Madhya Pradesh High Court
Aditya Kumar And Ors vs Ankita Pacholi on 6 August, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1 MCRC-53560-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 6th OF AUGUST, 2024
MISC. CRIMINAL CASE No. 53560 of 2022
ADITYA KUMAR AND ORS AND OTHERS
Versus
ANKITA PACHOLI
Appearance:
Ms. Anuradah Vasisth - Advocate for applicants.
Shri Sundaram Singh - Advocate for respondent.
ORDER
This is a petition filed under Section 482 of Cr.P.C. seeking
quashment of complaint and ensued proceedings pending before Civil
Judge, Class-II, Gairatganj, District Raisen under Sections 9(B) and
37(2)(c) of Protection of Women from Domestic Violence Act.
2. Learned counsel for the applicant contends that the
respondent/complainant has filed a complaint under the provisions of
Domestic Violence Act (herein after referred to as D.V. Act) and in the
complaint, vague and general allegations have been levelled. The
complainant approached the Protection Officer and the Protection
Officer submitted a DIR which has been filed along with the petition as
Annexure-A/1. The entire DIR does not contain the specific allegations,
and therefore, the quashment of the same has been sought.
2. Learned counsel for the applicant contends that in the case in
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hand, the complainant approached the Protection Officer. The Protection
Officer, in prescribed form no.1, in terms of Rule 5(1)(2) and Rule 17(c)
of D.V. Rules submitted a complaint with the trial Court. The said
complaint does not contain the specific particulars like date, time and
place on which the complainant was subjected to cruelty. The entire
complaint in the form of DIR is vague and in the prayer clause there is a
prayer by the complainant for grant of maintenance. It is contended by
the counsel that on the basis of such a complaint, the proceedings are
unsustainable and deserve to be quashed.
3. Learned counsel for the applicant in support of her arguments
has placed reliance on the decision of the Apex Court in the case of
Shyamlal Devda and Ors. vs. Parimala [(2020) 3 SCC 14].
4. Learned counsel for the applicant has also placed reliance on the
decision of the High Court of Bombay in the case of Dhananjay Mohan
Zombade vs. Prachi (2023 SCC OnLine Bom 1607).
5. Learned counsel for the applicant has further placed reliance on
the decision of Madra High Court in the case of P. Damodaran and Ors.
vs. Anjali @ Malailoundu Anjalai (2024 0 Supreme (Mad) 505).
6. It is contended by the counsel that in view of the aforesaid
judgments, in exercise of powers conferred under Section 482 of
Cr.P.C., the complaint DIR deserve to be quashed.
7. Per contra, learned counsel for the respondent submits that the
present 482 petition is not maintainable inasmuch as, the proceedings
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under the D.V. Act are of civil nature as has been held by the Apex
Court as well as various High Courts, therefore, the present petition is
not maintainable whereby, the quashment of a complaint filed under the
D.V. Act has been sought.
8. Learned counsel for the respondent has placed reliance on the
order passed by the Indore Bench of this Court in the case of Ankit
Gehlot and Ors. vs. Smt. Anjali (M.Cr.C. No.52034/2022).
9. Learned counsel for the respondent has also placed reliance on
the decision of Madra High Court in the case of Arun Daniel and Ors.
vs. Suganya (2022 SCC OnLine Mad 5435).
10. No other point is pressed or argued by the parties.
11. Heard the submissions and perused the record.
12. A perusal of the record reflects that the respondent has
approached the trial Court through Protection Officer. Protection Officer,
submitted a domestic violence report which is called DIR (Annexure-
A/1). The report is in prescribed format and the report contains the
allegations of manhandling in the year 2019 against the present applicant
and there are allegations of sexual violence as well. The other allegations
are also regarding the dowry, restraining complainant from working and
the allegation regarding her character assassination is also there. The
dowry related allegations are also there at serial no.5 and according to
the complainant, the same pertains to year 2019. The demand of specific
articles in dowry have also been explained in the complain at serial no.6
4 MCRC-53560-2022
of the DIR. A prayer has been made for an order of maintenance and at
the last page of DIR, there is a prayer to initiate penal action.
13. After the DIR report, there is an application which starts from
page no.23. In the application, the relief in terms of Section 20 of D.V.
Act has been elaborated in paragraph 3 (iv) of the application. Thus, a
perusal of the DIR and the application reflect that the prayer has been
made by the complainant before the trial Court as regards grant of
maintenance. The proceedings under the D.V. Act are civil in nature and
this issue does not require any debate as, the same was considered by the
Apex Court in the case of Kunapareddy vs. Kunapareddy Swarna
Kumari (2016 11 SCC 774).
14. The Apex Court in the case of Kunapareddy (supra) held in
paragraphs 12 and 19 as under:
12. In fact, the very purpose of enacting the DV Act
was to provide for a remedy which is an
amalgamation of civil rights of the complainant i.e.
aggrieved person. Intention was to protect women
against violence of any kind, especially that
occurring within the family as the civil law does not
address this phenomenon in its entirety. It is treated
as an offence under Section 498-A of the Penal
Code, 1860. The purpose of enacting the law was to
provide a remedy in the civil law for the protection
of women from being victims of domestic violence
and to prevent the occurrence of domestic violence
in the society. It is for this reason, that the scheme
of the Act provides that in the first instance, the
order that would be passed by the Magistrate, on a
complaint by the aggrieved person, would be of a
civil nature and if the said order is violated, it
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assumes the character of criminality.
19.The reliefs that can be granted by the final order
or by an interim order, have already been pointed
out above wherein it is noticed that most of these
reliefs are of civil nature. If the power to amend the
complaint/application, etc. is not read into the
aforesaid provision, the very purpose which the Act
attempts to subserve itself may be defeated in many
cases.
15. The judgement of the Apex Court was then considered by the
High Court of Madras in the case of Dr. P. Pathmanathan vs. V. Monica
[(2021) SCC OnLine Mad 8731] and the High Court of Madras also
declined to entertain the petition filed under Section 482 of Cr.P.C.
while observing in paragraphs 47 and 52 as under.
47. The Hon'ble Supreme Court eventually
concluded that it is conceptually fallacious to
determine the nature of the proceeding with
reference to the nature of the Court, since the litmus
test is the nature of the proceeding, nothing more
nothing less. Applying the aforesaid test, it is
beyond a pale of controversy that all of the reliefs
claimed under Chapter IV of the Act are civil in
nature for the enforcement of civil rights, as was
held by the Supreme Court in Kunapareddy (cited
supra) and a proceeding before the Magistrate
would, therefore, partake the character of a civil
and not a criminal proceeding.
52. It is entirely true that the nomenclature of the
petition is not decisive of the jurisdiction of the
Court. Section 482, Cr.P.C. merely saves the
inherent power of the High Court to make such
orders as may be necessary to a) give effect to an
order under this Code; or b) prevent abuse of
process of any Court; or c) otherwise secure the
ends of justice. It is well settled that this section has
not given any new power to the High Court but has
6 MCRC-53560-2022
merely preserved the power inherently possessed by
every High Court as a superior Court of record. As
a highest Court of Justice in the State, the High
Court exercises a visitorial or supervisory
jurisdiction over all Courts in the State. However,
the plenitude of the inherent power under Section
482, Cr.P.C. does not extend to annul proceedings
which are not before a Criminal Court. As pointed
out supra, to constitute a criminal court, it is not
sufficient that the Court is one of the Courts
enumerated under Section 6 Cr.P.C, it is also
necessary that the proceedings before it are criminal
in character. If the proceeding before the Court is
civil in nature, then it cannot be said that the Court
is a Criminal Court exercising criminal jurisdiction
for the purposes of Section 482, Cr.P.C.
16. Before the Indore Bench of this Court also, the identical issue
came up for consideration in the case of Ankit Gehlot (supra) and this
Court also held in paragraph 9 as under:
Thus it is evident that the proceedings under the
Act, 2005 are of civil nature and assume criminality
only upon breach of protection order under Section
31 and refusal to discharge duty by the protection
officer. Inherent power of the High Court under
Section 482 of the Cr.P.C can be invoked only for
redressal of grievance arising from the orders
passed in the proceedings under the Act. As long as
the proceedings are continuing before the
Magistrate and no order is passed therein under
Section 12, 18, 19, 20, 21, 22, 23 and 31 of the Act,
the inherent power under Section 482 of the Cr.P.C
cannot be invoked meaning thereby that the
proceedings under the Act, 2005 cannot
be challenged by way of a petition under Section
482 of the Cr.P.C and it is only an order passed
therein which can be so challenged. In the present
case the petitioners have challenged the
7 MCRC-53560-2022
maintainability of the proceeding itself and have
prayed for quashment of the complaint. They have
not prayed for quashment of any order passed under
the Act, 2005. The cognizance order dated
22/6/2022 cannot by any stretch of imagination be
said to be an order passed under various provisions
of the Act, 2005
17. Thus, if a holistic view is taken recourse to the same would
reveal that the proceedings under the D.V. Act are civil in nature and
only in the event of violation of a protection order, there is provisions for
penal action in terms of Section 31 of D.V. Act.
18. Section 31 of D.V. Act palpably makes it clear that in the
event of breach of a protection order or of an interim protection order,
the conduct of the respondent would be punishable.
19. The protection order has been defined in Section 18 of the Act
and the order of monetary reliefs has been detailed in Section 20 of the
Act. The maintenance can also be granted in terms of Section 20(1)(d) of
the D.V. Act. The Apex Court in the case of Shyamlal Devda (supra)
considered the aspect where the allegations were levelled against the
relatives of the spouse and accordingly, the Apex Court quashed the
proceedings in respect of appellant nos.3 to 13 therein and allowed the
appeal partly. Therefore, the issue before the Apex Court was
maintainability of the complaint so far as, the same pertained to the
relatives of the spouse. The Apex Court considered the aspects as there
were no specific allegations against the relatives of the spouse
8 MCRC-53560-2022
accordingly, the Apex Court proceeded to pass the order.
20. The Apex Court in the case of Shyamlal Devda (supra) held in
paragraph 9 as under:
In the present case, the respondent has made
allegations of domestic violence against fourteen
appellants. Appellant 14 is the husband and
Appellants 1 and 2 are the parents-in-law of the
respondent. All other appellants are relatives of
parents-in-law of the respondent. Appellants 3, 5, 9,
11 and 12 are the brothers of father-in-law of the
respondent. Appellants 4, 6 and 10 are the wives of
Appellants 3, 5 and 9 respectively. Appellants 7
and 8 are the parents of Appellant 1. Appellants 1
to 6 and 14 are residents of Chennai. Appellants 7
to 10 are the residents of the State of Rajasthan and
Appellants 11 to 13 are the residents of the State of
Gujarat. Admittedly, the matrimonial house of the
respondent and Appellant 1 has been at Chennai.
Insofar as Appellant 14 husband of the respondent
and Appellants 1 and 2 parents-in-law, there are
averments of alleged domestic violence alleging
that they have taken away the jewellery of the
respondent gifted to her by her father during
marriage and the alleged acts of harassment to the
respondent. There are no specific allegations as to
how other relatives of Appellant 14 have caused the
acts of domestic violence. It is also not known as to
how other relatives who are residents of Gujarat and
Rajasthan can be held responsible for award of
monetary relief to the respondent. The High Court
was not right in saying that there was prima facie
case against the other Appellants 3 to 13. Since
there are no specific allegations against Appellants
3 to 13, the criminal case of domestic violence
against them cannot be continued and is liable to be
quashed.
9 MCRC-53560-2022
21. The Apex Court in the aforesaid paragraph has taken into
consideration that the appellant nos.1 to 6 and 14 therein were residents
of Chennai, appellant nos.7 to 10 therein were residents of the State of
Rajasthan and appellant nos.11 to 13 therein were residents of the State
of Gujarat. Thereby the Apex Court considered that as to how other
relatives of the spouse had caused the domestic violence, it was not
clear, as they were residing in different States.
22. Thus, judgments as relied upon by the counsel for the
applicant are distinguishable on facts.
23. Resultantly, this Court is of the considered view that in view
of the judgement of the Apex Court in the case of Kunapareddy (supra)
and this Court in the case of Ankit Gehlot (supra), the present petition is
not maintainable and accordingly, the same stands dismissed.
(MANINDER S. BHATTI)
JUDGE
mn
