The Court held that the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of civil as well as criminal, and the High Court can exercise its powers under Section 482 Code of Criminal Procedure, 1973.

ARUN D. UPADHYE, J.

1. The present reference is arising out of order dated 13/2/2015 passed by the learned Single Judge in Criminal Application No.578/2011.

2. It appears that during the course of hearing, it was brought to the notice of learned Judge that there are conflicting decisions of two separate Benches, on the point of applicability of the provisions of Section 482 of the Code of Criminal Procedure to the proceedings under the Protection of Women from Domestic Violence Act, 2005 (for short hereinafter referred to as “the D.V. Act, 2005”), rendered in the case of Mangesh Sawant Versus Minal Vijay Bhosale, reported at 2012 ALL MR (Cri.) 1113 (Coram : A.S. Oka, J.) and another in Criminal Writ Petition No. No.773/2014 (Narayan Thool and others Versus Sau. Mala Chandan Wani,) (Coram : S.B. Shukre, J.).

3. After hearing the parties, the learned Single Judge has made a reference to the Hon'ble Chief Justice for referring the matter to be decided by larger Bench in order to set right the controversy. Following questions were framed by the learned Single Judge :

“(i) Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings ?

(ii) Whether or not the High Court can exercise its powers 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 ?”

4. The matter was then placed before the Hon'ble Acting Chief Justice by the Registry and the Hon'ble Acting Chief Justice was pleased to direct to constitute the Division Bench presided over by the Hon'ble Shri Justice B.P. Dharmadhikari to hear and decide the reference made by the Court (Coram : A.R. Joshi) in Criminal Application No.578/2011. The above criminal application is thus before us.

5. On 7/8/2017 when the matter came up for hearing, Shri S.V. Sirpurkar, the learned Counsel for the applicant informs that the applicant Nandkishor is no more and sought time to file appropriate pursis on record. The matter was adjourned for further consideration on 17/8/2017. Thereafter, the matter came up before us for hearing on 18/8/2017. The learned Counsel for the applicant was not present. The learned Counsel Shri M.S. Sambhare for respondent was present and informed that applicant Nandkishor is no more. Learned Acting Public Prosecutor Shri A.S. Fulzele has sought time to assist the Court. Thereafter, the order was passed and Registry of this Court directed to publish a notice in the cause list pointing out the issue referred and requesting the Advocates willing to assist the Court to address the Court on the next date of hearing and the matter was postponed on 11/9/2017 as a last chance.

6. We have heard respective counsel for the parties at length. The learned Additional Public Prosecutor Shri Pathan has submitted that if the complaint is filed by the woman before the Magistrate under the provisions of the D.V. Act, 2005 the mechanism is provided under the Code of Criminal Procedure. The appellate remedy is also provided before the Sessions Court. If the order is passed by the Magistrate under the D.V. Act, 2005 and the same is disobeyed then the consequences are criminal though the proceedings are in the civil nature but Section 482 of the Code of Criminal Procedure could be invoked for quashing the proceedings on meritorious cases. He further submitted that if alternative remedy is not availed then the Court may refuse to entertain the application under Section 482 of the Code of Criminal Procedure.

7. Shri A. J. Thakkar, Shri A. S. Kinkhede, Shri R. R. Vyas, Shri Maheshwari and Shri R. D. Dhande, learned advocates assisted the Court with response to the notice published on the Notice Board. All these learned advocates have submitted that the provisions of Domestic Violence Act though the provisions are of civil nature but consequences are criminal one. They further submitted that the mechanism in the Act is provid