The Allahabad High Court in an important judgment has held that Section 482 of the Code of Criminal Procedure is maintainable against the order of a Judicial Magistrate or a Sessions Court under the Domestic Violence Act.
A Single Bench of Justice Arun Kumar Singh Deshwal heard an application under Section 482 filed by Devendra Agarwal and 3 others.
In all the connected applications either the proceedings under the Domestic Violence Act, 2005 (DV Act, 2005) or the orders passed therein are challenged or prayer is made to expedite the proceeding under the DV Act, 2005.
During the hearing Pankaj Saxena, AGA, has raised a preliminary objection that in view of the judgement of coordinate Bench of the Court in the case of Smt Suman Mishra vs State of UP and others; the application filed under Section 482 CrPC is not maintainable against the proceeding or orders passed under the DV Act, 2005.
First submission of Km Preete, counsel for the applicants, is that in the case of Suman Mishra (supra), the coordinate Bench has heavily relied upon the judgement of Kamatchi vs Laxmi Narayanan; (2022) 15 SCC 50 as well as the Full Bench judgement of Madras High Court in Arul Daniel vs Suganya; 2022 SCC OnLine Mad 5435 which was itself based on the judgement of Kamatchi (supra), though in the judgement of Kamatchi (supra) the issue of maintainability of application u/s 482 CrPC against the proceeding under the DV Act, 2005 was not before the Court and the only issue before the Apex Court was whether the period of limitation for taking cognizance as prescribed under Section 468 CrPC is applicable in the proceeding of the DV Act, 2005.
It is further submitted that while delivering the judgement in Kamatchi (supra), the Apex Court itself ignored the three Judge Bench judgment of the Apex Court in Satish Chander Ahuja vs. Sneha Ahuja; (2021) 1 SCC 414 in which the Apex Court observed that the proceeding under the DV Act, 2005 is akin to the proceeding under Section 125 CrPC as well as proceeding under Section 145 CrPC and the proceeding under the DV Act, 2005 is the proceeding which is to be governed by the CrPC.
It is also submitted that the CrPC has not been specifically excluded by any provision of the DV Act, 2005 and even Section 36 of the DV Act, 2005 provides that provisions of this Act is in addition to, and not in derogation of provisions of the CrPC.
Km Preete also relied upon a single Bench judgement of the Karnataka High Court in A Ramesh Babu and others vs Smt Dharani S; in which it is observed that the order passed under the DV Act, 2005 can be challenged through an application under Section 482 CrPC.
Pankaj Saxena, AGA for the State, submitted that the proceeding under the D.V. Act, 2005 is conducted as per the provision of the CrPC and an application under Section 482 CrPC is maintainable to prevent the abuse of process of any court. As per Section 27 of the DV Act, 2005, the court of Judicial Magistrate of Ist class will have the jurisdiction to decide the cases under the DV Act, 2005 and Section 2(i) of the DV Act, 2005 further provides that “Magistrate” means the Judicial Magistrate of first class, exercising jurisdiction under the CrPC.
Domestic violence is undoubtedly a human rights issue and a serious deterrent to development. The Vienna Accord of 1994, 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 that occurring within the family, the Court said.
The Court observed that,
From the above analysis, it is clear that for the execution of orders passed under Section 12 of the DV Act, 2005, procedure of CrPC (now BNSS) is adopted, therefore, all processes for the execution of orders passed under DV Act, 2005, are issued under the CrPC. Therefore, these processes/orders which includes a warrant for levying fines as well as a warrant of arrest would come under the first part of Section 482 CrPC, therefore, are amenable to Section 482 CrPC (now Section 528 BNS).
So far as the second part of Section 482 CrPC is concerned that is regarding to prevent the process of abuse of court. For that purpose the word “court” is necessary to explain.
It is not in dispute that the word “court” mentioned in the second part of Section 482 CrPC is “criminal court”. Criminal court has been defined under Section 6 of CrPC which includes courts of Session as well as Judicial Magistrates. As per Section 27 of the DV Act, 2005, the Judicial Magistrate of first class or Metropolitan Magistrate is competent to pass protection orders as well as other orders under Section 12 of the DV Act, 2005 and also try the offences under this Act. Similarly, appeals against orders passed under Section 12 of the DV Act, 2005 are heard by session courts under Section 29 of the DV Act, 2005.
Though proceeding as well as relief under the DV Act, 2005 except the violation of protection orders are civil in nature, Section 27 and 28 of the DV Act, 2005 itself authorize the criminal courts like Judicial Magistrates as well as court of session to conduct the proceeding under the DV Act, 2005 as per the provision of the CrPC.
Though Section 28(2) of the DV Act, 2005 authorizes the criminal court to lay down its own procedure, but this procedure is in addition to the procedure prescribed under CrPC for speedy and effective disposal of applications filed under Section 12 of the DV Act, 2005. Such power cannot be construed in a way that confers more power than intended by the Parliament so as to exclude the provision of CrPC forever. This reasoning also finds support from the Full Bench judgement of Bombay High Court in the case of Nandkishor Pralhad Vyawahare (supra). The Full Bench of the Bombay High Court also observed that the High Court can exercise its power under Section 482 CrPC in respect of the proceeding under the DV Act, 2005.
The Court further observed that,
The full Bench of the Court in the case of Dinesh Kumar Yadav (supra) also observed that the “session court” mentioned in Section 29 of the DV Act, 2005 is a criminal court and permitted to file criminal revision against the appellate order, before the High Court under Section 397 CrPC.
However in Suman Mishra (supra), the Court has heavily relied upon the judgement of Arul Daniel (supra) in which the definition of “criminal court” has been taken from Black’s Law Dictionary, ignoring the fact that the legislature is competent to deviate from the general meaning of “criminal court”, mentioned in the Black’s Law Dictionary and in the case of DV Act, 2005, the legislature knowingly designated criminal court to grant relief under the DV Act, 2005 by following the procedure of CrPC for the purpose of expeditious disposal of the applications filed under Section 12 of the DV Act, 2005.
However, it would be appropriate to mention that issuance of notice under Section 12 of the DV Act, 2005 is not like issuance of summons in complaint cases. Therefore, aforesaid notice can be recalled by the court on filing the objection by opposite party No 2 as observed by the Apex Court in the case of Kamatchi (supra) as well as by the Court in the case of Amardeep Sonkar (supra). Therefore, normally the Court should not interfere in exercise of power under Section 482 CrPC against the issuance of notice in the proceeding under Section 12 of the DV Act, 2005, otherwise it will defeat the basic object of the DV Act, 2005.
From the above analysis, the Court also observed that the application under Section 482 CrPC (now Section 528 BNSS) is maintainable against the orders and proceedings passed under the DV Act, 2005 to prevent the abuse of process of court and also to secure the ends of justice.
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A Single Bench of Justice Arun Kumar Singh Deshwal heard an application under Section 482 filed by Devendra Agarwal and 3 others.
In all the connected applications either the proceedings under the Domestic Violence Act, 2005 (DV Act, 2005) or the orders passed therein are challenged or prayer is made to expedite the proceeding under the DV Act, 2005.
During the hearing Pankaj Saxena, AGA, has raised a preliminary objection that in view of the judgement of coordinate Bench of the Court in the case of Smt Suman Mishra vs State of UP and others; the application filed under Section 482 CrPC is not maintainable against the proceeding or orders passed under the DV Act, 2005.
First submission of Km Preete, counsel for the applicants, is that in the case of Suman Mishra (supra), the coordinate Bench has heavily relied upon the judgement of Kamatchi vs Laxmi Narayanan; (2022) 15 SCC 50 as well as the Full Bench judgement of Madras High Court in Arul Daniel vs Suganya; 2022 SCC OnLine Mad 5435 which was itself based on the judgement of Kamatchi (supra), though in the judgement of Kamatchi (supra) the issue of maintainability of application u/s 482 CrPC against the proceeding under the DV Act, 2005 was not before the Court and the only issue before the Apex Court was whether the period of limitation for taking cognizance as prescribed under Section 468 CrPC is applicable in the proceeding of the DV Act, 2005.
It is further submitted that while delivering the judgement in Kamatchi (supra), the Apex Court itself ignored the three Judge Bench judgment of the Apex Court in Satish Chander Ahuja vs. Sneha Ahuja; (2021) 1 SCC 414 in which the Apex Court observed that the proceeding under the DV Act, 2005 is akin to the proceeding under Section 125 CrPC as well as proceeding under Section 145 CrPC and the proceeding under the DV Act, 2005 is the proceeding which is to be governed by the CrPC.
It is also submitted that the CrPC has not been specifically excluded by any provision of the DV Act, 2005 and even Section 36 of the DV Act, 2005 provides that provisions of this Act is in addition to, and not in derogation of provisions of the CrPC.
Km Preete also relied upon a single Bench judgement of the Karnataka High Court in A Ramesh Babu and others vs Smt Dharani S; in which it is observed that the order passed under the DV Act, 2005 can be challenged through an application under Section 482 CrPC.
Pankaj Saxena, AGA for the State, submitted that the proceeding under the D.V. Act, 2005 is conducted as per the provision of the CrPC and an application under Section 482 CrPC is maintainable to prevent the abuse of process of any court. As per Section 27 of the DV Act, 2005, the court of Judicial Magistrate of Ist class will have the jurisdiction to decide the cases under the DV Act, 2005 and Section 2(i) of the DV Act, 2005 further provides that “Magistrate” means the Judicial Magistrate of first class, exercising jurisdiction under the CrPC.
Domestic violence is undoubtedly a human rights issue and a serious deterrent to development. The Vienna Accord of 1994, 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 that occurring within the family, the Court said.
The Court observed that,
From the above analysis, it is clear that for the execution of orders passed under Section 12 of the DV Act, 2005, procedure of CrPC (now BNSS) is adopted, therefore, all processes for the execution of orders passed under DV Act, 2005, are issued under the CrPC. Therefore, these processes/orders which includes a warrant for levying fines as well as a warrant of arrest would come under the first part of Section 482 CrPC, therefore, are amenable to Section 482 CrPC (now Section 528 BNS).
So far as the second part of Section 482 CrPC is concerned that is regarding to prevent the process of abuse of court. For that purpose the word “court” is necessary to explain.
It is not in dispute that the word “court” mentioned in the second part of Section 482 CrPC is “criminal court”. Criminal court has been defined under Section 6 of CrPC which includes courts of Session as well as Judicial Magistrates. As per Section 27 of the DV Act, 2005, the Judicial Magistrate of first class or Metropolitan Magistrate is competent to pass protection orders as well as other orders under Section 12 of the DV Act, 2005 and also try the offences under this Act. Similarly, appeals against orders passed under Section 12 of the DV Act, 2005 are heard by session courts under Section 29 of the DV Act, 2005.
Though proceeding as well as relief under the DV Act, 2005 except the violation of protection orders are civil in nature, Section 27 and 28 of the DV Act, 2005 itself authorize the criminal courts like Judicial Magistrates as well as court of session to conduct the proceeding under the DV Act, 2005 as per the provision of the CrPC.
Though Section 28(2) of the DV Act, 2005 authorizes the criminal court to lay down its own procedure, but this procedure is in addition to the procedure prescribed under CrPC for speedy and effective disposal of applications filed under Section 12 of the DV Act, 2005. Such power cannot be construed in a way that confers more power than intended by the Parliament so as to exclude the provision of CrPC forever. This reasoning also finds support from the Full Bench judgement of Bombay High Court in the case of Nandkishor Pralhad Vyawahare (supra). The Full Bench of the Bombay High Court also observed that the High Court can exercise its power under Section 482 CrPC in respect of the proceeding under the DV Act, 2005.
The Court further observed that,
The full Bench of the Court in the case of Dinesh Kumar Yadav (supra) also observed that the “session court” mentioned in Section 29 of the DV Act, 2005 is a criminal court and permitted to file criminal revision against the appellate order, before the High Court under Section 397 CrPC.
However in Suman Mishra (supra), the Court has heavily relied upon the judgement of Arul Daniel (supra) in which the definition of “criminal court” has been taken from Black’s Law Dictionary, ignoring the fact that the legislature is competent to deviate from the general meaning of “criminal court”, mentioned in the Black’s Law Dictionary and in the case of DV Act, 2005, the legislature knowingly designated criminal court to grant relief under the DV Act, 2005 by following the procedure of CrPC for the purpose of expeditious disposal of the applications filed under Section 12 of the DV Act, 2005.
However, it would be appropriate to mention that issuance of notice under Section 12 of the DV Act, 2005 is not like issuance of summons in complaint cases. Therefore, aforesaid notice can be recalled by the court on filing the objection by opposite party No 2 as observed by the Apex Court in the case of Kamatchi (supra) as well as by the Court in the case of Amardeep Sonkar (supra). Therefore, normally the Court should not interfere in exercise of power under Section 482 CrPC against the issuance of notice in the proceeding under Section 12 of the DV Act, 2005, otherwise it will defeat the basic object of the DV Act, 2005.
From the above analysis, the Court also observed that the application under Section 482 CrPC (now Section 528 BNSS) is maintainable against the orders and proceedings passed under the DV Act, 2005 to prevent the abuse of process of court and also to secure the ends of justice.
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