Petition U/s 482 CrPC To Quash Domestic Violence Proceedings Maintainable: Calcutta High Court Disagrees With Madras HC Ruling

The Calcutta High Court recently had the opportunity to expound in detail on the question whether an order passed by a Magistrate in a proceeding under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005 (Act) on the point of maintainability of the said proceeding can be quashed under the provisions of Section 482 of the Code of Criminal Procedure (CrPC).

Section 23 empowers the Magistrate to grant interim and ex parte orders on the basis of an affidavit of the aggrieved person seeking temporary reliefs under Sections 18-21 of the Act.

Justice Bibek Chaudhuri ruled in the affirmative and accordingly observed, 

"If such application is filed by an aggrieved person, will it be a logical proposition that the respondent will not be able to nip the proceedings in bud without waiting for a prolonged trial or otherwise wait for a considerable period till the disposal of trial? My considered reply is - such questions affecting the maintainability of the procedure itself can be decided by this Court under Section 482 of the Code of Criminal Procedure."

The Court further clarified that a respondent can challenge maintainability of a proceeding under Section 12 of the Act by directing invoking the inherent jurisdiction of the High Court under Section 482 CrPC without filling any such application before the Magistrate. 

"In order to invoke section 482 of the Code, it is not required as a precondition that the respondent shall have to file an application challenging maintainability of the proceeding before a learned Magistrate and then appeal and finally an application under Section 482 of the Code", the Court elucidated further. 

In this regard, the Court referred to the Madras High Court decision in Dr. P. Pathmanathan v. Monica wherein it had been held that a petition under Section 482 of CrPC to quash a complaint under Section 12 of the Act is not maintainable. The Madras High Court had further ruled that a petition under Article 227 of the Constitution may be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. 

However, Justice Chaudhuri declined to agree with the pronouncement  of the Madras High Court and thus observed, 

"In view of the above discussion, with all humility, I respectfully differ from the decision of the Hon'ble Single Judge of the Madras High Court in Dr. P. Pathmanathan v. V. Monica: (2021) 2 CTC 57"

It was further noted that Section 28 of the Act envisages the procedure that is to be followed in deciding an application under Section 12 read with Section 23 of the said Act. The Court further recognised that Section 28 of the Act 'in unequivocal term' states that it shall be governed by the provision of the code of criminal procedure.

Although sub-section (2) of Section 28 of the Act contains a non-obstante clause empowering the Court to lay down its own procedure for disposal of an application under Section 12 or sub-Section (2) of Section 23 of the Act, the Court observed,

"In my considered view, Sub-Section (2) of Section 28 cannot be read separately in isolation of Sub-Section (1) of Section 28. The trial court is empowered to lay down its own procedure for disposal of an application under Section 23 but such procedure shall not be dehors the provision of the Code"

The Court further added, 

"It is needless to say that the Protection of Women from Domestic Violence Act, 2005 is a special law. At the risk of repetition, it is recorded that Section 28 of the said Act clearly states that all proceedings under Section 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provision of the Code of Criminal Procedure, 1973. Thus, when the Special Act clearly lays down the procedure of trial of the proceedings under the said Act, there is absolutely no reason to apply any other procedure. The only exception being in Section 26 of the said Act is where a civil suit is pending between the parties, the aggrieved person can pray for relief under Section 18-23 in the said suit."

As a result, the Court opined that since statutory right of revision and appeal are already contained both in the Act as well as the CrPC, invocation of Article 227 of the Constitution is 'illusory', differing further in view from Madras High Court. 

Enumerating upon the objective behind the enactment of the Act, the Court observed,

"The Protection of Women from Domestic Violence Act, 2005 was enacted to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in society. The Act is enacted for eliminating all sorts of discrimination against women. It is the bonafide legislation to render justice to the women who suffered domestic violence."

The Court further opined that the legislation penalises both a criminal act and a civil wrong perpetrated upon an aggrieved woman who is in a domestic relationship with the respondent. The respondent may be the husband, parents, parents-in-law, maternal or matrimonial relations with whom the woman is in a domestic relationship.

"Domestic Violence is an amalgamation of criminal offence and civil wrongs. A lady at the same time may be treated with cruelty, sexual abuse, or subjected to a criminal offense under Indian Penal Code, POCSO Act, etc. And at the same time coupled with the commission of offence she may be denied of having her stridhan properties, residential rights in the shared household, monetary reliefs, and custody of her children", the Court explained further.

Opining on the ambit of power conferred upon High Courts under Section 482 CrPC while exercising inherent jurisdiction, the Court observed that such exercise of powers can be done only under the following conditions- (i) in order to give effect to an order under the Code, (ii) to prevent abuse of the process of the court; and (iii) to otherwise secure the ends of justice.

"While exercising powers under section 482, the court does not function as a court of appeal or revision. Appeal and revision processes are creation of statutes and not contemplated to be the part of inherent powers of the court. The High Court while exercising its inherent powers would not enter into the appreciation or re-appreciation of evidence as it done if a case would reach the court by way of a statutory appeal", the Court remarked further.

Findings 

The Court proceeded to summarise the findings in the following manner, 

(i) Respondent(s) can challenge maintainability of an application under Section 12 of the said Act filled by the aggrieved person before the Court of the learned Magistrate immediately after appearance in the proceeding by filing appropriate petition.

(ii) The Learned Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 of the said Act after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the said Act against the order passed by the learned Magistrate under the provision of Section 29 of the said Act before the learned sessions judge.

(iii) Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 of the Code shall lie

(iv) Alternatively, a respondent may file an application under Section 482 of the Code of Criminal Procedure challenging maintainability of a proceeding under Section 482 of the Code for quashing of the proceedings immediately on receipt of notice before the High Court.

(v) An order upon an application challenging maintainability under Section 12 of the said Act shall not be assailed under Article 227 of the Constitution.

Background 

In the instant case, the aggrieved person is the wife of one Pravin Sighania, the son of the petitioner. It had been alleged that the aggrieved person had been abused by her husband as well as her parents-in-law i.e. the petitioners. Consequently, she had been driven out from her matrimonial home on January 20, 2014 as she was unable to fulfil the demand for dowry.

A complaint had been lodged by the petitioner's daughter-in-law on August 20, 2017 under various provisions of the Dowry Prohibition Act. She had also moved two different forums for maintenance- an application had been filed under Section 125 of CrPC before the Additional Chief Judicial Magistrate, Bidhannagar and relief had also been sought under the Domestic Violence Act.

This was objected to by the petitioners by contending that two different forums could not be moved for the same cause of action as it would amount to double jeopardy. However, such an objection was dismissed by the Judicial Magistrate, Bidhannagar.

Against the impugned order of the Magistrate, the instant criminal revision petition had been filed.

However, Justice Chaudhuri dismissed the instant revision petition by ruling,

"Without going into the merit of the instant revisional application, I would like to record that I have already held that an order allowing or rejecting an application for maintainability of a proceeding under Section 12 of the said Act is final in nature affecting the rights and/or liabilities of the parties in relation to the question as to whether the aggrieved person is entitled to get relief under Section 18-22 and Section 23(2) of the said Act. In view of my specific finding made herein above, the impugned order is made appealable under Section 29 of the said Act."

However leave was granted to the petitioners to file an appeal before the concerned sessions Court.

Case Title: Chaitanya Singhania & Anr v. Khusboo Singhania

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