Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available, the Division Bench said.
Gujarat High Court has held that Complaints under Domestic Violence Act can be quashed invoking the jurisdiction under Section 482 of the Code of Criminal Procedure. The first bench comprising of Acting Chief Justice Jayant Patel and Justice N V Anjaria held that even though the provisions of the Domestic Violence Act provide for remedial measures for civil rights of women, the machinery provided is through criminal court and hence the Code of Criminal Procedure would apply.
The Single Bench, Justice J B Pardiwala, had referred to Division bench the question, whether by invoking Section 482 of CrPC, a High court can quash a complaint filed under the provisions of the Protection of Women from Domestic Violence Act, 2005, after taking note of difference of opinion in two earlier judgment rendered by Single bench of Gujarat High Court. In Narendrakumar @ Nitinbhai Manilal Shah & Ors v. State of Gujarat case, the single bench held that civil remedies are provided under the Act to the aggrieved person. Observing that, there is no reference to the expression “offence or crime” and, therefore, would not fall within the scope and ambit of Section 4(2) of the Code. In Rameshbhai R. Desai case, another single bench, after considering the provisions of Sections 27, 28, 31 and 37 of the Act found that the machinery to secure enforcement of the relief under the Act is under the Code.
The Division bench said that remedy under Section 482 of the Code would be available to a person aggrieved due to complaint made under DV Act. The court added that, the fact that as per Section 29, an appeal is provided to the court of Sessions again strengthens the applicability of the Code to the proceedings under the DV Act. It is true that the Act provides for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. But at the same time, one has to keep in mind the express language used by the Parliament for giving literal meaning to the provisions of the Statute, the court said.
The Court answered the reference to it, in detail, as follows