Allahabad High Court
Sandeep Kishor And Another vs State Of U.P. And Another on 9 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl. No. 15) Neutral Citation No. - 2024:AHC:129900 Court No. - 79 Case :- APPLICATION U/S 482 No. - 11130 of 2024 Applicant :- Sandeep Kishor And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pavan Kumar Counsel for Opposite Party :- G.A.,Manoj Kumar Gautam Hon'ble Anish Kumar Gupta,J.
1. Case called out in the revised call. None appears on behalf of applicants. However, Sri Pankaj Barnwal holding brief of Sri Manoj Kumar Gautam, learned counsel for opposite party no. 2 and Sri Pankaj Srivastava, assisted by Sri Sandeep Chaudhar, learned AGA for the State are present.
2. Instant application is arising out of an ex parte order passed on 7.5.2022 by the Additional Chief Judicial Magistrate, Nagina, District Bijnor on an application filed under Sections 12, 19, 20, 22, 26 and 27 of the Protection of Women from Domestic Violence Act, 2005 whereby the Additional Chief Judicial Magistrate has directed the applicants to make payment of Rs. 2,00,000/- towards the medical expenses to the opposite party no. 2 and Rs. 10,000/- per month as maintenance. Against the said order, a recall application was filed which was also dismissed vide order dated 24.05.2023 by the Additional Chief Judicial Magistrate, Nagina, District Bijnor. Against the aforesaid order, a Criminal Appeal No. 93 of 2023 was filed by the applicants which was also rejected by the order dated 15.02.2024 against which the instant application has been filed.
3. Learned counsel for the opposite party no. 2 has raised a preliminary objection with regard to the maintainability of the said application by submitting that against the orders passed under Section 12 of the Domestic Violence Act, the application under Section 482 Cr.P.C. is not maintainable as the proceedings under Section 12 of the D.V. Act are not the criminal proceedings in the strict sense and the complaint under the provisions of Domestic Violence Act is not the complaint as the complaint under Section 2(d) of the Code of Criminal Procedure.
4. Learned counsel for the opposite party no. 2 in support of his submissions has relied upon the judgment dated 27.10.2016 passed in Criminal Revision No. 582 of 2016 (Dinesh Kumar Yadav Vs. State of U.P. and another) wherein it has been held that against an order passed under section 29 of the D.V. Act, 2005 by the Court of Sessions, the revision shall be maintainable under section 397/401 Cr.P.C. He further relied upon a judgement of Bombay High Court passed in the case of Jalendra and others Vs. State of Maharashtra in Criminal Application (APl) No. 179 of 2020 dated 6.6.2023 wherein it has been held that applications filed under Section 482 Cr.P.C. challenging the proceedings under Section 12 of the D.V. Act are not maintainable. The similar view has also been taken by a Coordinate Bench of this Court in the case of Smt. Suman Mishra vs. The State of U.P. And Ors. in Application U/S 482 No. 6975 of 2013 dated 31.07.2024. Learned counsel further relied upon a judgment of Madras High Court passed in the case of Dr. P. Pathmanathan vs. V. Monica : 2021 SCC Online Mad 8731 wherein it has been held that the applications under Section 482 Cr.P.C. challenging the proceeding under Section 12 of the Domestic Violence Act is not maintainable. In the judgment of Madras High Court passed in Dr. P. Pathmanathan's case (supra), following directions have been issued, which read as under:
"(i) 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.
(ii) 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.
(iii) 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.
(iv) 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 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)
(v) 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.
(vi) It is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act. As pointed out by this Court in Vijaya Baskar (cited supra), there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate.
(vii) As there is no issuance of process as contemplated under Section 204, Cr.P.C in a proceeding under the D.V Act, the principle laid down in Adalat Prasad v Rooplal Jindal (2004 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will not apply to a proceeding under the D.V Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V Act for effective redress (See V.K Vijayalekshmi Amma v Bindu. V, (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V Act, at the threshold before thisCourt under Article 227 of the Constitution.
(viii) Similarly, any party aggrieved may also take recourse to Section 25 which expressly authorises the Magistrate to alter, modify or revoke any order under the Act upon showing change of circumstances.
(ix) In Kunapareddy (cited supra), the Hon'ble Supreme Court upheld the order of a Magistrate purportedly exercising powers under Order VI, Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C."), to permit the amendment of an application under Section 12 of the D.V Act. Taking a cue therefrom, it would be open to any of the respondent(s), at any stage of the proceeding, to apply to the Magistrate to have their names deleted from the array of respondents if they have been improperly joined as parties. For this purpose, the Magistrate can draw sustenance from the power under Order I Rule 10(2) of the C.P.C. A judicious use of this power would ensure that the proceedings under the D.V Act do not generate into a weapon of harassment and would prevent the process of Court from being abused by joining all and sundry as parties to the lis.
(x) The Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by this Court nearly a decade ago in Vijaya Baskar (cited supra). Precedents are meant to be followed and not forgotten, and the Magistrates would, therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the D.V Act.
(xi) In Satish Chandra Ahuja (cited supra), the Hon'ble Supreme Court has pointed out the importance of the enabling provisions under Section 26 of the D.V Act to avoid multiplicity of proceedings. Hence, the reliefs under Chapter IV of the D.V can also be claimed in a pending proceeding before a civil, criminal or family court as a counter claim.
(xii) While recording evidence, the Magistrate may resort to chief examination of the witnesses to be furnished by affidavit (See Lakshman v Sangeetha, 2009 3 MWN (Cri) 257. The Magistrate shall generally follow the procedure set out inSection 254, Cr.P.C while recording evidence.
(xiii) Section 28(2) of the Act is an enabling provision permitting the Magistrate to deviate from the procedure prescribed under Section 28(1), if the facts and circumstances of the case warrants such a course, keeping in mind that in the realm of procedure, everything is taken to be permitted unless prohibited (See Muhammad Sulaiman Khan v Muhammad Yar Khan, 1888 11 ILR All 267).
(xiv) A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v. Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538.) 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 underSection 29of the Act."
5. In view of the aforesaid judgments in the cases of Dinesh Kumar Yadav (supra), Smt. Suman Mishra (supra), Jalendra (supra) and Dr. P. Pathmanathan (supra), it is stipulated that application filed under section 482 Cr.P.C. would not lie against the order passed under Section 12 of the Domestic Violence Act, however, it is open for the applicants to file appropriate petition under Section 227 of the Constitution of India.
6. In view thereof, the instant application filed under section 482 Cr.P.C. is not maintainable and is accordingly dismissed.
Order Date :- 9.8.2024 Anjali