Sambhunath Panda & Ors vs State Of Orissa & Ors
2021 Latest Caselaw 12354 Ori

  AFR
                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  CRLREV No. 759 of 2017

                  Sambhunath Panda & Ors.                  ....               Petitioners
                                                                Mr. H.S. Deo, Advocate
                                                -versus-
                  State of Orissa & Ors.                   ....       Opposite Parties
                                                             Mr. S.S. Pradhan, AGA
                                                        Mr. Debasis Samal, Advocate
                                                          (For O.P. Nos.2 and 3)

                          CORAM:
                          JUSTICE SAVITRI RATHO
Order No.                                   ORDER
                                           02.12.2021
  10.       1.    Heard Mr. H.S. Deo, learned counsel for the petitioners, Mr. S.S.
            Pradhan, learned Additional Government Advocate and Mr. Debasis
            Samal, learned counsel for the Opposite Party No.2-wife and Opposite
            Party No.3-child through hybrid mode.
            2.    Vide order dated 19.06.2017 passed by the learned J.M.F.C.,
            Dhamnagar in D.V. Misc. Case No. 01 of 2015, the learned Magistrate
            has allowed the application for amendment of the prayer portion of the
            application under Section 12 of the Protection of Women from
            Domestic Violence Act, 2005 holding that the amendment sought for
            by the petitioners is formal in nature and will not change the nature and
            character of the case. Keeping in view the interest of justice, the
            petition has been allowed.
                   This order has been confirmed by the learned Additional
            Sessions Judge in CRL APPEAL No. 45 of 2017 vide judgment dated
            12.09.2017.
             3.     Mr.H.S Deo , learned counsel for the petitioners has challenged
            the aforesaid order and judgment passed by the two Court. He submits

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that the said amendment for correction of the prayer portion will
change the nature and character of the DV petition and is otherwise not
maintainable as the proceeding under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 ( in short "DV Act") is a
criminal proceeding and there is no provision for amendment in the
Crl.P.C .
4.      Mr. Debasis Samal, learned counsel for the Opposite Party
Nos.2 & 3 supports the impugned order submitting that they do not call
for any interference . He brings to my notice the decision of the Hon'ble
Apex Court rendered in the case of Kunapareddy alias Nookala
Shanka Balaji vs. Kunapareddy Swarna Kumari and Anr. reported
in (2016)11 SCC 774, wherein the Hon'ble Apex Court has held that:-
        " 17. What we are emphasizing is that even in criminal
        cases governed by the Code, the Court is not powerless
        and may allow amendment in appropriate cases. One of
        the circumstances where such an amendment is to be
        allowed is to avoid the multiplicity of the proceedings.
        The argument of the learned Counsel for the Appellant,
        therefore, that there is no power of amendment has to be
        negated.
        18.     In this context, provisions of Sub-section (2) of
        Section 28 of the DV Act gain significance. Whereas
        proceedings under certain Sections of the DV Act as
        specified in Sub-section (1) of Section 28 are to
        be governed by the Code, the Legislature at the same
        time incorporated the provisions like Sub-section (2) as
        well which empowers the Court to lay down its own
        procedure for disposal of the application under
        Section 12 or Section 23 (2) of the DV Act.
        This provision has been incorporated by the Legislature
        keeping a definite purpose in mind. Under Section 12, an
        application can be made to a Magistrate by an aggrieved
        person or a Protection Officer or any other person on
        behalf of the aggrieved person to claim one or more
        reliefs under the said Act. Section 23 deals with the
        power of the Magistrate to grant interim and ex-parte
        orders and Sub-section (2) of Section 23 is a special
        provision carved out in this behalf which is as follows:
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              "23 (2) If the Magistrate is satisfied that an application prima
              facie discloses that the Respondent is committing, or has

committed an act of domestic violence or that there is a likelihood that the Respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person Under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the Respondent."

19. The reliefs that can be granted by the final order or an by 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 sub-serve itself may be defeated in many cases...... "

He also relies on the decision of the Hon'ble Apex Court rendered in the case of S.R. Sukumar vrs. S. Sunaad Raghuram: (2015)9 SCC 609 where the the Hon'ble Apex Court has held as follows : -

"...18. In so far as merits of the contention allowing the application for amendment, it is true that there is no specific provision in the code to either amend a complaint or a petition under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints ........."

"19. What is discernible from the U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint.

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20. In the instant case, the amendment application was filed on 24.05.2007 to carry out the amendment by adding paras 11(a) and 11 (b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, the publication of poem 'Khalnayakaru' being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application. Considering these factors which weighed in the mind of the courts below, in our view, the High Court rightly declined to interfere with the order passed by the Magistrate allowing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution of India."

5. In the present case, amendment of the prayer portion of the application filed under Section - 12 of the DV Act, has been sought for by adding prayers for additional reliefs. These reliefs are available to the applicants and they could have filed a separate application with these prayers. But allowing the additional prayers to be included in the complaint would prevent multiplicity of litigation and have therefore been rightly allowed. Moreover the DV Act is a beneficial legislation and rejection of the amendment on hyper technical ground would not be in the interest of justice. Even if it as assumed that the amendment will change the nature and character of the application to some extent, no prejudice will be caused to the petitioners as they will have a chance to file an objection to the amended/ consolidated application.

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6. In view of the aforesaid discussion and after considering the submissions of the counsels, I do not find this is a fit case to interfere with the impugned orders. The Criminal Revision is accordingly dismissed.

Interim order passed earlier stands vacated.

7. Since the case is pending since 2017, the learned Magistrate shall do well to dispose of the application expeditiously keeping in view the provisions of Section 12(5) of the Protection of Women from Domestic Violence Act, 2005.

Urgent certified copy of this order be granted on proper application.

(Savitri Ratho) Judge puspa