Whether Proceeding U/S 12 Domestic Violence Act Can Be Challenged Under Article 227 Constitution/ S.482 CrPC? Madras HC Refers Issue To Larger Bench

A single judge of the Madras High Court recently referred to a larger bench, the question regarding the applicability of provisions of Section 482 CrPC and/or Article 227 of the Constitution for quashing an application under Section 12 of the Domestic Violence Act.

Justice N Sathish Kumar was considering a batch of petitions seeking to quash the application filed under Section 12 of the DV Act by invoking the provision under Section 482 CrPC. 

Justice Sathish Kumar observed that the recent division bench order that ruled that proceedings under the Domestic Violence Act are civil in nature had also observed that Section 482 CrPC petition is maintainable in Domestic Violence Act proceedings. The single judge opined that this observation was not in consonance with the decisions of the Supreme Court. Thus, he directed the registry to place the following issues before the Chief Justice for constituting a Bench of requisite strength to authoritatively decide them:

1. Whether a proceeding under Section 12 of the D.V.Act can be challenged under Article 227 of the Constitution or under Section 482 of Cr.P.C.? 

2. Whether the aforesaid remedy is available to an aggrieved person before approaching the learned Magistrate and, if necessary, the Court of Sessions by way of an appeal under Section 29 of the D.V.Act?

The single judge noted that pursuant to the order of the division bench, several petitions have been filed under Section 482 CrPC challenging the applications filed under Section 12 of the DV Act for various reliefs. 

When the cases were taken up, some counsels present in the court viz. Senior Advocate Mr.A.Ramesh, Mr.M.Mohammed Riyaz, and Mr.A.E.Ravichandran pointed out that there were conflicting findings recorded in the order of the division bench and raised doubt about the very judgment. 

The court noted that even though the Single judge could not bypass the order of the division bench, when the order of the division bench was contrary to the decision of the Supreme Court, the court could go into the issue of maintainability.

Of course, a learned Single Judge cannot by-pass the judgment of the Hon'ble Division Bench, but at the same time, when the findings of the Hon'ble Division Bench appears to run counter to the decisions of the Hon'ble Supreme Court and the findings also runs counter to its own findings, this Court is of the view that this Court can still go into the maintainability of the petition filed under Section 482 of Cr.P.C. challenging the application filed under Section 12 of the D.V.Act.

The court noted that the division bench had concurred with the observations of Justice Anand Venkatesh in Dr.P.Pathamnathan v. V.Monica to hold that proceedings under the DV Act are civil in nature. The division bench had recorded that the determination of rights under the DV Act does not result in penal consequences so as to term it as criminal proceedings. However, it went on to hold that a petition under Section 482 of CrPC was maintainable against the proceedings filed under Chapter IV of the DV Act. 

The court also noted that the DV Act, under Section 28(2) gives power to the Court to lay down its own procedure. Thus, exercising power under CrPC is not mandatory and there are exceptions provided under Section 28(2) of the DV Act, which was not been dealt with by the Division Bench.

The court also noted that the Act itself provides a provision for appeal before a Court of Session. Thus, when an effective alternative remedy is already available by way of statutory appeal under Section 29, for the proceedings conducted under Chapter IV of the DV Act, the question still arises is as to whether a petition under Section 482 of CrPC is maintainable.

The court highlighted decisions where the Supreme Court had clearly laid down that inherent powers under Section 482 CrPC can be exercised only when there are no alternative remedies available. The court observed as under:

Therefore, permitting a petition under Section 482 of Cr.P.C. to challenge the proceedings under Section 12 of the D.V.Act without exhausting the remedies available under the Statute before the learned Magistrate and the Court of Sessions, there would be parallel remedies; one before the learned Magistrate and other before the Sessions Court or the High Court, which is clearly against the settled principles of law and it would only lead to flooding of petitions under Section 482 of Cr.P.C.

The court also disagreed with the view taken by the division bench that every Judge, irrespective of portfolio, is entitled to exercise inherent jurisdiction under Article 226 / 227 of the Constitution as the same runs contrary to the decisions of the Supreme Court.

In view of such contradictory observations, the single judge deemed it fit to refer the matter to a larger bench for authoritative pronouncement. 

Case Title: Arul Daniel and others v. Suganya

Case No: Crl.O.P.SR.No.31852 of 2022 (and other batch cases)

Citation: 2022 LiveLaw (Mad) 353

Counsel for the Petitioner: Mr.P.Chandrasekar

Click here to read/download the judgment