The High Court’s inherent powers under Section 482 Cr.P.C cannot be invoked to quash complaints under the Domestic Violence Act: Madras HC.
घरेलू हिंसा अधिनियम के तहत की गयी शिकायतों को दंड प्रक्रिया संहिता की धारा 482 के तहत निरस्त नहीं किया जा सकता है: – मद्रास उच्च न्यायालय
Crl.OP Nos.28458, 16411, 33643 of 2019, Crl.OP.Nos.16389, 16450, 17156, 19918, 20434 of 2020 and Crl.OP.Nos.45, 73, 138, 184, 191, 213, 216, 233, 243, 332 and 349 of 2021
and
Crl. MP. Nos 8239, 8240, 18568, 18569, 15188, 15189 of 2019, 6300, 6302, 6345, 6344, 6641, 8174, 8562 of 2020, 31, 32, 38, 39, 57,70, 74,99, 76,78, 96, 95, 97, 98, 110, 113, 114, 171 and 172 of 2021
1.Dr.P.Pathmanathan
2.Dr.P.Jayagandhi
3.Dr.P.Mukil Sakthi ….Petitioners
in Crl OP No. 28458 of 2019
Vs.
1. Tmt.V.Monica
2.Minor R.Saithanya Krishna
Rep. by his mother V.Monica
ETR Nagar, Veeramani Complex,
Bargur Post & Taluk, Krishnagiri District. .. Respondents
in Crl.OP.No.28458 of 2019
Order dated 18.01.2021.
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The Bench of The Hon’ble Justice Mr. N.ANAND VENKATESH at Madras High Court, in above-mentioned batch case, held that proceedings under the Domestic Violence Act (DV Act) are civil in nature, except in cases where Sections 31 and 33, to do with a breach of a protection order or an interim order come into play, therefore, High Court’s inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) cannot be invoked to quash complaints under the Domestic Violence Act since this provision would only apply to criminal proceedings.
On account of viewing the DV Act proceedings as criminal in nature, the Court observed that there was a tendency to misuse the proceedings as a weapon of harassment against persons unrelated to the proceedings “by making them stand before a Magistrate like accused persons. It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act.
The Court further among the various reliefs given under the Domestic Violence Act, the breach of a protection order or an interim protection order alone is a cognizable and non-bailable offence under Sections 31 and 32(1) of the Act.
All other reliefs contemplated under Chapter IV of the Act (residence orders, monetary reliefs, custody orders, custody orders, compensation orders etc.) are civil in nature.
The procedure set out in the DV Act and the Rules makes a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the CrPC (save in the case of offences under Sections 31 and 33 of the Act).
The application of the CrPC to an application under Section 12 of the DV Act (application to Magistrate for relief under the Act) is residuary in nature by virtue of the mandate of Section 28(1) of the Act (which states, “Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the CrPC).
To constitute a Criminal Court, it is not sufficient that it is one of the Courts mentioned under Section 6, CrPC (including a Magistrate court, which is the court dealing with applications under the DV Act). To be a Criminal Court, it must also be acting as a Criminal Court. The true test depends on the character of the proceeding i.e., the nature of the right violated and the relief claimed thereon, and not the nature of the Tribunal adjudicating such a proceeding. Merely because a Magistrate is called upon to adjudicate and enforce civil rights in an application under Chapter IV of the DV Act, it does not follow that the proceeding before it is of a criminal character. A court of Magistrate not exercising functions or determining cases of a criminal character cannot be said to be a Criminal Court.
A Magistrate exercising jurisdiction to grant reliefs of a civil nature does not function as a Magistrate exercising authority under CrPC.
The fact that a Magistrate may, at a subsequent stage under Chapter V try an offence under Section 31 of the Act for breach of an order under Sections 18 or 23 of the Act does not render a proceeding under Chapter IV of the Act as one before a criminal court. Merely because the Court of Magistrate is a criminal court in the latter stage, it does not follow that it is a criminal court in the former stage as well.
Section 482, CrPC petitions challenging Section 12, DV Act applications not maintainable.
In view of the above reasoning, the Court concluded that as the jurisdiction exercised by the Magistrate under the DV Act does not partake the character of a criminal proceeding, the result is that a Magistrate cannot be said to be exercising criminal jurisdiction as a Criminal Court while exercising jurisdiction under Chapter IV of the DV Act.
As such, the Judge further pointed out that Section 482, Cr.P.C would not lie to quash complaints under Section 12 of the DV Act since, “it is settled law that a petition under Section 482, Cr. P.C would lie only against an order of a criminal court.”
This does not, however, mean that an aggrieved respondent is remediless. The Magistrate exercising jurisdiction under Chapter IV of the DV Act, is certainly a subordinate Court for the purposes of Article 227, and a petition under Article 227 of the Constitution (revisional jurisdiction of the High Court) would still be available challenging the proceedings under Chapter IV of the DV Act, in an appropriate case, if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction.
In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.
Reporting By: – Amit Kashyap.
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