A.S. Oka, J.:— The following is the question involved in this Writ Petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”).
“Whether High Court can exercise power under Section 482 of the Cr.P.C for quashing an application made under Sub-Section (1) of Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short “D.V Act”)?”
2. A brief reference to the facts of the case will be necessary.
3. The first Respondent is the wife of one Sushil Sukumar Gandhi (for short “the husband”). The first Petitioner is the father of the husband and the second Petitioner is the brother of the husband. The second Respondent is the daughter of the first Respondent. The first and second Respondents filed an application under Sub-Section (1) of Section 12 of the D.V Act before the learned Judicial Magistrate, First Class at Baramati. The marriage between the first Respondent and her husband was solemnized on 11 December, 2009. The said application was filed by the first and the second Respondents seeking various reliefs under Sections 17, 18, 19, 20 and 22 of the D.V Act. At the instance of the first Respondent, a First Information Report was registered against the Petitioners and the husband alleging commission of offences under Sections 498A, 323, 504, 506 read with Section 34 of the Penal Code, 1860 with the City Police Station at Baramati. A private complaint has been filed by the husband against the first Respondent and another accused who is a Development Officer of Life Insurance Corporation of India alleging commission of offences under Sections 191, 192, 197, 463, 465, 468 read with Section 34 of the Penal Code, 1860. On the said complaint, the learned Magistrate ordered an inquiry under Section 202 of Cr.P.C.
4. The application under Sub-Section (1) of Section 12 of the D.V Act was contested by the Petitioners by filing their reply In the application under Sub-Section (1) of Section 12, the first and second Respondents also applied for interim orders in accordance with Section 23 of the D.V Act.
5. The submission of the learned counsel appearing for the Petitioners is that the Court which is empowered to grant relief under the D.V Act essentially acts as a Criminal Court in view of the provision of Section 28 which provides that all proceedings under Sections 12, 18 to 23 and the offence under Section 31 shall be governed by the provisions of Cr.P.C. His submission is as a Court of Judicial Magistrate of First Class or Metropolitan Magistrate, as the case be, is conferred with the jurisdiction to deal with applications under Sub-Section (1) of Section 12, this Court can always exercise power under Section 482 of the Cr.P.C. He relied upon a decision of the Division Bench of Allahabad High Court in the case of Saman Ismail v. Rafiq Ahmad 2002 Cri. LJ 3648. He also relied upon a decision of Full Bench of Kerala High Court in the case of Satyabhama v. Ramchandran 1998 (1) Crimes 143. He submitted that while disposing of an application under Section 125 of Cr.P.C, a Family Court exercising jurisdiction under clause (a) of Sub-Section (2) of Section 7 of the Family Courts Act, 1984 (for short “the said Act of 1984”) acts as Criminal Court and not as a Civil Court. He also relied upon a decision of Full Bench of Kerala High Court in the case of Mammoo v. State Of Kerala (1979) 2 ILR (Ker) 721. Reliance was also placed by him on the decision of the Apex Court in the case of Ashish Dixit v. State of Uttar Pradesh (2013) 4 SCC 176 and decision of the Division Bench of this Court in the case of Vikrant Sudhakar Ambhore v. Varsha Vikrant Ambhore (2014) ALL MR (Cri) 2826. His submission is that this Court can always exercise power under Section 482 of the Cr.P.C to quash proceedings of an application filed under Sub-Section (1) of Section 12 of the D.V Act. His submission is that on plain reading of the complaint, none of the allegations made therein constitute domestic violence as contemplated under the D.V Act. His contention is that the Petitioners are staying away from the second Respondent and her husband from the year 2011.
6. The learned Public Prosecutor has assisted the Court by inviting attention of the Court to a recent decision of the Apex Court in the case of Kunapareddy alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari 2016 SCC OnLine SC 531. He also invited our attention to the decision of the learned Single Judge of this Court dated 2 March, 2016 in Writ Petition No. 647 of 2016 (Rohit John Shenai v. Crystal Rohit Shenai. The learned counsel for the Petitioners also invited our attention to the view taken by a Division Bench of the Gujrat High Court in the case of Suo Motu v. Ushaben Kishorbhai Mistry ABC 2016 (I) 131 Guj.
7. We have given careful consideration to the submissions. As far as the nature of proceedings under the D.V Act is concerned, the law has been laid down by the Apex Court in the recent decision in the case of Kunapareddy. The issue before the Apex Court was whether the Court before which an application under Sub-Section (1) of Section 12 of the D.V Act is made has a power to permit amendment to the said application. In an application under Sub-Section (1) of Section 12 pending before the learned Judicial Magistrate First Class, the first Respondent before the Apex Court had filed an application seeking amendment to the application under Sub-Section (1) of Section 12. The learned Judicial Magistrate, First Class allowed the amendment by holding that Section 26 of the D.V Act entitles a Civil Court or Family Court or a Criminal Court to grant any relief which is available to the applicant under Sections 18 to 22 of the D.V Act. The learned Magistrate held that the provisions of the Code of Civil Procedure, 1908 will squarely apply to the application. The order of the Magistrate was set aside by the District and Sessions Judge in an Appeal preferred by the husband. In Revision filed by the wife, the High Court interfered and restored the order of the First Court. The argument of the Appellant-husband before the Apex Court was that the Criminal Court has no power to permit an amendment under the Cr.P.C. The order of the learned Magistrate was upheld by the Apex Court. In paragraph 12 the Apex Court observed thus:
“At the same time, it cannot be disputed that these proceedings are predominantly of civil nature.”
(emphasis added)
8. In paragraph 13 of the said decision, the Apex Court considered very purpose of enacting the D.V Act. Paragraph 13 of the said decision read thus:—
“13. 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 498A 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 assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:
“INTRODUCTION.
The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Penal Code, 1860. In order 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 the protection of Women from Domestic Violence Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS
Domestic violence is undoubtedly a human Right issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation NO. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially the occurring within the family.
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.
4. The Bill, inter alia, seeks to provide for the following:—
(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate. 8 of 30
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting the communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.”
(emphasis added)
9. In paragraph 14, the Apex Court held thus:
“14. Procedure for obtaining order of reliefs is stipulated in Chapter IV of the DV Act which comprises Sections 12 to 29. Under Section 12 an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person. The Magistrate is empowered, under Section 18, to pass protection order. Section 19 of the DV Act authorizes the Magistrate to pass residence order which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or directing the respondent to remove himself from the shared household or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides etc. Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act include giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. Custody can be decided by the Magistrate which was granted under Section 21 of the DV Act. Section 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are of civil nature. Section 23 vests the Magistrate with the power to grant interim ex-parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are of civil nature. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence.”
(emphasis added)
10. In paragraph 12, the Apex Court observed that the proceedings under Sections 18 and 20 of the D.V Act are predominantly of civil nature. In paragraph 13, as noted above, the Apex Court observed 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. If the said order is violated, it assumes the character of criminality Paragraphs 15 is very material which read thus:—
“15. In the aforesaid scenario, merely because Section 28 of the DV Act provides for that the proceedings under some of the provisions including Sections 18 and 20 are essentially of civil nature. We may take some aid and assistance from the nature of the proceedings filed under Section 125 of the Code. Under the said provision as well, a woman and children can claim maintenance. At the same time these proceedings are treated essentially as of civil nature.”
11. Hence, the Apex Court made it very clear that various kinds of reliefs which can be granted by the Magistrate are of civil nature. In paragraph 15, it was reiterated that though Section 28(1) provides that the proceedings under Sections 12 and 18 to 23 will be governed by Cr.P.C, the proceedings are essentially of civil nature. The Apex Court thereafter considered the provision of Section 28 in paragraph 19. Paragraphs 18 and 19 read thus:—
“18. What we are emphasising 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.
19. 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:
“(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.”
12. Section 28 of the D.V Act reads thus:—
“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.”
13. In view of Sub-Section (2) of Section 28, it is not necessary for the Court dealing with an application under Sub-Section (1) of Section 12 to always follow the provisions of Cr.P.C. The Court can devise its own procedure to deal with such applications.
14. It will be necessary to make a reference to Section 12 of the D.V Act which reads thus:—
“12. Application to Magistrate. - (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:—
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the Respondent.
Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.”
15. Sub-Section (1) is a salutary provision which enables not only the aggrieved person but a Protection Officer or any other person on behalf of the aggrieved person to present an application to the Magistrate seeking one or more reliefs under the D.V Act. Sub-Section (3) of Section 12 contemplates that every application under Sub-Section (1) shall be in such form and contain such particulars as may be prescribed. Accordingly Rule 6 of the Protection of Women from Domestic Violence Rules, 2006 (for short “D.V Rules”) prescribes a form of application under Sub-Section (1) of Section 12 and a form of affidavit under Sub-Section (2) of Section 23. We have perused the Form II. Perusal thereof will show that detailed factual averments are not at all required to be made. The Form of application reads thus:—
Protection of Women from Domestic Violence Rules, 2006
Form II
Form II
[See Rule 6(1)]
Application to the Magistrate under Section 12 of the Protection of Women from Domestic
Violence Act, 2005 (43 of 2005)
The Court of Magistrate
………………………………… .…. ………………………………
…………………………………
…………………………………
Application under section .…. ………………… of the Protection of Women from
Domestic Violence Act, 2005 (43 of 2005)
SHOWETH:
1. That the application under section .…. ………….. of Protection of Women from Domestic Violence Act, 2005 is being filed along with a copy of Domestic Incident Report by the:—
(a) Aggrieved person £
(b) Protection Officer £
(c) Any other person on behalf of the aggrieved £ person (tick whichever is applicable)
2. It is prayed that the Hon'ble Court may take cognizance of the complaint/Domestic Incident Report and pass all/any of the orders, as deemed necessary in the circumstances of the case
(a) Pass protection orders under Section 18 and/or
(b) Pass residence orders under Section 19 and/or
(c) Direct the respondent to pay monetary relief under Section 20 and/or
(d) Pass orders under Section 21 of the Act and/or
(e) Direct the respondent to grant compensation or damages under Section 22 and/or
(f) Pass such interim orders as the court deems just and proper
(g) Pass any orders as deems fit in the circumstances of the case
3. Orders required:
(i) Protection Order under Section 18
• Prohibiting acts of domestic violence by granting an injunction against the Respondent/s from repeating any of the acts mentioned in terms of Column 4(a)/(b)/(c)/(d)/(e)/(f)/(g) of the application
• Prohibiting Respondent(s) from entering the school/college/workplace
• Prohibiting from stopping you from going to your place of employment
• Prohibiting Respondent(s) from entering the school/college/any other place of your children
• Prohibiting from stopping you from going to your school
• Prohibiting any form of communication by the Respondent with you
• Prohibiting alienation of assets by the Respondent
• Prohibiting operation of joint bank lockers/accounts by the Respondent and allowing the aggrieved person to operate the same
• Directing the Respondent to stay away from the dependants/relatives/any other person of the aggrieved person to prohibit violence against them
• Any other order, please specify (ii) Residence Order under Section 19
• An order restraining Respondent(s) from
• Dispossessing or throwing me out from the shared household
• Entering that portion of the shared household in which I reside
• Alienating/disposing/encumbering the shared household
• Renouncing his rights in the shared household
• An order entitling me continued access to my personal effects
• An order directing Respondent(s) to
• Remove himself from the shared household
• Secure same level of alternate accommodation or pay rent for the same
• Any other order, please specify (iii) Monetary reliefs under Section 20
• Loss of earnings, Amount claimed
• Medical expenses, Amount claimed
• Loss due to destruction/damage or removal of property from the control of the aggrieved person,
Amount claimed
• Any other loss or physical or mental injury as specified in clause 10 (d)
Amount claimed
• Total amount claimed
• Any other order, please specify
(iv) Monetary reliefs under Section 20
• Directing the Respondent to pay the following expenses as monetary relief:
• Food, clothes, medications and other basic necessities,
Amount per month
• School fees and related expenses
Amount per month
• Household expenses
Amount per month
• Any other expenses
Amount per month
• Any other order, please specify
(v.) Custody Order under Section 21 Direct the Respondent to hand over the custody of the child or children to the
•Aggrieved person
• Any other person on her behalf, details of such person
(vi) Compensation order under Section 22
(vii) Any other order, please specify
4. Details of previous litigation, if any
(a) • Under the Penal Code, 1860, Sections ………. Pending in the court of
• Disposed of, details of relief
(b) • Under CrPC, Sections ……………… Pending in the court of
• Disposed of, details of relief
(c) • Under the Hindu Marriage Act, 1956, Sections ……. Pending in the court of
• Disposed of, details of relief
(d) • Under the Hindu Adoptions and Maintenance Act, 1956, Sections …… pending in the court of
• Disposed of, details of relief
(e) • Application for Maintenance, under section ……… under Act
Interim maintenance Rs. p.m.
Maintenance granted Rs. p.m.
(f) • Whether Respondent was sent to Judicial Custody
• For less than a week • For less than a month
• For more than a month Specify period
(g) Any other period
Prayer:
It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to grant the relief(s) claimed therein and pass such order or orders other order as this Hon'ble Court may deem fit and proper under the given facts and circumstances of the case for protecting the aggrieved person from domestic violence and in the interest of justice.
Complainant/Aggrieved Person
Through
Counsel
Verified at ……………(place) on this day of ………………. that the contents of Paras 1 to 12 of the above application are true and correct to the best of my knowledge and nothing material has been concealed therefrom
Deponent
Countersignature of Protection Officer with date
16. Thus, clause 1 provides only for one information as to whether the applicant is an aggrieved person or a Protection Officer or any other person acting on behalf of the aggrieved person. Clause 2 contains a list of prayers and clause 3 of the prescribed form only gives a list of orders which are required to be passed. Clause 4 of the form requires details of previous litigations, if any. When an interim relief is claimed, an affidavit in prescribed form is required to be filed. The said Form is as under:
Protection of Women from Domestic Violence Rules, 2006
Form III
Form III
[See Rules 6(4) and 7]
Affidavit under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005
In the Court of ………………..; MM,………………
P/S: ……………
IN THE MATTER OF:
Ms. …………………. & Others … Complainant
Mr. …………………. & Others … Respondent
I, ……………………, w/o Mr. …………………., R/o ………..………………………….. D/o Mr. …………………………, R/o ………………………………………………………….., presently residing at ………………………………………… do hereby solemnly affirm and declare on oath as under:
1. That I am the Applicant in the accompanying Application for ……………….. filed for myself and for my daughter/son
2. That I am the natural guardian of ………………………………………………
3. That being conversant with the facts and circumstances of the case I am competent to swear this
4. That the Deponent had been living with the Respondent/s at ……………….. since ………… to ………
5. That the details provided in the present Application for the grant of relief under Section(s) ……….. have been entered into by me/at my instructions
6. That the contents of the application have been read over, explained to me in English/Hindi/any other local language (Please specify………………………..)
7. That the contents of the said application may be read as part of this affidavit and are not repeated herein for the sake of brevity
8. That the applicant apprehends repetition of the acts of domestic violence by the Respondent(s) against which relief is sought in the accompanying application
9. That the Respondent has threatened the Applicant that ………..………………….. …………………………………………………………………………………………………………. …………………………………………………………………………………………………………. ………………………………………………………………………………………………………….
10. That the reliefs claimed in the accompanying application are urgent in as much as the applicant would face great financial hardship and would be forced to live under threat of repetition/escalation of acts of domestic violence complained of in the accompanying application by the Respondent(s) if the said reliefs are not granted on an ex-parte ad-interim basis
11. That the facts mentioned herein are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom
DEPONENT
Verified at ……………… on this ……………… day of ……………… 20 ……… That the contents of the above affidavit are correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed therefrom
DEPONENT
17. Clause 9 of Form III requires the Applicant to specify the threat given by the Respondent. Even going by the said form, it is not necessary to make detailed averments therein. Therefore, if an application is made under Sub-Section (1) of Section 12 in Form II under the D.V Rules or any affidavit in support is filed in Form III of the D.V Rules, the same need not contain detailed averments on facts. It is not necessary to incorporate factual averments therein making out a case that a particular act or omission or conduct of the Respondent/s constitutes a domestic violence within the meaning of Section 3 of the D.V Act. It is a matter of inquiry to be made by the concerned Court before which reliefs under the D.V Act are sought. The reason for providing such a form appears to be that the application under Sub-Section (1) of Section 12 can be made not only by an aggrieved party, but by a Protection Officer or by any other person on behalf of the aggrieved party who may not be aware of the factual details. The protection officer or other person may not be aware of all the factual details. Therefore, an argument that the averments made in the application under Sub-Section (1) of Section 12 do not constitute domestic violence is not at all available as the prescribed form does not contemplate incorporation of any such detailed averments. Therefore, it was not necessary for the first and second Respondents in the present case to make detailed averments setting out the particulars of the acts or omissions which constitute domestic violence.
18. Another salutary provision is Sub-Section (4) of Section 12 which mandates that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the Application by the Court.
19. From the language used by Sub-Section (4) of Section 12, it is apparent that the Court before which an application is filed need not follow the procedure of recording a verification statement and of issuing process. It is not a Complaint within the meaning of Chapter XV of Cr.P.C. Therefore, the procedure which is required to be followed under Chapter XV is not applicable to an Application under Section 12. Sub-Section (4) Section 12 contemplates that immediately after filing an Application under Section 12, a date for hearing shall be fixed which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. Another important provision is Sub-Section (5) of Section 12 which requires the Court to endeavour to dispose of every application under Sub-Section (1) of Section 12 within a period of sixty days from the date of its first hearing. On plain reading of Sub-Section (1) of Section 28, the provisions of Cr.P.C are required to be followed which are not inconsistent with what is provided under the D.V Act. Moreover, Sub-Section (2) of Section 28 specifically empowers the Court to follow its own procedure by making a departure of the provisions of Cr.P.C.
20. The Apex Court has repeatedly held that a litigant who approaches a Court with false case deserves no protection and, therefore, his case can be thrown out at any stage. Therefore, in case of an application under Sub-Section (1) of Section 12, in view of Sub-Section (2) of Section 28, if the Court finds that case made out therein is based on falsehood, the Court can dismiss the Application under Section 12. In view of Sub-Section (2) of Section 28 of the D.V Act, the Court in a very fit case has a discretion to throw out the Application at any stage.
21. At this stage, a reference will have to be made to the decision of the learned Single Judge of this Court in the case of Rohit John Shenai The learned Single has considered the entire Scheme of the Act. In paragraphs 56 to 58, the learned Single Judge has held thus:—
56. It has also to be kept in mind that the D.V Act is enacted to provide quick and effective remedy to the aggrieved woman. Section 12 of the Act provides that the first date of hearing shall not ordinarily be beyond three days from the receipt of the application by the Court and Section 12(5) further mandates that the Magistrate shall endeavour to dispose of every application made under this Section within a period of sixty days from the date of its first hearing. Hence, shutting the doors of this forum, specially created for her to get her grievances redressed as early as possible, in a more effective way is rendering the very object of the D.V Act nugatory and frustrated.
57. Moreover, in the present case, proceedings before the Family Court are initiated by the Petitioner No. 1 husband subsequent to Respondent No. 1 filing of this application under the D.V Act. It is not that Respondent No. 1, the wife, has initiated two simultaneous proceedings at two different forums siutate at two different places and the States, only with an intention to harass the Petitioners. Proceedings for divorce are filed by the Petitioner husband in Family Court at Hyderabad, whereas, Respondent No. 1 is residing at maternal house in Pune with her daughter of one and half year. Hence, calling upon her to go to Hyderabad to seek redressal of her grievances and to get amount of maintenance, will act against the very object of the D.V Act. The object of the Legislature behind granting jurisdiction to Magistrate is to ensure that the said Court is available at every small Taluka place, where woman resides so as to provide her easy access to Courts, unlike Family Courts which are presently at the district places only. The object of Legislature also in granting concurrent jurisdictions to all the three Courts - Civil Court, Family Court and Magistrate Court was to enable her to seek remedy in the pending proceedings and not to confine her to one forum, which may not be convenient to her and which husband has chosen or to drive her away from the forum chosen by her to the one chosen by her husband subsequently and which may not be convenient to her at all, as in the instant case. It is as good as taking away the rights given to her by the Legislature.
58. It is pertinent to note that, despite the availability of existing forums like Family Courts and Civil Courts for an aggrieved woman to seek the reliefs of injunction or maintenance, the Legislature has taken a conscious decision in its wisdom to provide her one more forum of the Court of the Magistrate so as to provide her efficacious and quick remedy. The Court cannot take away by its decision what is given to her by the Legislature.”
22. We have carefully perused the judgment of the Apex Court in the case of Ashish Dixit In the said decision, the Apex Court has not considered the legal question whether the power under Section 482 of the Cr.P.C can be exercised to quash an Application under Sub-Section (1) of Section 12 of the D.V Act. Paragraphs 1 to 4 of the said decision read thus:—
“1. Leave granted. This appeal is directed against the judgment and order dated 5-7-2010 passed by the High Court of Judicature of Allahabad in Ashish Dixit v. State of U.P. [Criminal Miscellaneous Application No. 8358 of 2008, decided on 5-7-2010 (All)] By the impugned judgment and order, the High Court has refused to quash the proceedings initiated against the petitioners by Respondent 2 wife, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity “the 2005 Act”).
2. In the petition filed by Respondent 2, apart from arraying her husband and her parents-in-law as parties to the proceedings, she has included all and sundry as respondents. To say the least, she has even alleged certain actions said to have been done by the tenant whose name is not even known to her.
3. In a matter of this nature, we are of the opinion that the High Court at least should have directed that the petition filed by Respondent 2 be confined to her husband as also her parents-in-law and should not have allowed the impleadment of Respondents 4 to 12. In view of the above, while allowing this appeal in part, we quash the proceedings as against Appellants 4 to 12 in Case No. 240 of 2007. We direct the learned Chief Judicial Magistrate, Agra to proceed with the aforesaid case only against the husband i.e. Shri. Ashish Dixit s/o Padmakar Dutt Sharma; her father-in-law, Shri. Padmakar Dutt Sharma s/o late Pt. Diwakar Dutt Sharma and Smt. Girja Dixit w/o Shri. Padmakar Dutt Sharma, her mother-in-law. 4. We are of the opinion that the direction issued by the High Court, inter alia, directing the appellants herein to appear before the trial court and seek bail is wholly unnecessary.”
(emphasis added)
23. Similarly, in the case of Vikrant Sudhakar Ambhore, the issue whether power under Section 482 of the Cr.RC can be exercised for quashing an application under Sub-Section (1) of Section 12 was not agitated before a Division Bench of this Court and therefore, was not decided.
24. In the case of Satyabhama v. Ramchandran, the Full Bench of Kerala High Court considered the following two issues:—
1] Whether the Family Court acts as a Civil Court or as Criminal Court while disposing of applications under Section 125 of the Cr.P.C?
2] Whether Revision filed under Sub-Section (4) of Section 19 of the Act of 1984 is to be treated and numbered as Civil Revision Application or Criminal Revision Application?
25. The Full Bench answered the issue by holding that the Family Court while dealing with applications under Section 125 of the Cr.P.C acts as a Criminal Court and a Revision Application under Sub-Section (4) of Section 19 is liable to be treated as a Revision filed against the orders passed by the Court acting as Criminal Court and not as a Civil Court. An application under the Section 125 of the Cr.P.C is a proceeding under Cr.P.C. Therefore, the said decision is of no help in the present case. While dealing with an application under Sub-Section (1) of Section 12 of the D.V. Act, a Court of Magistrate does not act as a Criminal Court merely because there is a power vesting in the Court to follow certain procedural provisions of Cr.P.C.
26. In the case of Mammoo, the Full Bench of Kerala High Court held that a District Magistrate acting under Sub-Section (1) of Section 16 of the Indian Telegraph Act, 1885 does not discharge functions as a Criminal Court. In the case of Saman Ismail, a Division of Bench of Allhabad High Court was dealing with an issue whether a revision under Section 397 of Cr.P.C is maintainable against an order passed by the learned Magistrate under the Muslim Women (Protection of Rights of Divorce) Act, 1986. It was held that a Revision is maintainable under Section 397 of Cr.P.C.
27. These decisions will not help the Petitioners at all in view of the decision of the Apex Court in the case of Kunapareddy. Except for Section 31, the provisions of the D.V Act are essentially of a civil nature. In fact, the Apex Court held that the very purpose of enacting the D.V Act is of providing a remedy for the enforcement of amalgamation of civil rights of the complainant/aggrieved person. Therefore, the Apex Court held that in the first instance, the order that would be passed on an application under Sub-Section (1) of Section 12 would be of a civil nature and if the said order is violated, it assumes the character of criminality. Even under the Code of Civil Procedure, 1908 under Rule 2A of Order XXXIX, a litigant who commit breach of the undertaking or order of interim injunction of the Civil Court, can be penalised by ordering his detention in civil prison. In fact, such penal provisions are found in many statutes purely dealing with civil rights. For example, all Municipal laws include such penal provisions.
28. In view of Sub-Section (2) of Section 28 of the D.V Act, the Court before which an application under Sub-Section (1) of Section 12 is filed can adopt its own procedure for deciding the application. For example, if in such an application, reliefs are sought against certain persons no relief can be granted against the said persons under the D.V Act, the Court before which the application under Sub-Section (1) of Section 12 is pending always has a power to order deletion of such persons from the array of parties. The reason is that by virtue of Sub-Section (2) of Section 28, the Court is not bound to follow the procedure prescribed by Cr.P.C in every case. Under Section 26 of the D.V Act, reliefs under Sections 18, 19, 20, 21 and 22 can be sought in any legal proceedings before a Civil Court, a Family Court or a Criminal Court provided the legal proceedings affect the aggrieved person. Therefore, by way of illustration, we may point out that in a proceeding filed by a wife claiming maintenance under the Hindu Adoption and Maintenance Act, 1956 or any proceeding filed under the Hindu Marriage Act, 1955 before a Civil Court or a Family Court, she can seek relief under Sections 18 to 22 of the D.V Act as well.
29. Therefore, it is not possible to accept the submission that the power under Section 482 of the Cr.P.C. can be exercised for quashing an application under Sub-Section (1) of Section 12 seeking reliefs under Sections 17 to 22 of the D.V Act. An Application under Sub-Section (1) of Section 12 D.V. Act is not a proceeding under Cr.P.C though it can be filed before a Court exercising the powers of a Criminal Court. As held by the Apex Court, such proceedings are predominantly of civil nature filed for enforcing amalgamation of civil rights. Merely because the Application is maintainable before a Criminal Court, this Court cannot exercise the power under Section 482 of Cr.P.C. The Courts of the Magistrate is a forum for filing civil proceedings under several enactments. For example, under Section 169 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 an Appeal is provided to the Court of Magistrate against a demand for property tax. The proceedings of such statutory Appeals cannot be quashed by invoking Section 482. If such interference under Section 482 is made in an Application under Sub-Section (1) of Section 12 D.V. Act, it will defeat the very object of the D.V. Act of providing for a very speedy and effective remedy for enforcing amalgamation of civil rights. It will also defeat the provisions of Sub-Section (4) of Section 12. As held earlier, the Court before which such Application is made is not powerless to order the deletion of the parties against whom the reliefs under the D.V Act cannot be granted.
30. There are two penal provisions under the D.V Act. The first is Section 31 which provides that a breach of protection order, or of an interim protection order, under the D.V Act by the Respondent shall be an offence which shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. The said offence is made cognizable and non-bailable under Sub-Section (1) of Section 32. A special rule of evidence is prescribed by Sub-Section (1) of Section 32 which provides that upon the sole testimony of the aggrieved person, the Court may conclude that an offence under Sub-Section (1) of Section 31 has been committed. 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 of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. The procedure for taking cognizance of the said offence committed by the Protection Officer is laid down in Section 34. Needless to add that power under Section 482 of the Cr.P.C. can be always exercised for quashing the prosecutions under Section 31 or 33 of the D.V. Act.
31. Hence, there is no merit in the Petition. We may also clarify that no submissions were canvassed by the Petitioners for invoking Article 226 of the Constitution of India for quashing the proceedings. The Petitioners have argued only on the basis of the power of this Court under Section 482 of the Cr.P.C. Needless to add that the jurisdiction under Article 226 can be always invoked which can be always exercised subject to self imposed restraints considering the object of the D.V Act.
32. Hence, subject to what is observed above, we pass the following order:—
(i) The Writ Petition is rejected.