Application Under Section 12 Domestic Violence Act Not A 'Complaint', Does Not Attract Procedure U/S 200-204 CrPC: Meghalaya High Court

The observations were made by a bench comprising Justice W. Diengdoh while hearing a plea in terms of which the petitioner had sought quashing of criminal proceedings under Section 12 DV Act, pending before the Court of the Judicial Magistrate First Class at Shillong.

In his plea, the petitioner submitted that the proceedings under Section 12 are civil in nature and the procedure to be adopted by the court on receipt of an application filed by the aggrieved party is first to cause the issue of notice upon the respondent. However, the Magistrate has instead issued a summons upon the petitioner to appear before the court and in course of proceedings, has also issued a bailable warrant of arrest, the petitioner contended.

Alleging contravention of the procedures under the Domestic Violence Act, the petitioner further submitted that even if the application is deemed a complaint, the Magistrate has failed to take recourse to the provisions of Section 202 CrPC to postpone the issue of process against the petitioner, who apparently is residing outside the jurisdiction of the court.

Per contra, respondents defended the non-compliance with the provisions of Section 202 Cr.PC by stating that the procedure laid down under chapter XV of the Criminal Procedure Code does not apply to proceedings under the Domestic Violence Act.

Respondents further contended that under Section 13 of the DV Act, only a notice of the date of hearing is to be served upon the respondent in the prescribed form and the issuance of a summons under the provisions of the code of criminal procedure is not required for proceedings under Section 12 of the DV Act.

After considering the rival contentions, the Court observed that Section 28 specifically prescribes that proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences punishable under Section 31 of the DV Act shall be governed by the provisions of CrPC.

Elaborating on the provision the Court further said that the provisions of CrPC are applicable to all proceedings under the aforesaid sections of the DV Act, unless the Act itself provides a procedure then the same shall govern the proceedings under the said sections.

“Section 31 of the said Act provides that a breach of the protection order or of an interim protection order is a criminal offence, which is cognisable and non-bailable and which will invite a penalty of imprisonment which may extend upto one year or a fine of ₹ 20,000/- or both. This is the only penal provision in the DV Act’, the bench elucidated.

While agreeing with the contention of the respondents that a proceeding under Section 12 of the DV Act is not an offence coming within the purview of Section 31 of the said Act the bench took support from an apex court judgment in Kamatchi v. Lakshmi Narayanan 2022 SCC, wherein the apex court noticed the relevant point set out in the case of Dr. P. Padmanathan and recorded,

“An application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act”.

Relying on the said authority the Court said that an application under Section 12 of the DV Act is not a complaint and the procedure and proceedings cannot be pursued by the parties or by the Magistrate under Sections 200, 202 and 204 of the CrPC respectively. On an application under Section 12 being filed, the Magistrate has to cause the issue of Notice under Section 13 and to call for a response from the respondent, it added.

Finding the petition meritless, the court dismissed the same.

Case Title: Shri Abhishek Agarwala & Anr. Vs. Smti Komal Poddar

Citation: 2023 LiveLaw (Meg) 11