Petition U/s 482 CrPC Seeking Quashing Of A Domestic Violence Application Not Maintainable: Madras High Court

The Madras High Court has held that that a petition under Section 482 of the Code of Criminal Procedure (CrPC) to quash a complaint under Section 12 of the Domestic Violence Act is not maintainable.The court observed 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.Justice N. Anand Venkatesh observed thus while dismissing a batch of petitions filed under Section 482 CrPC seeking to quash a complaints filed under Section 12 of the Domestic Violence Act.The court, to hold thus, noted that, in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774, it was held that an application before a Magistrate for one or more reliefs under Chapter IV of the DV Act, are civil in nature, and are proceedings to vindicate the civil rights of an aggrieved person. "It is entirely true that the nomenclature of the petition is not decisive of the jurisdiction of the Court. Section 482, Cr.P.C merely saves the inherent power of the High Court to make such orders as may be necessary to a) give effect to an order under this Code; or b) prevent abuse of process of any Court; or c) otherwise secure the ends of justice. It is well settled that this section has not given any new power to the High Court but has merely preserved the power inherently possessed by every High Court as a superior Court of record. As a highest Court of Justice in the State, the High Court exercises a visitorial or supervisory jurisdiction over all Courts in the State. However, the plenitude of the inherent power under Section 482, Cr.P.C does not extend to annul proceedings which are not before a Criminal Court. As pointed out supra, to constitute a criminal court, it is not sufficient that the Court is one of the Courts enumerated under Section 6 Cr.P.C, it is also necessary that the proceedings before it are criminal in character. If the proceeding before the Court is civil in nature, then it cannot be said that the Court is a Criminal Court exercising criminal jurisdiction for the purposes of Section 482, Cr.P.C."The judge also disagreed with the view taken by the Kerala High Court in Baiju v. Latha, (2011) 3 KLJ 331, in which it was observed that the court of Magistrate or Metropolitan Magistrate acts as a criminal court while discharging functions under the Act though some of the reliefs it could grant under the Act are of a civil nature. The court also disagreed with the view of the Full Bench of the Bombay High Court in Prabhakar Mohite v State of Maharashtra that a petition under Section 482 of the Code seeking quashing of a complaint under DV Act is maintainable.The court noted that in several cases under DV Act, Magistrates mechanically follow the drill of the procedure set out in Sections 190(1)(a), 200 to 204, Cr.P.C and issue summons as if the respondents before it are accused of offences. The judge, therefore, issued the following directives, for the proper disposal of applications under Section 12 of the D.V Act:An application under Section 12 of the D.V. Act, is not a complaint under Section 2(d) of the Cr.P.C. Consequently, the procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under the D.V Act. The Magistrate cannot, therefore, treat an application under the D.V Act as though it is a complaint case under the Cr.P.C.An application under Section 12 of the Act shall be as set out in Form II of the D.V Rules, 2006, or as nearly as possible thereto. In case interim ex-parte orders are sought for by the aggrieved person under Section 23(2) of the Act, an affidavit, as contemplated under Form III, shall be sworn to.The Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of the D.V Act. Instead, the Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to the D.V Rules, 2006. Service of such notice shall be in the manner prescribed under Section 13 of the Act and Rule 12 (2) of the D.V Rules, and shall be accompanied by a copy of the petition and affidavit, if any. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V Rules, 2006, makes it clear that the parties can appear before the Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and 52 other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West Bengal (2009 SCC Online Cal 1903).If the respondent(s) does not appear either in person or through a counsel in answer to a notice under Section 13, the Magistrate may proceed to determine the application ex parte.It is not mandatory for the Magistrate to issue notices to all parties...

Petition U/s 482 CrPC Seeking Quashing Of A Domestic Violence Application Not Maintainable: Madras High Court

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