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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Z.A. HAQ, J.
Jaiprakash Madhukarrao Sahurkar - Applicant
Versus
Sarika w/o Jaiprakash Sahurkar - Non-Applicant
Criminal Application (Apl) No. 497 of 2015
Decided on : 29-02-2016
The considerations in the prosecution under Section 498-A of the Penal Code are different from the considerations while dealing with an application under Section 12 of the Domestic Violence Act, 2005. "Cruelty" as explained/ contemplated by Section 498-A of the Penal Code is different from the "domestic violence" as defined by Section 3 of the Domestic Violence Act, 2005. There cannot be any dispute that the principles of res judicata are applicable to criminal proceedings and the maxim "res judicata provertitate accipitur" will apply to the proceedings under Section 12 of the Domestic Violence Act, 2005 as the proceedings are quasi-civil quasi-criminal in nature. However, the point which is required to be considered is whether the non-applicant can seek reliefs under Section 17, Section 19 and Section 20 of the Domestic Violence Act, 2005 on the basis of the same allegations, for which the applicant was prosecuted under Section 498-A and Section 323 of the Penal Code.
Apart from the fact that the applicant is acquitted of the charge of commission of offences punishable under Section 498-A and Section 323 of the Indian Penal Code because of insufficiency of evidence, the claim made by the applicant under Sections 17, 19 and 20 of the Domestic Violence Act, 2005 is not hit by the principles of res judicata and by the findings in the judgment given in Regular Criminal Case.
Key Points: - The proceedings under Section 12 of the Domestic Violence Act are quasi-civil quasi-criminal in nature and are to be considered separately from criminal proceedings under IPC, with potential applicability of res judicata but not necessarily bar on DV reliefs if based on differing pleadings. (!) (!) (!) - The court held that Section 300 CrPC will not apply to the DV Act proceedings in this case, and the DV reliefs can be adjudicated notwithstanding acquittal in IPC cases, as the standards and elements differ (domestic violence vs. cruelty). (!) (!) (!) (!) (!) (!) - The non-applicant’s reliefs under Sections 17, 19, and 20 of the DV Act can be pursued on the basis of allegations in the DV application, even if those allegations overlapped with those in IPC proceedings, provided the pleadings for DV reliefs are distinct. (!) (!) (!) - There is a distinction drawn between "cruelty" under IPC Section 498-A and "domestic violence" under DV Act Section 3, and economic/other forms of DV are not automatically offences under IPC. (!) (!) - The High Court affirmed dismissal of the application to quash DV proceedings, upholding the trial court’s decision under DV Act provisions. (!) (!)
Z.A. Haq, J.
1. Heard Shri A.L. Deshpande, Advocate for the applicant (husband) and Shri Kamlesh Dodani, Advocate for the non-applicant (wife).
2. The applicant has filed this application under Section 482 of the Code of Criminal Procedure and under Article 227 of the Constitution of India praying that the order passed by the learned Magistrate in Misc. Criminal Application No.153/2014 on the application (Exhibit No.35) on 18-05-2015 be set aside and the proceedings initiated by the non-applicant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Domestic Violence Act, 2005") be quashed.
3. The marriage of the applicant and non-applicant was solemnized on 21-02-1999. The applicant and non-applicant are having two sons, elder studying in 10th standard and younger in 7th standard. The differences between the parties arose in 2013 and the non-applicant had filed the complaint against the applicant with the Police Station on 02-12-2013 on the basis of which first information report was registered against the applicant for offences under Sections 498-A, 323 and 504 of the Indian Penal Code. The non-applicant filed complaint under Section 12 of the Domestic Violence Act, 2005 before the learned Magistrate, on 16-01-2014.
In the proceedings before the learned Magistrate, an attempt was made for amicable settlement and the parties arrived at amicable settlement on 26-03-2014 and the terms were reduced to writing.
In October 2014 the applicant filed H.M.P. No.347/2014 praying for decree for divorce under Section 13(1)(i-a) of the Hindu Marriage Act. The applicant had filed an application before the trial Court praying that the agreement (Tadjod Patrak) between the parties executed on 26-03-2014 be cancelled. This application was rejected by the trial Court.
4. The learned Magistrate conducted the trial initiated against the applicant for offences punishable under Sections 498-A, 323 and 504 of the Indian Penal Code and by the judgment dated 15-04-2015 acquitted the applicant. After the judgment is passed by the learned Magistrate acquitting the applicant, an application (Exhibit No.35) came to be filed by the applicant on 27-04-2015 in the proceedings under the Domestic Violence Act, 2005 praying that the proceedings be dismissed in view of the findings recorded by the learned Magistrate while acquitting the applicant. The learned trial Judge dismissed this application by the order dated 18-05-2015.
5. The substantive challenge is that the applicant having been acquitted of the charge under Sections 498-A and 323 of the Indian Penal Code, the proceedings initiated by the non-applicant under the provisions of the Domestic Violence Act, 2005 on the same allegations made by the non-applicant, are required to be dismissed. This challenge is raised relying on the provisions of Section 300 of the Code of Criminal Procedure.
Shri A.L. Deshpande, Advocate, referring to Section 28 of the Domestic Violence Act, 2005 and Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006, has submitted that the proceedings under Section 12 of the Domestic Violence Act, 2005 are governed by the provisions of the Code of Criminal Procedure, 1973 and the applications under Section 12 of the Domestic Violence Act, 2005 have to be dealt with in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973. It is submitted that there cannot be dispute about applicability of Section 300 of the Code of Criminal Procedure and the entitlement of the applicant for its benefit. The learned Advocate has submitted that the applicant having been tried by the Court of competent jurisdiction for the offences under Sections 498-A and 323 of the Indian Penal Code on the basis of allegations made by the non-applicant in her complaint and the applicant having been acquitted, the applicant cannot be compelled to undergo the rigour of trial under 12 of the Domestic Violence Act, 2005
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