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2024 Supreme(Online)(KAR) 1336
HIGH COURT OF KARNATAKA
M.NAGAPRASANNA, J
SMT. B.PRAMEELA W/O S.KRISHNA D/O BORALINGAIAH AGED ABOUT 37 YEARS – Appellant
Versus
SRI. S.KRISHNA S/O LATE SHIVARAMAIAH AGED ABOUT 42 YEARS – Respondent
CRIMINAL PETITION NO. 9198 OF 2023
For the Appellants/Petitioners: R.P.SOMASHEKHARAIAH
For the Respondents: B.K.CHANDAN
The High Court cannot entertain petitions under Section 482 of the Cr.P.C. when an effective alternative remedy exists under the Protection of Women from Domestic Violence Act, 2005.
Headnote:(A) Protection of Women from Domestic Violence Act, 2005 - Sections 23(2) and 29 - Maintainability of petition under Section 482 of Cr.P.C. - This Court has held that while the proceedings under the Act are predominantly civil in nature, the provisions of the Criminal Procedure Code apply unless expressly excluded by the Act itself. The petitioners challenged an order seeking modification under Section 23(2), where the Court emphasized the need for an alternative statutory remedy under Section 29 instead of the High Court's intervention under Section 482. (Paras 50, 54, 56)
(B) Criminal Procedure Code, 1973 - Section 482 - Inherent powers of the High Court - The inherent power should be exercised to prevent abuse of the process of law and should not be invoked when an alternative remedy is available. (Paras 48, 58)
Facts of the case:
The petitioners questioned an order passed by the Metropolitan Magistrate, which partly allowed their application under Section 23(2) of the D.V. Act. The Court found that the petitioners had an effective alternative remedy available under Section 29 of the Act.
Findings of Court:
The court declined to entertain the petition, reiterating the necessity of exhausting available legal remedies within the structure of the D.V. Act.
Issues: The key issue was whether the petitioners could approach the High Court under Section 482 when an alternate remedy existed.
Ratio Decidendi: The High Court affirmed that inherent powers can only be invoked to prevent abuse of process and should respect statutory alternatives.
Result: Petition disposed.
| Table of Content |
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| 1. petitioners questioned an order under d.v. act. (Para 1 , 2) |
| 2. discussion on maintainability and alternative remedy. (Para 3) |
ORDER
The petitioners are before this Court calling in question an order dated 29.12.2022, passed by the Metropolitan Magistrate, Traffic Court – III, Bengaluru, on an application filed by the petitioners under Section 23 (2) of the Protection of Women from Domestic Violence Act, 2005 , in Crl.Misc.No.93/2022, partly allowing the said application.
2. Heard Sri R.P.Somashekharaiah, learned counsel for petitioners and Sri B.K.Chandan, learned counsel for respondent Nos.2 to 4.
3. The issue in the lis need not detain this Court for long or delve deep into the matter, as this Court has dealt with an identical issue of maintainability of this petition, which calls in question the order on an application filed under Section 23 (2) of the Act of the concerned Court, as the petitioners have an alternative, efficacious and statutory remedy available before the Sessions Court under Section 29 of the Act, as is held in Crl.P.No.3578/2022 in the case of A.RAMESH BABU vs. DHARANI S.,disposed on 28.06.2024. It is held as follows:
“10. A Full Bench of the High Court of Bombay, in the case of NANDKISHOR PRALHAD VYAWAHARE v. MANGALA1 in which the issue was whether the High Court can exercise the power under Section 482 of the Cr.P.C. in respect of proceedings under the Act, answers it after considering the entire spectrum of the Act and the precedents then obtaining as follows:
“…. …. ….
42. We have seen that the nature of proceeding initiated under the D.V. Act is predominantly of civil nature. But, can we say, only because the proceedings have a dominant civil flavour, the applicability of the provisions of Criminal Procedure Code to the proceedings under the D.V. Act, is excluded or to be precise inherent power of the High Court under section 482 of Criminal Procedure Code is not available to deal appropriately with these proceedings, in spite of express application of the provisions of Criminal Procedure Code by the Parliament as provided under section 28 of the D.V. Act? In other words - Would the nature of the proceedings decide the fate of section 28 or the intention of the Parliament as expressed in section 28 of the D.V. Act would? To find out an answer, as a first step, we must look into the express language of the provision of section 28 of the D.V. Act and then if required, we may look for external aids, if any, as dictated to us by the settled principles of statutory interpretation.
… … …
50. Coming to the second part of section 28 of the D.V. Act, which is in sub-section (2), our view is no different than what we hold for the other exceptions we have expressed our mind on. This provision also stands as an exception to the generality of the applicability of the provisions of Criminal Procedure Code. It only enables the Court to lay down its own procedure, notwithstanding the general applicability of the provisions of Criminal Procedure Code to all the proceedings under the D.V. Act, as laid down in section 28(1). As it is only an enabling provision of law, it may or may not be put to use by the Court in a given case and everything will depend upon fact situation of each case. An enabling section, empowering the Court to make an exception to the generality of the previous section, does not by itself divest the previous section of its general character and affects the generality of the previous section only when it is actually put to use in a particular case. Whenever, such power conferred by the enabling section is used, it comes to an end the moment the proceeding is concluded. This power under section 28(2) exists for speedy and effective disposal of an application under section 12 or under sub- section (2) of section 23 and as soon as the purpose is achieved, the power extinguishes itself. In other words, the power under sub-section (2) of section 28 begins, if at all it begins, upon the d
