court. In this
background, reliance placed by the learned advocates for the applicants
on the Full Bench of Bombay High Court in Nandkishor Vyawahare's
case (supra) needs appreciation. In my view, in the backdrop of the law
laid down by Hon'ble Apex Court in Kamatchi's case (supra), the
submissions advanced by the learned advocates for the applicants
relying upon the Full Bench decision of Bombay High Court cannot be
sustained. It is to be noted that paragraph 53 from the decision of the
32 APL179.20+4 (J).odt
Full Bench of Bombay High Court was reproduced in paragraph 46 of
the decision of the learned Single Judge of Madras High Court in Dr. P.
Pathmanathan's case (supra). It needs to be stated that in paragraph
46, a mistake appears to have been committed while stating the names
of the parties. The names of the parties have been stated as Prabhakar
Mohite .vs. State of Maharashtra. In fact, Full Bench decision of
Bombay High Court in Nandkishor Pralhad Vyawahare .vs. Mangala,
was relied upon by the learned Single Judge of Madras High Court.
Part of paragraph 53 of the decision of Full Bench of this Court in
Nandkishor Vyawahare's case (supra) was reproduced in paragraph 46
by the learned Single Judge of the Madras High Court. It is, therefore,
apparent that Hon'ble Apex Court while approving the decision in
Dr.P.Pathmanathan's case, has taken note of the decision of the Full
Bench of Bombay High Court in the case of Nandkishor Vyawahare
(supra). It is true that no specific observation has been made by the
Hon'ble Apex Court, however the approval of decision in the case of
Dr. P. Pathmanathan's case (supra) fortifies the submissions advanced
by the learned advocates for the non-applicants that the issue was
squarely dealt with by the Hon'ble Apex Court.
33 APL179.20+4 (J).odt
21. In my view, therefore, the submissions advanced by the
learned advocates for the applicants relying upon the decision of the
Full Bench of Bombay High Court in Nandkishor Vyawahare's case
(supra) cannot be sustained. Learned advocate Mr. Sirpurkar submitted
that the decision of the Full Bench decision is binding on this Court,
but if this Court is of the opinion that the conflict in the decisions of the
Full Bench of Bombay High Court and Full bench of Madras High
Court needs to be resolved, then the matter be referred to the bench of
larger strength. In this context it needs to be stated that such a
reference would be necessitated if this Court opines that the view of the
Full Bench of Madras High Court is the correct view and the view
expressed by the Full Bench of Bombay High Court is not the correct
view. Here in this case, the question of making reference will not arise
because on the same point there is decision of the Hon'ble Apex Court
in Kamatchi's case (supra) wherein it has been held relying upon the
decision of Adalat Prasad's case (supra) that the contention of
maintainability of proceeding under Section 482 of Cr.P.C. challenging
proceeding under section 12 of the D.V. Act, cannot be entertained.
Therefore, in my view, in this case there is no need of reference to the
larger bench. The issue can be resolved and answered on the basis of
34 APL179.20+4 (J).odt
the decision of Hon'ble Apex Court in Kamatchi's case (supra) and
acceptance of the said view of Hon'ble Apex Court with necessary
elaboration by the Full Bench of the Madras High Court in Arul
Daniel's case (supra).
22. In the facts and circumstances, I conclude that the
applications made under Section 482 of Cr.P.C. challenging the
proceeding under Section 12 of the D.V. Act, are not maintainable. The
applications, therefore, can be dismissed. However, instead of
dismissing the applications, it would be appropriate to give an option to
the parties to withdraw the same with liberty to take recourse to the
available appropriate remedy. If the parties do not avail such liberty,
then the applications can be ordered to be dismissed.
23. Accordingly, it is ordered that the parties are free to
withdraw the applications with liberty to take recourse to the
appropriate remedy within eight days from the date of this order. If the
applications are not withdrawn with the liberty as above, then the
applications shall stand dismissed being not maintainable.
35 APL179.20+4 (J).odt
24. Before parting with the judgment, I place on record my
appreciation for the assistance rendered by learned advocates Mr. S.V.
Sirpurkar, Mr. I.S. Charlewar, Mr. Parwez Mirza and Ms. Ayushi
Dangre.
(G. A. SANAP, J.)
Diwale
