TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 2140
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.... question of applicability of the provision of Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") to a proceeding initiated under Section 12 of the D.V. Act seeking various reliefs as provided under Sections 18 to 22 of the D.V. Act. The conflicting views taken by two different benches of this Court, that were brought to the notice of the learned Judge arose from the cases of Mangesh Sawant v. Minal Vijay Bhosale - (2012 ALL MR (Cri.) 1113 (Coram : A.S. Oka, J.) and Narayan Thool and others v. Mala Chandan Wani in Criminal Writ Petition No. 773/2014 (Coram: S.B. Shukre, J.). The view in the case of Mangesh Sawant was that the proceeding under Section 12 of the D.V. Act being not criminal but civil, power under Section 482 of Cr.P.C. could not be invoked for quashing of the proceeding and whereas the view taken in the case of Narayan Thool was quite opposite holding that such power of quashing of proceeding under Section 482 of Cr.P.C. was available. In view of the conflict of views, the learned Judge made a reference to the Hon'ble the Chief Justice for constituting a larger bench for resolution of the conflict of views. While making the reference, the learned ....
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....ji v. Kunapareddy Swarna Kumari (2016) 1 SCC 774. 6. Having taken due note of the view taken by the coordinate bench in the case of Sukumar Gandhi, the Division Bench hearing the reference concluded that the principle of stare decisis required that a view holding the field need not be disturbed only because another view was possible, unless there was a prepondering necessity dictated by the demands of the justice. The Division Bench then examined some more decisions, one of them was rendered by Division Bench of the Gujarat High Court in Suo Motu v. Ushaben Kishorbhai Mistry - (2016) ALL MR (Cri) (Jou) 293, in which a view was taken that when the provisions of Cr.P.C. were made applicable, Section 482 of Cr.P.C. power would also be available for quashing of a proceeding under Section 12(1) of the D.V. Act. The Division Bench hearing the reference also considered the judgment of the Hon'ble Apex Court in the case of Kunapareddy (supra) and various provisions of the D.V. Act. It found that the answers to the questions under reference made to it, could not be properly given unless a definitive view was taken on the points as to whether or not the nature of proceedings, civil or q....
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....he D.V. Act, in order to seek various reliefs under the Act as are available under Sections 18 to 22 of the D.V. Act, is civil in nature, though, the procedure, that has to be generally followed for taking the proceeding to its logical end, is criminal. 9. Shri Amit Kinkhede, learned Counsel for the applicant submits that whatever may be the nature of proceeding, the scheme of the D.V. Act is such that the conduct of the proceeding is generally by following a criminal procedure, as provided under the Cr.P.C. To demonstrate, he refers to various provisions of the D.V. Act and rules framed thereunder. Provisions pointed out by him are such as; Section 28 of the D.V. Act providing for applicability of the provisions of Cr.P.C. subject to the power of the Court under sub-section (2) Section 28 of Cr.P.C. to lay down it's own procedure in a given case, Sections 31 & 33 making breach of a protection order or an interim protection order and failure of the Protection Officer to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause as punishable offences, Section 32 making the offence under Section 31(1) as cognizable and non-bailable a....
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....ion 28 of the D.V. Act that the provisions of Cr.P.C. are applicable to a proceeding under 12(1), no one can say that the intention of the legislature is different and that it intends to only selectively apply the provisions of Cr.P.C. to a proceeding initiated for punishing the persons found to be guilty of the offences under Sections 31 and 33 of the D.V. Act and not to the other proceeding brought in for seeking various remedies provided under Sections 18 to 22 of the D.V. Act. He submits that applicability of Cr.P.C. cannot be doubted because Section 28(1) of the D.V. Act says so. As regards the discretion of the Court to lay down it's own procedure under Section 28(2) of the D.V. Act, he submits that the power is confined to only a particular case wherein it could be invoked, if it is found by the Magistrate that following of the procedure prescribed under the Cr.P.C. is likely to result in inconvenience, delay or injustice. He submits that this provision of law would make it clear that nature of proceeding is immaterial. 12. Shri Sahil Dewani, learned Counsel draws our attention to Section 29 of the D.V. Act and submits that remedy of appeal to the Court of Sessions agai....
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....g jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place. Section 12(1) allows making of an application to seek these reliefs by the affected woman herself or on her behalf by the Protection Officer or any other person. Any order made by the Magistrate is appealable, in terms of Section 29, before the Court of Session and not before the Court of District Judge, within 30 days of the receipt of the order by the aggrieved person or the respondent. The expression "Court of Session" has not been defined in the D.V. Act. But, Section 28 of the Act lays down that all proceedings under the Act, subject to exceptions provided in the Section, shall be governed by the Cr.P.C. So, the expression "Court of Session" would have to be taken, with the aid of Section 28 of the D.V. Act, as one class of Criminal Court from out of several classes contemplated under Section 6 and established in terms of Section 9 of the Cr.P.C. 17. Prescribing a Judicial Magistrate of the first class as an authority competent to deal with such an applic....
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....Judicial Magistrate, First Class. Silence of the legislature on this issue is likely to create difficulty in selection of the forum for fling of an appeal against any order passed in respect of the reliefs provided under the D.V. Act by a person not satisfied with the order. The reason being that Section 29 of the D.V. Act, which creates right of appeal, mandates that such forum would be the Court of Session and it is possible in a given case that the order granting or rejecting relief may have been passed by the judicial forum equal in rank or designation as the Court of Session. This issue, however, is not the subject matter of reference and, therefore, it need not detain us here anymore. But, the fact remains that the nature of provisions made in the D.V. Act is such that it poses some difficulty in determining the character of the proceedings taken under the Act. 19. In such cases, the Hon'ble Supreme Court has paved the way for finding out the nature of a proceeding. It has held that an examination of the nature of the rights created, the reliefs provided and the kinds of final order that could be passed, would be sufficient indices of the nature of a proceeding. 20. In ....
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.... prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts is not exhausted by classifying the proceedings as civil and criminal. There are certain proceedings which may be regarded as neither civil nor criminal. For instance, proceeding for contempt of Court, and for exercise of disciplinary jurisdiction against lawyers or other professionals, such as Chartered Accountants may not fall within the classification of proceedings, civil or criminal. But there is no warrant for the view that from the category of civil proceedings, it was intended to exclude proceedings relating to or which seek relief against enforcement of taxation laws of the State. The primary object of a taxation statute is to collect revenue for the governance of the State or for providing specific services and such laws directly affect the civil rights of the taxpayer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits impos....
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....tion (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 that occurring within the family. 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 498-A 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." 23. The Statement of Objects and Reasons enlightens us on the legislative mind. The Parliament treats domestic violence as a human rights issue and considers that it is a serious deterrent to the development an....
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....रतास्तु रन पुज्यंन्ते सर्वास्तत्रफलः क्रियाःते।।" or where women are revered, there Gods reside, but where they are not, all actions bear no fruits. 25. Coming to modern times, we have an array of luminaries who fought and worked for emancipation of women in India. Making a reference to all of them is not possible here. Suffice it to say, from Mahatma Jyotiba Phule through Bharat Ratna Dr. Babasaheb Ambedkar, Pandit Jawaharlal Nehru to Dr. A.P.J. Abdul Kalam, all have seen that no human society can ever make progress unless it's women are treated with dignity and honour that they deserve. At international level too, a global consensus on the need for protecting women against all kinds of violence has emerged amongst the nations, which is seen in the Vienna Accord, 1994, the Beijing Declaration and the Platform for Action (1995) and the United Nations Committee on Convention on Elimination of All Forms of Discriminatio....
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....tions 14, 15 and 16 are about counselling, assistance of welfare expert and proceedings to be held in camera. Section 17 confers upon every woman in a domestic relationship the right to reside in a shared household. The reliefs available to an aggrieved person are enumerated in Sections 18 to 22. Under Section 18, a protection order prohibiting the respondent from committing or abetting commission of any act of domestic violence and so on, can be obtained. Under Section 19, relief in the nature of residence order can be sought. Monetary relief can be obtained under Section 20. An order for obtaining temporary custody of any child can be sought by the aggrieved woman under Section 21. Compensation order can also be obtained under Section 22. Section 23 invests a magistrate with power to grant an interim and ex parte order in respect of various reliefs that could be sought under the D.V. Act. Sections 24 and 25 deal with supplying the aggrieved person copies of orders free of cost, duration and alteration of orders. Section 26 makes it clear that any relief available under the D.V. Act can also be sought in any other legal proceeding before a Civil Court, Family Court or a Criminal C....
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...., the Metropolitan Magistrate in Mumbai metropolitan region, as defined under Section 2(i), for seeking various reliefs as provided under Sections 18, 19, 20, 21, and 22. These reliefs, we cannot ignore, are for redressing breach of civil rights and have a civil favour, not known to criminal law. Besides, it is not the Judicial Magistrate First Class or the Metropolitan Magistrate, as the case may be, who alone is competent to decide an application under Section 12(1). Even a Civil Court or a Family Court or any other Criminal Court conducting any legal proceeding which has the power under Section 26 to do so. This would mean, just to give example, it is possible to obtain these reliefs even in a petition filed for divorce between the same parties under the provisions of Hindu Marriage Act, 1955. This should leave no doubt in our mind that the rights created and remedies provided for breaches thereof in the D.V. Act have been viewed by the Parliament as basically of civil nature and, therefore, by specific provisions, authority has been conferred even upon the civil courts, in addition to criminal courts, under Section 26 of the Act, to deal with an application filed for seeking va....
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....her description for a term which may extend to one year or fine up to Rs. 25000/- or with both. This offence has been made cognizable and bailable under Section 32. Section 33 prescribes one more offence and it provides that any failure or refusal to discharge duty as directed by the Magistrate in the protection order without any sufficient cause on the part of the protection officer would be an offence punishable with imprisonment of either description for a term which may extend to one year or with fine of amount up to Rs. 20,000/- or with both. However, cognizance of the offence under Section 33 can be taken only upon a complaint filed with the previous sanction of the State Government or its duly authorized officer. Rule 6(5) of the Rules, 2006 framed by the Central Government in exercise of it's rule making power under Section 37 of the D.V. Act lays down that applications under Section 12 shall be dealt with and the orders enforced in the same manner as prescribed under Section 125 of the Cr.P.C. 35. Applicability of provisions of the Cr.P.C. and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil r....
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....he provisions contained in Chapter XIX of the Code of Criminal Procedure comprising Sections 125 to 128 which deal with three questions - (i) adjudication as regards the liability to pay the monthly allowance to the neglected wife and children etc., (ii) the execution of order for recovery of monthly allowance and (iii) the mode of an execution of order for monthly allowance, held that one of the modes for enforcing the order of maintenance allowance is to impose sentence of jail on the person liable to pay the monthly allowance. However, it has clarified that sentencing a person to jail is a "mode of enforcement" and it is not a "mode of satisfaction" of the liability. The provisions of Sections 31 and 33 create distinct offences resulting from commission of the acts or omissions described therein for which punishments are prescribed. Therefore, the offences could not be viewed as mere "modes of enforcement", rather, they would be adding the necessary power and punch to the remedy provided under Section 18 of the D.V. Act by leaving an impression in the mind of the disobedient or deviant that his disobedience or deviance may land him in jail and/or his being made to suffer consequ....
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....e Division Bench of this Court in Sukumar Gandhi (supra) on the first question under reference and formulate our conclusion as under : Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly of civil nature and it is only when there is a breach of the protection order as is contemplated under Section 31 and failure or refusal to discharge duty without any sufficient cause by the protection officer as contemplated under Section 33, the proceedings assume the character of criminality. The first question is answered accordingly. 41. Now, we take up for answer the second question which is reproduced again, for convenience, thus : : (ii) Whether or not the High Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005 ? 42. We have seen that the nature of proceeding initiated under the D.V. Act is predominantly of civil nature. But, can we say, only because the proceedings have a dominant civil favour, the applicability of the provisions of Cr.P.C. to the proceedings under the D.V. Act, is excluded or to be precise inherent ....
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....s not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in Rule 40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act." 45. It would be clear now that what is to be seen first in the provision of law under consideration is as to whether or not there is any ambiguity in the language used. If there is none, the presumption would be that Parliament speaks it's mind through the language used and there is no need to look somewhere else to discover the intention or meaning. The literal rule of construction is about what the law says and means, as understood from the plain language of the law and not what ....
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....tion under Section 12 and enforcing the orders passed on it; Section 12(4) mandating fixing of the first date of hearing ordinarily not beyond three days from the date of receipt of the application; Section 13(1) directing the service of notice through the Protection Officer and so on and so forth. Barring such specific procedural requirements, however, the provisions of the Cr.P.C. have been made applicable under Section 28(1) of the D.V. Act. This applicability, it is seen from the plain and clear language of this provision, is general and omnibus. It unequivocally speaks of the intention of the Parliament to generally apply provisions of the Cr.P.C. to the proceedings under or arising from the D.V. Act, subject to exceptions specifically indicated in Section 28. It appears that such criminal procedure is generally applied with the avowed purpose of giving teeth to the remedies provided under the civil law. 49. We have seen earlier that Parliament's intention was to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring especially within the family and for matters connected therewith o....
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....d in a way as to confer more power than intended by the Parliament so as to exclude the applicability of the provisions of Cr.P.C., forever and for all times to come after the Court has disposed of such a proceeding. If this enabling section is to be understood, even when it is not put to use, as excluding criminal remedies and measures made available under the D.V. Act to a party aggrieved by the decision of the Court, as for example, remedy of criminal revision under Section 397 or invocation of High Courts' inherent power under Section 482 of Cr.P.C, we would be doing violence to the language of entire provision of Section 28 of the D.V. Act and putting into the mouth of the Parliament something not intended by it, which is not permissible under the settled rules of construction. 51. The purpose of the power given to the Court under Section 28(2) of the D.V. Act is only to provide a powerful tool in the hands of the Court to provide effective and speedy remedy to the aggrieved person. Such power given to the Court is likely to come in handy for the Court dealing with Section 12 D.V. Act application in a given case and especially the Courts contemplated under Section 26 of t....
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.... Parliament as expressed by plain and clear language of the Section, which would have it's last word. We have already held that Section 28 of the D.V. Act announces clearly and without any ambiguity the intention of the Parliament to apply the criminal procedure generally subject to the exceptions given under the Act. So, the inherent power of the High Court under Section 482 of Cr.P.C., subject to the self-imposed restrictions including the factor of availability of equally efficacious alternate remedy under Section 29 of the D.V. Act, would be available for redressal of the grievances of the party arising from the orders passed in proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and also in respect of the offence under Section 31 of the D.V. Act. 54. We are also fortified in our view by the opinion expressed by the Division Bench of the Gujarat High Court in the case of Ushaben (supra), wherein it is observed that a proposition that because the proceedings are of civil nature, the Cr.P.C. may not apply, is too general a proposition to be supported in a case where the Parliament, by express provision, has applied the provisions of Cr.P.C. to the proceedings under the ....
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....mainly being of civil nature, no resort to Section 482 of Cr.P.C. could be taken for the purpose of seeking their quashment. It was of the view that if such an inference is made, it would defeat the very object of the D.V. Act of providing for a speedy and effective remedy for enforcing an amalgamation of civil rights. Accordingly, it held that barring the prosecutions initiated for trying of the offences prescribed under the Act, inherent power of the High Court under Section 482 of Cr.P.C. could not be invoked for quashing of the proceedings. In view of the discussion made and the conclusions drawn in the earlier paragraphs, it is not possible for us to agree with the view so taken by the Division Bench of this Court and we declare it to be an incorrect view. If we accept the opinion of the Division Bench, the result, in our view, would be quite opposite to what has been thought of by it. That apart, making Section 482 of Cr.P.C. as not applicable may also amount to doing harm to plain and clear language of Section 28 of the D.V. Act, which expresses unequivocally and clearly the intention of the Parliament, thereby excluding the possibility of resorting to external aids and othe....