Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT
G.A. Sanap, J.
Daya W/o Jalendra Khare (Dead.
Deleted as per Courts’ order
dated 06.06.2020) and Ors. – Applicants
versus
State of Maharashtra and Ors. – Non-Applicants
Criminal Application [Apl] No.179 of 2020 with Criminal Application [Apl] No.24 of 2020 with Criminal Application [Apl] No.990 of 2019 with Criminal Writ Petition No.584 of 2022 with Criminal Writ Petition No.585 of 2022
Decided on 6.6.2023

Counsel for the Parties:
In APL No.179/2020
For the Applicants:Mr. S. V. Sirpurkar, Advocate
For the Non-Applicant No.1: Mr. S. A. Ashirgade, A.P.P.
For the Non-Applicant No.2:Mrs. D.I. Charlewar with Mr. I.S. Charlewar, Advocates
In APL No.24/2020
For the Applicants: None
For the Non-Applicants:Mr. Parvez W. Mirza, Advocate
In APL No.990/2019
For the Applicants:Mrs. Padma M. Chandekar, Advocate
For Non-Applicant No.1: Mr. S. A. Ashirgade, A.P.P.
For Non-Applicant No.2:Mr. Bhushan Dafle, Advocate
In Cri.W.P.Nos.584/22 & 585/2022
For the Petitioners:Ms. Ayushi Dangre, Advocate
For the Respondents: None

IMPORTANT POINT
Applications made under Section 482 of Cr.P.C. challenging the proceeding under Section 12 of the D.V. Act, are not maintainable.

Headnote:
Protection of Women from Domestic Violence Act, 2005 – Section 12 – Criminal Procedure Code, 1973 – Section 482 – Application seeking reliefs – Proceeding under Section 12 of D.V. Act cannot be equated with complaint filed under Code of Criminal Procedure – Proceeding under Section 482 of Cr.P.C. challenging proceeding under Section 12 of D.V. Act, is not maintainable – However, instead of dismissing applications, it would be appropriate to give an option to parties to withdraw the same with liberty to take recourse to available appropriate remedy – If parties do not avail such liberty, then applications can be ordered to be dismissed. (Paras 20 and 22)
Result: Applications disposed of with directions.

JUDGMENT

In all the above applications, filed under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”), with a prayer to quash and set aside the proceedings initiated by the non-applicant, claiming reliefs under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the D.V. Act” for short), the non-applicants have questioned the maintainability of the applications under Section 482 of the Cr.P.C.

2. Learned advocates appearing for the non-applicants in all the above matters, in order to canvas the issue of maintainability of the application under Section 482 of Cr.P.C., have placed heavy reliance on the decision of the Hon’ble Apex Court in the case of Kamatchi vs. Laxmi Narayanan, reported at AIR 2022 SC 2932. In view of challenge to the maintainability of the application under Section 482 of Cr.P.C., relying upon the decision in Kamatchi’s case (supra), I have heard learned advocates for the parties on this issue.

3. Elaborate narration of the facts of each case may not be necessary because this Court is considering the issue of maintainability of the applications under Section 482 of Cr.P.C. filed by the applicants before this Court. However, at the threshold it would be necessary to state that the non-applicant in each proceeding has initiated the proceeding under Section 12 of the D.V. Act seeking various reliefs provided under Sections 18 to 23 of the D.V. Act. In all the applications, the Courts concerned have issued the notices. On service of the notices, the applicants, without adopting any further proceeding before the Courts below, approached this Court by invoking Section 482 of the Cr.P.C. and prayed for quashing the said proceeding.

4. I have heard learned advocates for the applicants and learned advocates for the non-applicants. Perused the record and proceedings.

5. Learned advocates Mr. I.S. Charlewar and Shri P.W. Mirza appearing on behalf of the non-applicants advanced the submissions in their respective matters. Learned advocates appearing for the non- applicants in remaining matters have adopted the submissions advanced by Mr. Charlewar and Mr. Mirza.

6. The gist of the submissions advanced by learned advocates Mr. Charlewar and Mr. Mirza is as follows:

Hon’ble Apex Court in Kamatchi vs. Laxmi Narayanan’s case (supra) has considered the decision of learned Single Judge of Madras High Court in the case of Dr. P. Pathamanathan and others vs. Tmt. V. Monika and others, reported at 2021 SCC Online (Madras) 8731 and has approved the said decision. Hon’ble Apex Court in Kamatchi’s case (supra), has dealt with the arguments advanced by the learned advocate for the respondents in the said case by relying upon the decision in the case of Adalat Prasad vs. Ruplal Jindal, reported at (2004) 7 SCC 338 and held that the matter where the order of issuance of process is issued in a complaint on taking cognizance, stands on a different footing and cannot be compared with the proceeding under Section 12 of the D.V. Act, because the scope of notice under Section 12 of the D.V. Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. Hon’ble Apex Court in this case, rejected the submissions made by learned Senior Advocate appearing for the respondent to meet the arguments advanced by learned advocate for the appellant, challenging maintainability of application under Section 482 of Cr.P.C. by relying upon the decision in the case of Dr. P. Pathamnathan (supra). Hon’ble Apex Court, by relying upon the decision in the case of Adalat Prasad (supra), has held that considering the nature of the proceedings under the D.V. Act, the same cannot be challenged under Section 482 of the Cr.P.C.

7. It was pointed out that decision of Hon’ble Apex Court in Kamatchi’s case (supra) has been considered by the Full Bench of Madras High Court in the case of Arul Daniel and oth