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MADRAS HIGH COURT
N. Anand Venkatesh, J.
Dr. P. Pathmanathan and Ors. —Petitioners
versus
Tmt. V. Monica and Anr. —Respondents
Crl.OP.Nos.28458, 16411, 33643 of 2019, Crl.OP.Nos.16389, 16450, 17156, 19918, 20434 of 2020 and Crl.OP.Nos.45, 73, 138, 184, 191, 213, 216, 233, 243, 332 and 349 of 2021 and Crl.MP.Nos.8239, 8240, 18568, 18569, 15188, 15189 of 2019, 6300, 6302, 6345, 6344, 6641, 8174, 8562 of 2020, 31, 32, 38, 39, 57, 70, 74, 99, 76, 78, 96, 95, 97, 98, 110, 113, 114, 171 and 172 of 2021
Decided on 18.1.2021
(A) Protection of Women from Domestic Violence Act, 2005—Section 12—Criminal Procedure Code, 1973—Section 482—Jurisdiction of High Court to quash complaint under Section 12 of Domestic Violence Act, 2005—Nature of rights that were protected and enforced under the Act were purely civil in nature—However, considering forum which was dealing with such applications and procedure adopted, a criminal colour has been unwittingly given to these proceedings—Faulty understanding of nature of proceedings has also given rise to a tendency to misuse these proceedings as a weapon of harassment against parties who are unrelated to proceedings by making them stand before a Magistrate like accused persons—It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing proceedings under Section 12 of D.V. Act—This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring situation under control by laying down certain guidelines for disposal of applications under Section 12 of D.V Act. (Paras 3 and 4)
(B) Protection of Women from Domestic Violence Act, 2005—Section 12—Criminal Procedure Code, 1973—Section 482—Jurisdiction of High Court to quash complaint under Section 12 of Domestic Violence Act, 2005—Relief sought for under Chapter IV of D.V. Act is not in nature of a formal accusation like in a criminal case and person against whom such a relief is sought for, is not an accused before Magistrate—Amalgamation of civil and criminal jurisdictions in Magistrate does not, however, destroy nature and identity of these two separate and distinct jurisdictions—Magistrate dealing with application under Section 12 of Act is not called upon to take action for commission of an offence—Stage for issuance of process contemplated under Section 204, Cr.P.C has no application to a proceeding under D.V Act as Magistrate, in an application under Section 12 of D.V Act, is not taking cognizance of any offence but is only dealing with an application for civil reliefs—Procedure set out in D.V Act and Rules makes a conscious deviation from traditional modes of a criminal court taking cognizance, issuing process and then trying accused under provisions of Cr.P.C. save in case of offences under Section 31 and 33 of Act—Application of Cr.P.C. to an application under Section 12 is residuary in nature by virtue of mandate of Section 28(1) of D.V Act—Fact that a Magistrate may, at a subsequent stage under Chapter V try an offence under Section 31 of Act for breach of an order under Sections 18 or 23 of Act does not render a proceeding under Chapter IV of Act as one before a criminal court. (Paras 9, 13, 14,19, 21, 24 and 31)
(C) Protection of Women from Domestic Violence Act, 2005—Section 12—Criminal Procedure Code, 1973—Section 482—Jurisdiction of High Court to quash complaint under Section 12 of Domestic Violence Act, 2005—Nature of proceeding before Magistrate under Chapter IV of D.V Act is purely civil in nature—As jurisdiction exercised by Magistrate does not partake character of a criminal proceeding, Magistrate cannot be said to be exercising criminal jurisdiction as a Criminal Court while exercising jurisdiction under Chapter IV of D.V Act—Appeal is a continuation of original proceeding—Sessions Judge exercising powers under Section 29 of D.V Act would have the same powers as a Magistrate while dealing with application under Section 12 of Act—Petition under Section 482, Cr.P.C would lie only against an order of a criminal court—Petition under Section 482, Cr.P.C would be maintainable only if order complained of is passed by a criminal Court or by a Court in exercise of powers under the Cr.P.C.—Quashing an application under Section 12 of D.V Act does not fall in either category—However, Magistrate exercising jurisdiction under Chapter IV of D.V Act, is certainly a subordinate Court for the purposes of Article 227, and petition under Article 227 of Constitution would still be available challenging proceedings under Chapter IV of D.V Act, in an appropriate case. (Paras 32, 36, 40, 41 and 42)
(D) Criminal Procedure Code, 1973—Section 482—Inherent power—Section 482, Cr.P.C merely saves inherent power of High Court to make such orders as may be necessary to a) give effect to an order under this Code; or b) prevent abuse of process of any Court; or c) otherwise secure ends of justice—This section has not given any new power to High Court but has merely preserved power inherently possessed by every High Court as a superior Court of record—As a highest Court of Justice in State, High Court exercises a visitorial or supervisory jurisdiction over all Courts in State—However, plenitude of inherent power under Section 482, Cr.P.C does not extend to annul proceedings which are not before a Criminal Court—To constitute a criminal court, it is not sufficient that Court is one of Courts enumerated under Section 6 Cr.P.C.—It is also necessary that proceedings before it are criminal in character—If proceeding before Court is civil in nature, then it cannot be said that Court is a Criminal Court exercising criminal jurisdiction for the purposes of Section 482, Cr.P.C. (Para 44)
(E) Protection of Women from Domestic Violence Act, 2005—Section 12—Criminal Procedure Code, 1973—Section 482—Jurisdiction of High Court to quash complaint under Section 12 of Domestic Violence Act, 2005—An application under Section 12 of D.V. Act, is not a complaint under Section 2(d) of Cr.P.C.—Consequently, procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under D.V Act—Magistrate cannot treat an application under D.V Act as though it is a complaint case under Cr.P.C.—Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of D.V Act—Instead, Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to D.V Rules, 2006—Service of such notice shall be in manner prescribed under Section 13 of Act and Rule 12 (2) of D.V Rules, and shall be accompanied by a copy of petition and affidavit—Personal appearance of respondent(s) shall not be ordinarily insisted upon, if parties are effectively represented through a counsel—It is not mandatory for Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of Act. (Para 52)
Result: Petitions dismissed.
ORDER
N. Anand Venkatesh, J.—The issue that falls for consideration in these batch of cases relates to the jurisdiction of the High Court to quash a complaint under Section 12 of the Domestic Violence Act, 2005 (hereinafter referred to as “D.V. Act” or “the Act”) in exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” or “the Code”).
2. This Court had directed the Registry to put up a number of cases filed between 2017 and 2020, and pending, for quashing applications under Section 12 of the D.V Act. This Court was surprised to learn that over 1000 such cases were pending. The D.V Act endeavors the Magistrate to dispose an application filed under Section 12 (1) within 60 days from the date of its first hearing. However, here is a distressing scenario where the proceedings, in a majority of the cases, have come to a grinding halt without any progress for more than 3 years on account of the pendency of the petitions on the file of this Court.
3. Upon a close reading of the D.V Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal color has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act.
4. On the flip side, this faulty understanding of the nature of the proceedings has also given rise to a tendency to misuse these proceedings as a weapon of harassment against parties who are unrelated to the proceedings by making them stand before a Magistrate like accused persons. It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act. This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring the situation under control by laying down certain guidelines for the disposal of the applications under Section 12 of the D.V Act.
5. Considering the importance of the issue involved, this Court sought for and obtained the assistance of the counsel appearing on behalf of the petitioners, and the senior members of the Bar who have made their respective submissions. This Court was provided with able assistance by the respective learned counsel in order to enable this Court to fully answer the various issues that have cropped up in these cases.
6. A brief excurse into the provisions of the D.V. Act is necessary to set the discussion in context. Domestic violence against women is a human rights and social rights issue that has engaged the attention of law and policy makers at global and national levels. The genesis of the D.V Act can be traced to the General Recommendation XII (1989) passed by the U.N Committee on the Elimination of Discrimination against Women. Taking note of Articles 2, 5, 11, 12 and 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), it was unanimously resolved by the Committee that State parties must put in place appropriate legislations to protect women against violence of any kind occurring within the family, at the work place or in any other area of social life. India ratified the CEDAW in 1993. However, a legislation to implement General Recommendation XII had to await another 12 years.
7. On account of the collective efforts of several national and international women’s organisations and the National Commission for Women, the Protection from Domestic Violence Bill, 2002 was tabled in the Lok Sabha and referred to a Department Standing Committee of the Ministry of Human Resource Development in the Rajya Sabha. The Committee submitted its 124th Report on the Bill (2002) which aimed at “providing a remedy under the
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