Allahabad High Court
Amardeep Sonkar vs State Of U.P. And Another on 5 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Neutral Citation No. - 2024:AHC:62615 Court No. - 92 Case :- APPLICATION U/S 482 No. - 8732 of 2024 Applicant :- Amardeep Sonkar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shivam Agarwal,Tanu Shree Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Shivam Agarwal, learned counsel for the applicant and Sri Anish Kr. Upadhyay, learned AGA for the State.
2. The instant Application has been filed seeking quashing of the summoning order dated 22.5.2023 as well as entire proceeding of Complaint Case No. 227 of 2023 (Smt. Gunja Sonkar vs. Amardeep Sonkar and others), u/s 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "Domestic Violence Act"), P.S. Kothwali Katra, District Mirzapur, pending before Civil Judge (J.D.)/FTC, Mirzapur.
3. The fact giving rise to the present case is that opposite party No.2, who is the wife of the applicant, has filed an application u/s 12 Domestic Violence Act. However, after getting the report from the Protection Officer, the learned Magistrate issued notice to the applicant by order dated 22.5.2023 to reply to the same.
4. learned counsel for the applicant contends that while passing the impugned order dated 22.5.2023, the learned Magistrate has failed to consider that as per Section 28 of the Domestic Violence Act, the procedure of complaint case for the Application filed u/s 12 Domestic Violence Act is to be followed as per Cr.PC.. Before passing the impugned order, he did not record the statement under Section 200 Cr.P C.. As the applicant resides beyond the Magistrate's territorial jurisdiction, the Magistrate had to conduct the enquiry u/s 202(1) Cr.P.C. before proceeding further. It is lastly submitted that the impugned order itself shows that there is complete non-application of mind. Learned counsel for the applicant has relied upon the judgement of the coordinate Bench of this Court in the case ofHamid Ali vs. State of UP and another, Application U/s 482 No. 11135 of 2020, as well asSmt. Geeta vs. State of U.P. ; 2022 8 ADJ 523.
5. Per contra, learned AGA submits that Section 28(2) of the Domestic Violence Act itself provides that notwithstanding anything contained in Section 28(1) of the Domestic Violence Act, the Court can lay down its procedure for the disposal of the Application u/s 12 or Section 23(2) of Domestic Violence Act. It is further submitted that there is no allegation in the complaint regarding the commission of any offence. Therefore, the present complaint is simply an application and not a complaint. It is also submitted that the Court is not bound to strictly follow the procedure of the complaint case as mentioned in the Cr. P.C.
6. After hearing the submissions of learned counsel for the parties as well as on perusal of the record, the following questions have arisen for determination: (i) What is the nature of the proceeding of the Domestic Violence Act; (ii) whether the Application u/s 12 Domestic Violence Act is complaint or simply an application; (iii) whether before issuing notice to opposite parties, the procedure of complaint has to be followed as required u/s 200 and 202 Cr.P.C.
7. Before proceeding further, it would be appropriate to discuss the object of the Domestic Violence Act.
8. The very purpose of enacting the Domestic Violence Act was to provide a remedy that is an amalgamation of the civil rights of the complaint, i.e., the aggrieved person. The intention was to protect women against violence of any kind, especially that occurring within the family. As the civil law does not address this phenomenon in its entirety. It is treated as an offence u/s 498-A of IPC. The purpose of enacting the law was to provide a remedy in civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in society. It is for this reason that the scheme of the Act provides that in the first instance, the order that the Magistrate would pass on an application by the aggrieved person would be of a civil nature, and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, it would be appropriate to reproduce the introduction as well as the relevant portion of the statement of objects and the reasons for the said Act as follows:
"Introduction The Vienna Accord of 1994, the Beijing Declaration, and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women, in its General Recommendations, has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, when a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Penal Code, 1860. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in society, the Protection of Women from Domestic Violence Bill was introduced in Parliament.
Statement of Objects and Reasons
1. Domestic violence is undoubtedly a human rights issue and a serious deterrent to development. The Vienna Accord of 1994, the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (Cedaw), in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family.
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3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law, which is intended to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society."
4. The Bill, inter alia, seeks to provide for the following?
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(ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.".
9. From the object and reason of the Domestic Violence Act, it is clear that the purpose of this Act is to provide a remedy in civil law for the protection of women from being victims of Domestic Violence.
10. Hon'ble Apex Court, in the case ofKunapareddy @ Nookala Shanka Balaji vs. Kunapareddy Swarna Kumar and another (2016) 11 SCC 774, has already observed that all reliefs, contemplated under Chapter IV of the Domestic Violence Act, are civil in nature. The relevant part of paragraph No.12 of theKunapareddy @ Nookala Shanka Balaji (supra) case is quoted as under:-
"12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality."
11. Under the Domestic Violence Act, various reliefs that the Magistrate can grant are set out in Chapter-IV of the Domestic Violence Act, and the same can be summarized as follows:-
"(i) Protection orders (Section 18)
(ii) Residence orders (Section 19)
(iii) Monetary reliefs (Section 20)
(iv) Custody orders (Section 21)
(v) Compensation orders (Section 22)"
12. All the aforesaid reliefs are civil in nature, but the breach of a protection order or an interim protection order alone is a cognizable and non-bailable offence u/s 31 and 32 of the Domestic Violence Act. The proceeding before the Magistrate is in the nature of civil proceeding while deciding the Application under Chapter IV of the Domestic Violence Act, but it may transform into a criminal proceeding while trying an offence under Chapter V of the Domestic Violence Act. Section 12 of the Domestic Violence Act provides the Application on behalf of the aggrieved person or protection officers and not the complaint. The format of the Application u/s 12 of the Domestic Violence Act is also provided in Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as "Rules, 2006"). Section 12(4) of the Domestic Violence Act further mandates that the Magistrate, on receiving the Application, will fix the first date of hearing not ordinarily beyond three days, and Section 13 of the Domestic Violence Act provides that the notice of hearing shall be given to the protection officer not in the form of any summon as mentioned in Section 61 of Cr.P.C. It is further mentioned in Rule 6(5) of the Rules, 2006 that the procedure for the Application u/s 12 of the Domestic Violence Act shall be dealt with in the same manner as laid down u/s 125 Cr.P.C. Sections 12 & 13 of the Domestic Violence Act as well as Rules 6 of the Rules, 2006 are being quoted below:-
"Section 12. Application of Magistrate.
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such Application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every Application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the Application by the Court.
(5) The Magistrate shall Endeavour to dispose of every Application made under sub-section (1) within a period of sixty days from the date of its first hearing.
Section 13. Service of notice.
(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.
Rule 6. Applications to the Magistrate-
(1) Every Application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto.
(2)An aggrieved person may seek the assistance of the Protection Officer in preparing her Application under sub-rule (1) and forwarding the same to the concerned Magistrate.
(3)In case the aggrieved person is illiterate, the Protection Officer shall read over the Application and explain to her the contents thereof.
(4)The affidavit to be filed under sub-section (2) of section 23 shall be filed in Form III.
(5)The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)."
13. Notice under Section 12 of the Domestic Violence Act has been prescribed in Form VII (Rule 11(1)) of the Rules, 2006, while the format of summons has been prescribed in Form I of the Second Schedule of Cr.P.C. Both these formats show that notice u/s 12 of the Domestic Violence Act is sent to appear and answer for civil relief claimed by the applicant while summons is sent to appear and reply to the charge of offence. Therefore, this notice is like any suit or civil proceeding notice.
14. When the protection order is breached, then the proceeding u/s 31 of the Domestic Violence Act will be as per Rule 15(6) of the Rules, 2006. Rule 15(6) of the Rules, 2006 provides that the proceeding u/s 31 of the Domestic Violence Act should proceed summarily in accordance with the procedure of Chapter XXI of Cr.P.C. Section 31 of the Domestic Violence Act as well as Rule 15 of the Rules, 2006 are being quoted as under:-
"Section 31. Penalty for breach of protection order by respondent.
(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
Rule 15. Breach of Protection Orders-
(1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.
(2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.
(3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.
(4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the Police, if she so chooses.
(5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the Protection Officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.
(6) When charges are framed under section 31 or in respect of offences under section 498-A of the Indian Penal Code (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of protection order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 (2 of 1974).
(7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.
(8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.
(9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the Court, which may include-
(a) an order restraining the accused from threatening to commit or committing an act of domestic violence;
(b) an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;
(c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;
(d) an order prohibiting the possession or use of a firearm or any other dangerous weapon;
(e) an order prohibiting the consumption of alcohol or other drugs;
(f) any other order required for protection, safety and adequate relief to the aggrieved person."
15. Section 14 of the Domestic Violence Act further provides that after service of notice upon the respondent, the Magistrate may try to arrange counseling between the parties. Therefore, it is clear that the proceeding of Application u/s 12 of the Domestic Violence Act, as well as the order, passed therein u/s 18, 19, 20, 21, and 22 of the Domestic Violence Act, are essentially civil in nature. Therefore, the provision of appeal is itself provided u/s 29 of the Domestic Violence Act.
16. Even though Section 28(1) of the Domestic Violence Act provides that except the procedure provided under this Act all other proceedings u/s 18, 19, 20, 21, 22, 23 of Domestic Violence Act and also the offence u/s 31 of Domestic Violence Act shall be governed by the provision of Cr.P.C. with further exception u/s 28(2) of Domestic Violence Act which grants discretion to Court to lay down its procedure for the disposal of Application under Section 12 or Section 23 of Domestic Violence Act. In view of the discretion u/s 28(2) of the Domestic Violence Act, court is not bound to follow the provision of Cr.P.C. in stricto sensu while deciding the application u/s 12 of the Domestic Violence Act. For reference, Section 28 of the Domestic Violence Act is quoted as under:-
"Section 28. Procedure.
(1) 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 Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23."
17. As the procedure for sending and service of the notice itself provided in the Domestic Violence Act to provide an opportunity to the respondent before passing any order u/s 18, 19, 20, 21, 22 of the Domestic Violence Act and also to try the offence u/s 31 of the Domestic Violence Act, but merely because the criminal Court is deciding the issues which are of civil nature will not itself make the proceeding as criminal.
18. The Apex Court, in the case of S.A.L. Narayan Row vs. Ishwarlal Bhagwandas; AIR 1965 SC 1818, explained the distinction between the civil and criminal proceedings and also observed that the character of the proceeding does not depend upon the nature of the Tribunal, which is invested with the authority grant leave but depends upon the rights violated and appropriate relief which may be claimed. The relevant extract of the judgement of S.A.L. Narayan Row (supra)is quoted as under:-
"The expression "civil proceeding" is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed............
..............The character of the proceeding, in our judgment, depends not upon the nature of the Tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc."
19. Therefore, in view of the observation of the Apex Court in the case of S.A.L. Narayan Row (supra), it is clear that judging the character of the proceeding depends upon the nature of the violated right and relief claimed and not the Court which is adjudicating such a proceeding. Merely because the Magistrate is called upon to adjudicate and enforce civil rights, an application under Chapter IV of the Domestic Violence Act will not be sufficient to presume that it is of criminal character. A Magistrate not exercising function or determining cases of criminal character cannot be said to be a criminal court. The purpose of sending a notice to the respondent through protection officer u/s 12 of the Domestic Violence Act instead of sending a summons as per Section 61 of Cr.P.C. is to grant the opportunity of hearing to the respondent before passing any order and not to accuse him of any offence. Even otherwise, none of the provisions providing relief to the aggrieved person is in the nature of the offence. It is only when the protection or interim protection order was breached only then the criminal proceeding commences u/s 31 & 32 of the Domestic Violence Act. The word "complaint" is defined u/s 2(d) of Cr.P.C. and the same is quoted as under:-
"2(d)."complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, hascommitted an offence, but does not include a police report."
20. From the perusal of Section 2(d) of Cr.P.C., it appears that where in an application allegations are made against a person who has committed an offence, but in the case of notice issued u/s 12 of the Domestic Violence Act, no allegation of commission of an offence is made out. It simply asks the respondent to reply to the averments of the Application filed u/s 12 of the Domestic Violence Act so that appropriate civil remedy could be granted to the aggrieved person. Rule 16(1) of Rules, 2006 provides the format of Application u/s 12 of the Domestic Violence Act. This format (Form II) nowhere provides any allegation to take action on the part of the Magistrate for committing any offence by the respondent.
21. From the above analysis, it is clear that Application u/s 12 of the Domestic Violence Act is not a complaint as defined u/s 2(d) of Cr.P.C., the procedure for the cognizance set out u/s 190(1)(a) of Cr.P.C. followed by the procedure set out in Chapter XV of Cr.P.C. for taking cognizance will have no application to the proceeding under the Domestic Violence Act. Therefore, Section 190(1)(a) of Cr.P.C. and the procedure mentioned in Chapter XV of Cr.P.C. will apply only in the cases of complaints u/s 2(d) Cr.P.C., filed before a Magistrate and not an application u/s 12 of the Domestic Violence Act. Therefore, the stage of the issuing process contemplated u/s 204 Cr.P.C. has no application to the proceeding u/s 12 of the Domestic Violence Act as the Court, while dealing with the Application u/s 12 of the Domestic Violence Act, is not taking cognizance of any offence but simply dealing with an application for civil relief. Consequently, the procedure of Sections 200 & 202 Cr.P.C. will not be applicable for an application u/s 12 of the Domestic Violence Act.
22. After the aforementioned discussion, this Court comes to the following conclusion:-
(i) Nature of proceeding u/s 12 of the Domestic Violence Act is a civil proceeding, and Application u/s 12 of the Domestic Violence Act is not the complaint as mentioned u/s 2(d) Cr.P.C., therefore, proceeding under the Domestic Violence Act as well as order passed u/s 18, 19, 20, 21, 22 of the Domestic Violence Act are civil in nature except the violation of protection order which is punishable u/s 31 of the Domestic Violence Act;
(ii) Issuance of notice u/s 12 of the Domestic Violence Act is not a summon as mentioned u/s 61 of Cr.P.C., and while issuing such notice, the Magistrate does not take cognizance for any offence as in the case of complaint defined u/s 2(d) Cr.P.C. Therefore, procedure of Sections 200 & 202 Cr.P.C. does not apply in the proceeding u/s 12 the Domestic Violence Act.
23. In view of the foregoing conclusion, the present Application is dismissed.
24. The Registrar (Compliance) is directed to circulate a copy of this order to all the District Judges in the State of Uttar Pradesh, who in turn will circulate the same to all the judicial officers who are dealing with applications u/s 12 of the Domestic Violence Act.
Order Date :- 5.4.2024 Vandana