Heard both sides.
2. The germane facts absolutely necessary for the disposal of this
petition would run thus:
The respondent herein preferred a complaint under Section 12 of the
Protection of Women from Domestic Violence Act making allegations as against the
husband and his relatives. The respondents 1 to 6 therein preferred this
Crl.O.P.(MD) No.10280 of 2010 to get quashed the said application filed by the
respondent Suganya Devi on various grounds.
3. The learned counsel for the petitioners in the present petition placing
reliance on the grounds of the petition filed under Section 12 of the Protection
of Women from Domestic Violence Act would submit that ex-facie and prima-facie
no case has been made out so as to attract the provisions of the Protection of
Women from Domestic Violence Act; certain false statements are found set out in
the application that she had been driven out of the matrimonial home; she also
lodged a complaint against the petitioners invoking Section 498(A) I.P.C. and
other sections and the petition under Section 125 Cr.P.C. claiming maintenance
was filed by her; being not satisfied with those proceedings, she has come
forward with the petition under the Protection of Women from Domestic Violence
Act arraying all the petitioners without any ground whatsoever; there are self
contradictory statements also between the version as found set out in the
Domestic Violence Act and in the previous cases. Accordingly he prays for
quashment of the petition on the ground that it is filed only to harass the
husband viz. the 1st petitioner and his relatives, who are in no way concerned
with the actual matrimonial dispute between the husband and wife.
4. Whereas the learned counsel for the respondent would oppose the move
for quashment on various grounds by pointing out that this is not a fit case for
quashment and according to him, the matter has to be gone into by the
Magistrate.
5. The point for consideration is as to whether there are sufficient
grounds for quashment under Section 482 Cr.P.C.?
6. At this juncture, I would like to recollect and hark back to the
decisions of the Honourable Apex Court as under:
1.Kunga Nima Lepcha and others v. State of Sikkim and others reported in (2010)
2 Supreme Court Cases (Cri) 878;
2.Rubabbuddin Sheikh v. State of Gujarat and others reported in (2010) 2 Supreme
Court Cases (Cri) 1006.
3.Ram Ram Lal Narang v. State (Delhi Administration)) reported in (1979) 2 Supreme
Court Cases 322.
4.State of Haryana v. Bhajan Lal reported in AIR 1992 SUPREME COURT 604.
Certain excerpts from it, would run thus:
"108. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the exercise of the
extraordinary powers under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above, we given the following
categories of cases by way of illustration wherein such power could be exercised
either to prevent abuse of the process of any Court or otherwise to secure the
ends of justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulate and to give an exhaustive list of myriad kinds of cases wherein such
power should be exercised.
1. Where the allegations made in the First Information Report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against
the accused.
2. Where the allegations in the First Information Report and other
materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview of Section 155(2) of
the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the commission of
any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.
6. Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where
there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with male fide
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge."
In fact, the raison d'etre of Section 482 Cr.P.C., is based on the maxim "Quando
aliquid mandatur, mandatur et omne per quod perventur ad ilud." (When anything
is commanded, everything by which it can be accomplished is also commanded.)
7. The learned counsel for the petitioner has invited the attention of
this Court to the averments in the application filed under Section 12 of the
Protection of Women from the Domestic Violence Act and has argued that those are
all mere narrations and not backed by probable or possible evidence. According
to him, the summons issued also to the petitioners is one nomenclatured as
summons to the accused person, which itself is not tenable. The petitioners are
having avocation of their own and if they are dragged to the Magistrate Court,
then they will not be able to carry on with their day to day work.
8. At the outset the Magistrate was not right in issuing the summons to
the accused person in this case invoking Section 61 of the Code of Criminal
Procedure. The learned counsel for the petitioners in this petition would
appropriately and appositely refer to Section 13 of the Protection of Women from
Domestic Violence Act, which is extracted hereunder for ready reference:
"13.Service of notice. - (1) A notice of the date of hearing fixed under
Section 12 shall be given by the Magistrate to the Protection Officer, who shall
get it served by such means as may be prescribed on the respondent, and on any
other person, as directed by the Magistrate within a maximum period of two days
or such further reasonable time as may be allowed by the Magistrate from the
date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in
such form as may be prescribed shall be the proof that such notice was served
upon the respondent and on any other person as directed by the Magistrate unless
the contrary is proved."
Along with that, I would like to refer to Section 28 of the said Act, which
reads as follows:
"28. Procedure. (1) Save as otherwise provided in this Act, all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under
Section 31 shall be governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the Court from laying down
its own procedure for disposal of an application under section 12 or under sub-
section (2) of section 23."
9. A mere reading of Section 13 of the said Act would amply make the point
clear that at the initial stage, the Magistrate was not justified in treating
the respondents in this case as accused and as such, hereafter relating to
applications under Section 12 of the Protection of Women from Domestic Violence
Act, the Magistrate should not issue summons under Section 61 Cr.P.C. treating
the respondents as accused. What is contemplated under Section 13 of the Act is
a notice specifying the date etc., The endeavour should be on the part of the
officer concerned is to deal with the matter gently and treating the respondents
in a gentle manner and that should not be lost sight of. Unless the appearance
of the respondents are absolutely necessary on a particular date, they should
not be simply harassed by compelling them to appear as though they are
offenders. The Magistrate should not loose sight of the fact that so long as the
case is anterior to the protection order being passed, they should be treated
only as respondents. However, after the order under Section 18 of the Act is
passed and if there is violation, then the proceedings might get changed and
become criminal proceedings. As such, the Magistrates hereafter would
scrupulously adhere to the mandates contained in the Act itself.
10. The contention of the learned counsel for the petitioner in this
Criminal Original Petition is that the case of the petitioner in the petition
filed under the Protection of Women from Domestic Violence Act is false. The
truth or falsity of the averments made in the petition filed under domestic
violence case cannot be gone into, now in this criminal original petition in
view of the dicta as found set out in the decisions cited supra. In fact, before
passing the Protection Order under Section 18 of the said Act enquiry has to be
conducted, only with an intention to bring together the parties. The protection
officer as well as the Magistrate should encourage and enthuse the parties to
burry the hatchet and have peaceful living mixed with harmony and understanding.
This Court while exercising its jurisdiction under Section 482 of Cr.P.C. at
this stage is not expected to interfere and stall the proceedings also.
11. Paramount, it is, to consider the gamut and the scope of the Act,
namely The Protection of Women from Domestic Violence Act, 2005; certain
excerpts from the objects and reasons are of immense importance which would run
thus:
"2. The phenomenon of domestic violence is widely prevalent but has
remained largely invisible in the public domain. Presently, where a women is
subjected to cruelty by her husband or his relatives, it is an offence under
Section 4980A of the Indian Penal Code. The civil law does not however address
this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights
guaranteed under articles 14, 15 and 21 of the Constitution to provide for a
remedy under the civil law which is intended to protect the woman from being
victims of domestic violence and to prevent the occurrence of domestic violence
in the society."
12. The term 'civil law' twice used therein is not an empty formality and
that would exemplify and demonstrate, display and convey that the proceedings at
the first instance should be civil in nature. The legislators were conscious of
the fact that all of a sudden if criminal law is enforced on the husband and his
relatives, certainly that might boomerang and have deliterious effect in the
matrimonial relationship between the husband and wife. The object of the Act is
that the victim lady should be enabled by law to live in the matrimonial family
atmosphere in her husband/in-laws' house. It is not the intention of the said
enactment to enable the lady to get snapped once and for all her relationship
with her husband or the husband's family and for that, civil law and civil
remedies are most efficacious and appropriate and keeping that in mind alone in
the Act, the initiation of action is given the trappings of civil proceedings
which the authorities including the Magistrate responsible to enforce the said
Act should not loose sight of.
13. The status of the respondents should not be treated as that of accused
and that would spoil the very tenor and tone with which the Act has been
drafted. Keeping that in mind alone, Section 13 of the Act would contemplate
only service of notice on the respondents and Rule 6(5) of the Protection of
Women from Domestic Violence Rules, would contemplate that the applications
under Section 12 shall be dealt with inconformity with Section 125 of the Code
of Criminal Procedure, 1973.
14. It is obvious that the proceedings under Section 125 Cr.P.C are not in
stricto sensu criminal proceedings.
15. After the passing of the protection order, if there is any violation,
then only, such violation would constitute an offence under Section 31 of the
said Act and Section 32 of the Act would indicate that such violation would
amount to a cognizable and non-bailable offence.
16. It is, therefore, clear that the initial proceedings are civil in
nature and the learned Magistrate should be extraordinary careful in selecting
the appropriate persons as the respondents. Simply because the application
under Section 12 of the Act might refer to large number of persons as
respondents, the learned Magistrate is not duty bound to issue notice to all of
them and there should be application of mind on the part of the Magistrate in
selecting the respondents as to whom notice should be sent, as otherwise having
too many respondents before the learned Magistrate, would constitute a stumbling
block for arriving at a conclusion in summary proceedings. The famous adage
"Too much of anything is good for nothing" should not be forgotten.
17. As such, keeping in mind the spirit of the Act and the purpose sought
to be achieved, the learned Magistrate should process the application.
18. As such, at this stage, this Court cannot simply quash the proceedings
under the Protection of Women from Domestic Violence Act on the ground that the
petitioners in the Criminal Original Petition state that the allegations made in
the Domestic Violence Act are all false.
19. The learned counsel for the petitioners would submit that the parties
are at Chennai and the 1st petitioner is the husband, the second petitioner is
the father of A1, the 3rd petitioner is the mother of A1, the 4th and 5th
petitioners are the brothers of A1 and the 6th petitioner is the wife of A5 and
it is difficult for them to appear before the Magistrate on every hearing.
20. Ex-facie and prima-facie, it is clear that the husband, his parents
and his relatives have been summoned as accused, which the Magistrate could have
avoided. Hence, I would like to sensitize that let the Magistrate apply his
mind as to whether the presence of the respondents is absolutely necessary on a
particular date and accordingly, send notice to such of those persons whose
presence are absolutely necessary. The Magistrate shall see that the matter is
dealt with as expeditiously as possible. Whenever any one or more of the
respondents seek to get excuse from their absence in the proceedings, they are
at liberty to petition the Magistrate which shall be considered sympathetically,
but without detriment to the proceedings.
21. With the above observations, this petition is closed. Consequently,
connected M.Ps. are closed.
sj
To
1.The Judicial Magistrate No.II,
Madurai.