Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Megh) 5

IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Shri Abhishek Agarwala & Anr. - Appellants
Versus
Smt. Komal Poddar - Respondent
Crl. Petn. No. 41 of 2022
Decided On : 01-03-2023

Advocates appeared:
Mr. K.Ch. Gautam, Advocate with Ms. C.B. Sawian, Advocate, for the Appellant; Mr. S. Sen. Advocate, for the Respondent.

The Domestic Violence Act proceedings are civil in nature, and the proper procedure involves issuing notices rather than summons, emphasizing the distinction from criminal jurisdiction.

Headnote:(A) Domestic Violence Act, 2005 - Section 12 - Criminal Procedure Code, 1973 - Section 202 - Quashing of criminal proceedings - Proceedings under Section 12 of the Domestic Violence Act are civil in nature, and Magistrate issued summons and bailable warrant improperly, constituting an abuse of process - The petitioner contends that the application lacks a factual or legal foundation, and the Trial Court failed to adhere to necessary procedures under the Code - 'The action of the learned Magistrate in the issuance of a warrant against the petitioner is uncalled for' (Paras 6, 10, 21).

(B) Procedure - The appropriate procedure for Domestic Violence applications involves issuance of notice not summons, indicating the lack of requirement to follow criminal procedure codes for civil proceedings under DV Act (Paras 31, 32).

(C) Jurisdiction - The court held that 'an application under Section 12 of the DV Act is not a complaint as defined under Section 2(d) of the Cr.P.C., but an application' (Para 24).

Facts of the case:
The petitioners sought to quash proceedings initiated by the respondent under Section 12 of the Domestic Violence Act, asserting the proceedings to be baseless and improperly commenced by the learned Magistrate, which led to unnecessary summoning and arrest warrants (Paras 1-4).

Findings of Court:
The proceedings under Section 12 of the DV Act are civil, and the learned Magistrate misapplied criminal procedures; thus, while the case lacks merit for quashing, it emphasizes proper procedure adherence (Paras 29-31).

Issues: The court addressed the procedural missteps involved in the initiating of civil proceedings under the Domestic Violence Act and whether the inherent powers under Section 482 Cr.P.C. could be invoked.

Ratio Decidendi: The court concluded that application under Section 12 does not constitute a criminal offence and should follow civil procedure, reinforcing that abuse of the court's process occurs when criminal jurisdiction is wrongly applied (Paras 27-28).

Result: The petition dismissed.

JUDGMENT

1. The petitioner has come before this Court with this petition under Section 482 Cr.PC with a prayer to quash the criminal proceedings in CR Case No. 110 (T) of 2021 under Section 12 of the DOMESTIC VIOLENCE ACT , (D V Act ), 2005 pending before the Court of the learned Judicial Magistrate First Class at Shillong.

2. Heard Mr. K.Ch. Gautam, learned counsel for the petitioner who has submitted that the petitioner and the respondent were married in accordance with their personal law. However, after the marriage, the relationship between the two ran into rough waters and the marriage failed leading to them living separately. The respondent thereafter filed a petition for dissolution of marriage before the Court of the Deputy Commissioner (Judicial), Shillong registered as (Mat) Div. Case No. 45(T) 2018, which case is still pending. Another case has also been filed by the respondent being CR Case No. 330 (S) 2019 pending before the court of the learned Judicial Magistrate First Class, Shillong.

3. The learned counsel has also submitted that the respondent, two years after filing of the said complaint case against the petitioner has approached the court of the Judicial Magistrate First Class, Shillong with an application under Section 12 of the DOMESTIC VIOLENCE ACT , claiming reliefs, provided under Section 18 , 19, 20 23 of the said Act.

4. The learned counsel then submits that there is no substance in the allegation made by the respondent in the said petition under Section 12 and even on merits, the case of the respondent will surely fail as the same was filed without any factual or legal foundation.

5. However, the main ground raised by the petitioner while assailing the impugned proceedings is that the Trial Court has approached the case without any application of mind and has exercised criminal jurisdiction where none is required.

6. In this regard the learned counsel has submitted that proceedings under Section 12 of the DOMESTIC VIOLENCE ACT are civil in nature and the procedure to be adopted by the court on receipt of an application filed by the aggrieved party is firstly to cause issue of notice upon the respondent. However, the learned Magistrate has instead issued summons upon the petitioner to appear before the court and in course of proceedings, has also issued a bailable warrant of arrest.

7. The learned counsel has submitted that this is contrary to the procedure that is envisaged under the DOMESTIC VIOLENCE ACT and even if the said application is, according to the court, deemed to be a complaint, the learned Magistrate has failed to take recourse to the provisions of Section 202 Cr.PC to postpone the issue of process against the petitioner, who apparently is residing outside the jurisdiction of the court and as submitted above, has even caused issue of a bailable warrant of arrest against the petitioner on his being absent on the date fixed for the case.

8. This is clearly an abuse of the process of the court as the learned Magistrate has exercised powers without jurisdiction and accordingly, the proceedings is liable to be set aside and quashed by this Court on this ground alone.

9. In support of his case, the learned counsel has cited the following cases:-

(i) State of Haryana v. Bhajan Lal Ors. (1992) Supp.(1) 335 para 102(7).

(ii) Davindra v. State of UP; (2009) 7 SCC 495, para 24.

(iii) Pepsi Food Ltd. v. Special Judicial Magistrate; (1998) 5 SCC 749, para 28.

10. Per contra, Mr. S. Sen, learned counsel for the respondent has submitted that in response to the argument raised by the petitioner, seeking quashing of the proceedings before the court of the learned Judicial Magistrate First Class, Shillong, on the ground that non-compliance of the provisions of Section 202 Cr.PC has vitiated the proceedings, the response of the respondent would be that the procedure laid down under chapter XV of the CRIMINAL PROCEDURE CODE does not apply to proceedings under the DOMESTIC VIOLENCE ACT .

11. It is also submitted