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,...

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

Aaratrika Bhaumik

Tags