Merely because the jurisdiction to entertain application under Section 12 of dv act has been conferred upon the learned Magistrate, the said Act cannot be termed as a penal statute and the proceedings under the said Act cannot be treated as Criminal proceedings. The power under the Act can be exercised even by a Civil Court or a Family Court.Therefore, power under Section 482 of the said Code cannot be invoked for quashing the proceedings of application under Section 12 of the said Act in as much as the proceeding of the said application cannot be said to be a criminal proceeding. In any case, it is well settled law that the power under Section 482 can be exercised sparingly and in only exceptional cases.
DATE : OCTOBER 5, 2011.
ORAL JUDGMENT :
Heard the learned counsel appearing for the petitioner. The petitioner is invoking Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India praying for quashing the proceedings of the application made by the first respondent under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as "the Act").
2. The averments made in paragraph Nos.3 and 4 of the petition read thus:
"3. The Petitioner states that since Shri Vijay Yashwant Bhosale harassed the Respondent No.1, the Respondent No.1 invoked the provisions of the Protection of Women From Domestic Violence Act, 2 crwp905-10
2005 by filing Criminal Case No.18 of 2010 under Sections 18, 19, 20, 21 of the Protection of Women From Domestic Violence Act, 2005 in which the Respondent No.1 impleaded the present Petitioner in the capacity of friend of husband of the Respondent No.1. Hereto annexed and marked as EXHIBIT-A is the copy of the said complaint dated 12.2.2010.
4. The Petitioner states that the Learned Trial Court after verification was pleased to summoned the present Petitioner. Hereto annexed and marked EXHIBIT-B is the copy of the said summons dated 17.2.2010.
3. The ground (E) of paragraph No.6 of the petition indicates that process has been issued on the complaint filed by the first respondent by taking cognizance thereof. In the petition, there is no challenge to any order passed by the learned Magistrate on application under Section 12 of the said said Act.
4. The preamble of the Act shows that the same has been enacted to provide more effective protection to the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family and matters connected therewith or incidental thereto.
5. The proceedings under the said Act can be initiated in accordance with Section 12(1) of the said Act. Proceedings can be initiated either by the aggrieved person or by the 3 crwp905-10
protection officer or any person on behalf of the aggrieved person. The application under Section 12(1) is required to be filed in accordance with the format prescribed by Rule 6 of the Protection of Women From Domestic Violence Rules, 2006 (hereinafter referred to as "the said Rules"). Under Sub Section 4 of Section 12 of the Act, after receipt of the application, the learned Magistrate is required to fix the first date of hearing and notice is required to be issued in accordance with Section 13 of the said Act. The Act does not contemplate issue of process or summons or warrant on the application under Section 12(1) of the Act.
6. Various reliefs which can be granted under the said Act are as under :
(a) Under Section 18, protection order can be passed in favour of the aggrieved person; (b) Under Section 19, residence order can be passed in favour of the aggrieved person; (c) Section 20 provides for grant of monitory relief of maintenance, medical expenses, loss of earnings etc.;
(d) Section 21 confers power on the learned 4 crwp905-10
Magistrate to pass orders regarding custody of a child;
(e) Section 22 confers power on the learned Magistrate to pass orders regarding compensation; and
(f) Section 23 of the said Act confers power on the learned Magistrate to pass ex-parte orders granting ad-interim relief or interim relief in terms of the provisions of Section 18, 19, 20, 21 and 22 of the said Act.
7. There are only two penal provisions under the Act. The first one is under Section 31 which provides that for committing a breach of protection order or interim protection order, a person can be punished. The only other penal provision is Section 33. Under the said provision, the protection officer can be punished who refuses to discharge his duties as directed by the learned Magistrate by the protection order.
8. It will be necessary to make a reference to Section 26(1) of the aid Act. It provides that the relief provided for in Sections 18, 19, 20, 21 and 22 can be also sought by the 5 crwp905-10
aggrieved person in any legal proceedings before a Civil Court, a Family Court or a Criminal Court.
9. Thus, the said Act cannot be said to a penal statute. Merely because the jurisdiction to entertain application under Section 12 has been conferred upon the learned Magistrate, the said Act cannot be termed as a penal statute and the proceedings under the said Act cannot be treated as Criminal proceedings. The power under the Act can be exercised even by a Civil Court or a Family Court.
10. There is no question of the learned Magistrate taking cognizance of a complaint under Section 12 of the said Act. There is no provision for issuing a summons contemplated by Code of Criminal Procedure, 1973 on the application under Section 12. Therefore, power under Section 482 of the said Code cannot be invoked for quashing the proceedings of application under Section 12 of the said Act in as much as the proceeding of the said application cannot be said to be a criminal proceeding. In any case, it is well settled law that the power under Section 482 can be exercised sparingly and in only exceptional cases.
11. The petitioner has also invoked extra ordinary jurisdiction of this Court under Article 227 of the Constitution 6 crwp905-10
of India. The petitioner can always raise all objections to the maintainability of pending application under Section 12 at appropriate stage. No interference is called for under Article 227 of the Constitution of India.
12. Hence, petition is rejected by keeping all the contentions on merits open.
(A.S.OKA, J.)
Print Page
Bombay High Court
Mangesh Sawant vs Minal Vijay Bhosale & Anr on 5 October, 2011
Bench: A.S. Oka
CORAM : A.S.OKA, J.DATE : OCTOBER 5, 2011.
ORAL JUDGMENT :
Heard the learned counsel appearing for the petitioner. The petitioner is invoking Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India praying for quashing the proceedings of the application made by the first respondent under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as "the Act").
2. The averments made in paragraph Nos.3 and 4 of the petition read thus:
"3. The Petitioner states that since Shri Vijay Yashwant Bhosale harassed the Respondent No.1, the Respondent No.1 invoked the provisions of the Protection of Women From Domestic Violence Act, 2 crwp905-10
2005 by filing Criminal Case No.18 of 2010 under Sections 18, 19, 20, 21 of the Protection of Women From Domestic Violence Act, 2005 in which the Respondent No.1 impleaded the present Petitioner in the capacity of friend of husband of the Respondent No.1. Hereto annexed and marked as EXHIBIT-A is the copy of the said complaint dated 12.2.2010.
4. The Petitioner states that the Learned Trial Court after verification was pleased to summoned the present Petitioner. Hereto annexed and marked EXHIBIT-B is the copy of the said summons dated 17.2.2010.
3. The ground (E) of paragraph No.6 of the petition indicates that process has been issued on the complaint filed by the first respondent by taking cognizance thereof. In the petition, there is no challenge to any order passed by the learned Magistrate on application under Section 12 of the said said Act.
4. The preamble of the Act shows that the same has been enacted to provide more effective protection to the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family and matters connected therewith or incidental thereto.
5. The proceedings under the said Act can be initiated in accordance with Section 12(1) of the said Act. Proceedings can be initiated either by the aggrieved person or by the 3 crwp905-10
protection officer or any person on behalf of the aggrieved person. The application under Section 12(1) is required to be filed in accordance with the format prescribed by Rule 6 of the Protection of Women From Domestic Violence Rules, 2006 (hereinafter referred to as "the said Rules"). Under Sub Section 4 of Section 12 of the Act, after receipt of the application, the learned Magistrate is required to fix the first date of hearing and notice is required to be issued in accordance with Section 13 of the said Act. The Act does not contemplate issue of process or summons or warrant on the application under Section 12(1) of the Act.
6. Various reliefs which can be granted under the said Act are as under :
(a) Under Section 18, protection order can be passed in favour of the aggrieved person; (b) Under Section 19, residence order can be passed in favour of the aggrieved person; (c) Section 20 provides for grant of monitory relief of maintenance, medical expenses, loss of earnings etc.;
(d) Section 21 confers power on the learned 4 crwp905-10
Magistrate to pass orders regarding custody of a child;
(e) Section 22 confers power on the learned Magistrate to pass orders regarding compensation; and
(f) Section 23 of the said Act confers power on the learned Magistrate to pass ex-parte orders granting ad-interim relief or interim relief in terms of the provisions of Section 18, 19, 20, 21 and 22 of the said Act.
7. There are only two penal provisions under the Act. The first one is under Section 31 which provides that for committing a breach of protection order or interim protection order, a person can be punished. The only other penal provision is Section 33. Under the said provision, the protection officer can be punished who refuses to discharge his duties as directed by the learned Magistrate by the protection order.
8. It will be necessary to make a reference to Section 26(1) of the aid Act. It provides that the relief provided for in Sections 18, 19, 20, 21 and 22 can be also sought by the 5 crwp905-10
aggrieved person in any legal proceedings before a Civil Court, a Family Court or a Criminal Court.
9. Thus, the said Act cannot be said to a penal statute. Merely because the jurisdiction to entertain application under Section 12 has been conferred upon the learned Magistrate, the said Act cannot be termed as a penal statute and the proceedings under the said Act cannot be treated as Criminal proceedings. The power under the Act can be exercised even by a Civil Court or a Family Court.
10. There is no question of the learned Magistrate taking cognizance of a complaint under Section 12 of the said Act. There is no provision for issuing a summons contemplated by Code of Criminal Procedure, 1973 on the application under Section 12. Therefore, power under Section 482 of the said Code cannot be invoked for quashing the proceedings of application under Section 12 of the said Act in as much as the proceeding of the said application cannot be said to be a criminal proceeding. In any case, it is well settled law that the power under Section 482 can be exercised sparingly and in only exceptional cases.
11. The petitioner has also invoked extra ordinary jurisdiction of this Court under Article 227 of the Constitution 6 crwp905-10
of India. The petitioner can always raise all objections to the maintainability of pending application under Section 12 at appropriate stage. No interference is called for under Article 227 of the Constitution of India.
12. Hence, petition is rejected by keeping all the contentions on merits open.
(A.S.OKA, J.)
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