Bombay High Court
Ravindra Prataap Vichare And Anr vs State Of Maharashtra And Anr on 26 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
APL 928-22 Reference-1.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
3. CRIMINAL APPLICATION NO.928 OF 2022
Lincen Louis Thommana and Ors. ... Applicants.
Versus
Leena Lincen Thommana (Maiden Name Leena
@ Eliozabeth Mohan Kalathrayil) and Anr. ... Respondents.
------
Ms. Kirti Ahuja a/w. Ms.Kanika Ahuja, for Applicants.
Mr. Nitin Vhatkar, for the Respondent No.1.
Ms. Shilpa Gajare, APP for Respondent-State.
------
WITH
CRIMINAL APPLICATION NO.1325 OF 2022
Husain Zoeb Manasawala and Anr. ... Applicants.
Versus
Siddiqua Husain Manasawala and Anr. ... Respondents.
------
Mr. Saif Mobhani, for the Applicants.
Mr. Ajay M. Nuniwal a/w. Mr.Dhiraj Oza and Ms.Smita Dubey, for the
Respondent No.1.
Ms. Shilpa Gajare, APP for Respondent-State.
------
WITH
CRIMINAL WRIT PETITION (ST.) NO.18200 OF 2023
Nitesh Hindurao Galave ... Petitioner.
Versus
State of Maharashtra and Anr. ... Respondents.
------
Mr.Laxman Kalel for the Petitioner.
Ms. Shilpa Gajare, APP for Respondent-State.
------
WITH
CRIMINAL APPLICATION NO.576 OF 2018
Patil-SR (ch)/sam 1 of 21
APL 928-22 Reference-1.doc
Lilavati Shantilal Modi and Ors. ... Applicants.
Versus
State of Maharashtra and Anr. ... Respondents.
------
Mr.Ishan Jani, for the Applicants.
Ms. Shilpa Gajare, APP for Respondent-State.
Mr.Sandeep Bhupat Satkar (appointed) for Respondent No.2.
------
WITH
CRIMINAL APPLICATION NO.76 OF 2021
Sanjeev Ramesh Doshi and Ors. ... Applicants.
Versus
State of Maharashtra and Anr. ... Respondents.
------
Mr.Mihir Gheewala a/w Ishan Jani, Riddhi Badheka, Farhad Pantheki and Aditya
Mehta, for the Applicants.
Ms. Shilpa Gajare, APP for Respondent-State.
Mr.Mihir Desai, Senior Advocate, a/w Ms.Drishti Singh and Ms.Vriddhi
Pardasany i/by MZM Legal for Respondent No.2.
------
WITH
CRIMINAL WRIT PETITION NO.2778 OF 2023
WITH
CRIMINAL WRIT PETITION NO.2983 OF 2023
Amit Prabhakar Dhawale and Ors. ... Petitioners.
Versus
Pallavi Amit Dhawale and Anr. ... Respondents.
------
Ms. Chaitali Chaudhari, for the Petitioners.
Mr. Shehazad Naqui a/w Ms.Reshma Mutha, for Respondent No.1.
Ms. Shilpa Gajare, APP for Respondent-State.
------
WITH
CRIMINAL WRIT PETITION NO.4826 OF 2022
Patil-SR (ch)/sam 2 of 21
APL 928-22 Reference-1.doc
Shivraj Bapusaheb Bhosale and Anr. ... Petitioners.
Versus
State of Maharashtra and Anr. ... Respondents.
------
Ms.N.S. Baig, for the Petitioners.
Ms. M.R. Tidke, APP for Respondent-State.
------
AND
4. CRIMINAL WRIT PETITION NO.1839 OF 2022
Sullaja Firodia Motwani and Anr. ... Petitioners.
Versus
State of Maharashtra and Anr. ... Respondents.
------
Mr. Aditya Mithe a/w Mr.Sachin Agawane, Ms. Karishma Tawari, for the
Petitioners.
Mr. Kiran C. Shinde, APP for Respondent-State.
------
AND
45. CRIMINAL WRIT PETITION (ST.) NO.1564 OF 2023
Ravindra Prataap Vichare and Anr. ... Petitioners.
Versus
State of Maharashtra and Anr. ... Respondents.
------
Ms. Nazneen S. Baig, for the Petitioners.
Mr. Kiran C. Shinde, APP for Respondent-State.
Mr. Suryakant B. Choudhari a/w Mr.Chaitnya Bagal, Mr.Vishal Waghmare i/by
Mr.Sachin Hande, for Respondent No.2.
------
Coram : Sharmila U. Deshmukh, J.
Date : February 26, 2024.
ORDER :
1. Heard.
Patil-SR (ch)/sam 3 of 21 APL 928-22 Reference-1.doc
2. This group of petitions/ applications were taken up for hearing on the preliminary objection of maintainability in view of the conflicting decisions of co-ordinate benches of this Court. These groups of Petitions/applications are filed under Section 482 of Code of Criminal Procedure, 1973 [for short "Cr.P.C."] and/or under Article 226 or 227 of the Constitution of India, seeking quashing of proceedings initiated by the Respondent aggrieved person under the provisions of Protection of Women from Domestic Violence Act, 2005 [for short "the DV Act".]
3. The conflicting decisions of the co-ordinate benches which has been brought to the notice of this Court is the decision of Daya v. State of Maharashtra [2023 SCC OnLine Bom 1118] and decision of Dhananjay Mohan Zombade v. Prachi [2023 SCC OnLine Bom 1607] where the former decision holds that applications made under Section 482 of Cr.P.C challenging the proceeding under Section 12 of D.V Act are not maintainable and the later decision has decided in favour of the maintainability of the application for quashing of proceeding under Section 12 of D.V. Act.
4. The arguments on behalf of Petitioners in support of the maintainability of the applications for quashing were led by Mr. Gheewala, learned counsel appearing for the applicants in Criminal Patil-SR (ch)/sam 4 of 21 APL 928-22 Reference-1.doc Application No.576 of 2018 and Criminal Application No.76 of 2021. Mr. Mihir Desai, learned Senior Advocate has advanced arguments on behalf of the private Respondents-aggrieved person against the maintainability of the applications. The learned Counsel in other applications/petitions while adopting the arguments on the respective counsels have supplemented the submissions.
5. Mr. Gheewala would submit that the question as to whether the High Court can exercise its powers under section 482 of Cr.P.C. in respect of the proceedings under DV Act has been settled by the Full Bench decision of this Court in Nandkishor Pralhad Vyawahare v. Mangala [2018 SCC OnLine Bom 923]. He submits that the Full Bench of this Court had specifically considered the issue of power of High Court under Section 482 of Cr.P.C in respect of proceedings under the D.V. Act. He has taken this Court minutely through the decision of the Full Bench and would urge that the Full Bench has held that the inherent powers of High Court under section 482 of Cr.P.C. subject to the self-imposed restrictions including the factor of availability of equally efficacious alternate remedy under section 29 of the DV Act would be available for redressal of grievance of the parties arising out from the orders passed in the proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and also in respect of the offences under section 31 Patil-SR (ch)/sam 5 of 21 APL 928-22 Reference-1.doc of the DV Act. He submits that decision of the Full Bench is binding on this Court. Placing reliance on decision of Apex Court in the case of Satish Chander Ahuja v. Sneha Ahuja [(2021) 1 SCC 414], submits that the Apex Court has observed in paragraph 138 that the proceedings under the DV Act are governed by Cr.P.C. He would submit that the provisions of section 28 of the DV Act and the judicial pronouncements makes it amply clear that Cr.P.C. governs the proceedings under the DV Act and that being the position there is no reason to exclude the applicability of section 482 of Cr.P.C. for quashing of the proceedings under the DV Act. He submits that reliance on decision of the Apex Court in the case of Kamatchi v. Laxmi Narayanan [2022 SCC OnLine SC 446] to support the proposition that the remedy under section 482 of Cr.P.C. is not available for quashing of the proceedings under the DV Act is misplaced as the decision does not lay down an absolute proposition of law that applications under section 482 of Cr.P.C. are not maintainable for quashing of D.V. proceedings. He submits that one of the submissions before the Apex Court in the case of Kamatchi (supra) was that in view of decision in Adalat Prasad v. Rooplal Jindal [(2004) 7 SCC 338] in the absence of review power, or inherent power with the subordinate criminal Courts, the remedy lies in invoking section 482 of Cr.P.C.. He submits that it is in that context, Patil-SR (ch)/sam 6 of 21 APL 928-22 Reference-1.doc the Apex Court has dealt with the said submission and held that dictum in Adalat Prasad (supra) would not get attracted at the stage when notice is issued under section 12 of the DV Act. He submits that decision in the case of Kamatchi (supra) was dealing with the issue as regards the limitation for taking cognizance as provided under section 468 of Cr.P.C. He submits that different High Courts as well as this High Court in various proceedings have quashed the application filed under the DV Act by invoking powers under section 482 of Cr.P.C. or under Article 226/227 of Constitution of India.
6. He submits that the learned Single Judge of this Court in the case of Dhananjay Mohan Zombade v. Prachi [2023 SCC OnLine Bom 1607] has dealt with the preliminary objection regarding the maintainability of application in view of the decision of the Apex Court in the case of Kamatchi (supra) and has held that the issue before the Apex Court in the case of Kamatchi (supra) was not in respect of applicability of section 482 of Cr.P.C, which view should be followed by this Court.
7. Ms. N.S. Baig, leaned counsel appearing for the petitioners in Criminal Writ Petition No.4826 of 2022 submits that the Apex Court even subsequent to the decision of Kamatchi (supra) has entertained the special leave petitions arising out of the application under section Patil-SR (ch)/sam 7 of 21 APL 928-22 Reference-1.doc 482 of Cr.P.C. dealt with by different High Courts. Ms. Kirti Ahuja, learned counsel appearing for the applicant in Criminal Application No. 928 of 2022 would submit that learned Single Judge of this Court in the case of Dhananjay Mohan Zombade (supra) has relied upon the decision of this Court in the case of Nandkishor Pralhad Vyawahare v. Mangala [2018 SCC OnLine Bom 923] and has also considered the Full Bench decision of Madras High Court in the case of Arul Daniel (supra) and has held that the Full Bench decision of this Court binds this Court, however, the Full Bench decision of Madras High Court has a persuasive value. She submits that both the remedies, i.e., remedy of filing an application before the Magistrate as well as invoking the inherent powers of this Court are available to the parties.
8. Per contra Mr. Mihir Desai, learned Senior Advocate appearing for respondents-aggrieved persons would submit that decision of the Apex Court in the case of Kamatchi (supra) although considering the issue of limitation, was also considering the submission that the only remedy lies in invoking the powers of this Court under section 482 of Cr.P.C.. He has taken this Court in detail through the judgment of the Apex Court in Kamatchi (supra) and would submit that the Apex Court has noted with approval the decision of learned Single Judge in Dr. P. Padmanathan v. Tmt.V.Monica. He submits that at the stage of Patil-SR (ch)/sam 8 of 21 APL 928-22 Reference-1.doc issuing notice, the provisions of Cr.P.C. will not apply as the application under section 12 of the DV is not a complaint. He submits that in paragraph 31 of Kamatchi (supra), the Apex Court has held that the dictum in Adalat Prasad (supra) would not get attracted at the stage when notice is issued under section 12 of the DV Act. He would submit that even obiter of the Apex Court is binding on this Court. He submits that learned Single Judge of this Court in the case of Daya v. State of Maharashtra (supra) has taken a view that the applications made under section 482 of Cr.P.C. challenging the proceedings under section 12 of the DV Act are not maintainable. He would submit that in view of the conflicting decisions of co-ordinate benches, this Court may refer the issue to the larger bench.
9. Learned counsel for the parties have placed following decisions for consideration:
[a] Adalat Prasad v. Rooplal Jindal [(2004) 7 SCC 338]; [b] Nandkishor Pralhad Vyawahare v. Mangala [2018 SCC OnLine Bom 923];
[c] Satish Chander Ahuja v. Sneha Ahuja [(2021) 1 SCC 414]; [d] Masood Khan v. Millie Hazarika [2021 SCC OnLine Megh 58]; [e] Kamatchi v. Laxmi Narayanan [2022 SCC OnLine SC 446]; [f] Anil Daniel v. Suganya [2022 SCC OnLine Mad 5434];
Patil-SR (ch)/sam 9 of 21
APL 928-22 Reference-1.doc
[g] Daya v. State of Maharashtra [2023 SCC OnLine Bom 1118];
[h] Dhananjay Mohan Zombade v. Prachi [2023 SCC OnLine Bom
1607];
[i] Central Board of Dawoodi Bohra Community v. State of
Maharashtra [(2005) 2 SCC 673];
[j] Official Liquidator v. Dayanand [(2008) 10 SCC 1];
[k] Mary Pushpam v. Telvi Curusumary [AIR 2024 SC 714]; and
[l] Jaisri Sahu v. Rajdewan Dubey [AIR 1962 SC 83].
10. I have considered the submissions and various decisions tendered across the bar. It is evident that there is a cleavage of opinion between two Co-ordinate Benches of this Court on the aspect of maintainability of application under Section 482 of Cr.P.C seeking quashing of D.V. proceedings. In case of Daya v. State of Maharashtra (supra) alongwith other connected Petitions/Application, decided on 6th June 2023. the learned Single Judge of this Court [Coram : G. A. Sanap, J.] was considering the issue of maintainability of applications under Section 482 of Cr.P.C for quashing the D.V. proceedings. The learned Single Judge considered the decision of Apex Court in the case of Kamatchi (supra) as well as the decision of Full Bench of this Court in the case of Nandkishor Pralhad Vyawahare v. Mangala (supra) as also the decision of the Full bench of Madras High Court in the case of Anil Daniel v. Suganya [2022 SCC OnLine Mad 5434] and Patil-SR (ch)/sam 10 of 21 APL 928-22 Reference-1.doc has held thus in paragraphs 19 to 21 :
"19. The Full Bench of Madras High Court has noted that Hon'ble Apex Court in Kamatchi's case (supra) has considered the decision of learned Single Bench of Madras High Court in Dr.P.Pathmanathan's case (supra). The Full Bench of Madras High Court relying upon decision in Kamatchi's case., has held that the petition under Section 482 of Cr.P.C. challenging the proceeding initiated under Section 12 of the D.V. Act is not maintainable. In my view, therefore, it cannot be said that Hon'ble Apex Court in Kamatchi's case, has not considered the issue of maintainability of the proceeding under Section 482 of Cr.P.C. The Full Bench of Madras High Court has heavily relied upon decision in Kamatchi's case (supra) to conclude that petition under Section 482 of Cr.P.C challenging the proceeding under Section 12 of D.V. Act is not maintainable.
20. I am conscious of the fact that the Full Bench decision of Bombay High Court is binding on this Court. The question involved in this case is whether reliance can be placed on the decision of the Full Bench of Bombay High Court in view of the law laid down by the Hon'ble Apex Court in Kamatchi's case (supra). The Full Bench of Madras High Court, relying upon the decision in Kamatchi's case, has held that Hon'ble Apex Court with certainty has stated that the proceeding under Section 12 of the D.V. Act cannot be equated with the complaint filed under the Code of Criminal Procedure and therefore, the proceeding under Section 482 of Cr. P.C. challenging the proceeding under Section 12 of the D.V. Act, is not maintainable. In my view, the decision of Hon'ble Apex Court in Kamatchi's case has now settled the legal position on this issue. It is binding on this Court. In this background, reliance placed by the learned advocates for the applicants on the Full Bench of Bombay High Court in Nandkishor Vyawahare's case (supra) needs appreciation. In my view, in the backdrop of the law laid down by Hon'ble Apex Court in Kamatchi's case (supra), the submissions advanced by the learned advocates for the applicants relying upon the Full Bench decision of Bombay High Court cannot be sustained. It is to be noted that paragraph 53 from the Patil-SR (ch)/sam 11 of 21 APL 928-22 Reference-1.doc decision of the Full Bench of Bombay High Court was reproduced in paragraph 46 of the decision of the learned Single Judge of Madras High Court in Dr. P. Pathmanathan's case (supra) It needs to be stated that in paragraph 46, a mistake appears to have been committed while stating the names of the parties. The names of the parties have been stated as Prabhakar Mohite v. State of Maharashtra. In fact, Full Bench decision of Bombay High Court in Nandkishor Pralhad Vyawahare v. Mangala, was relied upon by the learned Single Judge of Madras High Court. Part of paragraph 53 of the decision of Full Bench of this Court in Nandkishor Vyawahare's case (supra) was reproduced in paragraph 46 by the learned Single Judge of the Madras High Court. It is, therefore, apparent that Hon'ble Apex Court while approving the decision in Dr. P. Pathmanathan's case, has taken note of the decision of the Full Bench of Bombay High Court in the case of Nandkishor Vyawahare (supra). It is true that no specific observation has been made by the Hon'ble Apex Court, however the approval of decision in the case of Dr. P. Pathmanathan's case (supra) fortifies the submissions advanced by the learned advocates for the non- applicants that the issue was squarely dealt with by the Hon'ble Apex Court.
21. In my view, therefore, the submissions advanced by the learned advocates for the applicants relying upon the decision of the Full Bench of Bombay High Court in Nandkishor Vyawahare's case (supra) cannot be sustained. Learned advocate Mr. Sirpurkar submitted that the decision of the Full Bench decision is binding on this Court, but if this Court is of the opinion that the conflict in the decisions of the Full Bench of Bombay High Court and Full bench of Madras High Court needs to be resolved, then the matter be referred to the bench of larger strength. In this context it needs to be stated that such a reference would be necessitated if this Court opines that the view of the Full Bench of Madras High Court is the correct view and the view expressed by the Full Bench of Bombay High Court is not the correct view. Here in this case, the question of making reference will not arise because on the same point there is decision of the Hon'ble Apex Court in Kamatchi's case (supra) Patil-SR (ch)/sam 12 of 21 APL 928-22 Reference-1.doc wherein it has been held relying upon the decision of Adalat Prasad's case (supra) that the contention of maintainability of proceeding under Section 482 of Cr. P.C. challenging proceeding under section 12 of the D.V. Act, cannot be entertained. Therefore, in my view, in this case there is no need of reference to the larger bench. The issue can be resolved and answered on the basis of the decision of Hon'ble Apex Court in Kamatchi's case (supra) and acceptance of the said view of Hon'ble Apex Court with necessary elaboration by the Full Bench of the Madras High Court in Arul Daniel's case (supra)."
11. In the case of Dhananjay Mohan Zombade vs Prachi, decided on 18th July 2023, learned Single Judge of this Court [Coram : R. J. Joshi, J.] (Aurangabad Bench) was considering the same issue of maintainability of application under section 482 of Cr.P.C. in view of the decision of Apex Court in Kamatchi (supra). The Learned Single Judge held thus in paragraphs 10, 11, 13 and 15 :
"10. In the backdrop of aforesaid provisions, if the precedents are considered, then it is clear that the Hon'ble Apex Court no doubt, in the case of Kamatchi (supra) has held that the proceedings under the DV Act are essentially in the nature of civil proceedings. It is however, pertinent to note that the said judgment is passed in the context of challenge to the order passed by the Trial Court holding that the proceeding filed before it is barred by limitation. It is held in paragraph No. 20 of the judgment that:
"20. It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence."
Patil-SR (ch)/sam 13 of 21 APL 928-22 Reference-1.doc
11. Thus, by implication applicability of the provision of Section 468 of Code of Criminal Procedure is excluded. In respectful view of this Court, in the said judgment, the issue whether or not the provisions of Section 482 of the Code of Criminal Procedure has application to DV Act, was not involved nor decided therein.
13 Full Bench of this Court in the case of Nandkishor Pralhad Vyawahare v Mangala w/o Pratap Bansar (2018) 3 Mah L.J. 913 has framed issue for consideration i.e. 'whether or not High Court can exercise its powers under Section 482 of Criminal Procedure Code, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005?". While answering the said question it clearly held that the provision of Section 482 of Code of Criminal Procedure has application to DV Act. Considering the law on the point of binding precedents, the Full Bench judgment of this Court binds this Court. The judgment of Full Bench of Madras High Court in the case of Arun Daniel(supra) has persuasive value but it does not bind this Court. For the reasons recorded hereinabove, with utmost respect to the Full Bench of Madras High Court, this Court does not concur with the said judgment.
15. No doubt, the provisions of Section 482 of the Code of Criminal Procedure cannot be invoked as a matter of course. The Hon'ble Apex Court in the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303, has held that if the High Court finds that any proceedings is abuse of process of Court then in that case, non-invocation of provisions of Section 482 of the Code of Criminal Procedure would not be justified. It needs to be recorded that merely because the enactment of DV Act is to provide for more effective protection of the right of woman, it would not mean that a proceedings which is palpably not tenable shall be allowed to be continued. If it is allowed so, then it will be nothing less than sheer abuse of process of Court. Thus, in the considered view of this Court, the present application for quashment of proceeding under DV Act is maintainable."
Patil-SR (ch)/sam 14 of 21 APL 928-22 Reference-1.doc
12. The Co-ordinate benches in the above noted two decisions, have taken conflicting views based on the same decision of Apex Court in Kamatchi (supra) after considering the Full Bench decision of this Court as well as the Full Bench decision of Madras High Court. While the Co-ordinate Bench in Dhananjay Mohan Zombade (supra) has held that in Kamatchi's case, the issue whether or not the provisions of Section 482 of the Code of Criminal Procedure has application to DV Act, was not involved nor decided therein and has followed the Full Bench decision of this Court. Whereas another Co-ordinate Bench in Daya vs State of Maharashtra (supra), has held that the decision in Kamatchi's case has settled the issue and has followed the decision of Full Bench of Madras High Court.
13. It is apparent that divergent views have been taken by two Co-
ordinate Benches of this Court on the issue of maintainability of application under Section 482 of Cr.P.C seeking quashing of proceedings under D.V. Act. As this Court has been presented with two divergent views of benches of equal strength, it will be profitable to refer to the judicial pronouncements on binding precedents. In case of Central Board of Dawoodi Bohra Community v. State of Maharashtra [(2005) 2 SCC 673] the Apex Court has summarized the legal position in paragraph 12 as under :
Patil-SR (ch)/sam 15 of 21 APL 928-22 Reference-1.doc "12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum.
In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted."
14. In the case of Mary Pushpam v. Telvi Curusumary [AIR 2024 SC 714] the Apex Court noted the decision of the Apex Court in State of Punjab v. Devans Modern Breweries Ltd [(2004) 11 SCC 26], which reads thus :
"339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench.
340. In Halsbury's Laws of England (4th Edn.), Vol. 26 at Patil-SR (ch)/sam 16 of 21 APL 928-22 Reference-1.doc pp. 297-98, para 578, it is stated: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow."
15. In the case of Jaisri Sahu v. Rajdewan Dubey [AIR 1962 SC 83] the Apex Court has held in paragraph nos. 9, 10 and 11 as under :
"9. Then there is the question of the practice to be followed when there is a conflict among decisions of Benches of, the same High Court. When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench. In Buddha Singh v. Laltu Singh, the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of a High Court differs from the opinion given by a previous Bench. After referring to Suraya Bhukta v. Lakhshminarasamma and Chinnasami Pillai v. Kunju Pillai, where decisions had been given based on the opinions expressed by Devananda Bhatta in the Smriti Chandrika, the Privy Council observed:
"Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision (Parasara Bhattar v. Rangaraja Bhattar, 1880) IL Rule 2 Mad. 2) of the same court to which Turner, C.J., was also a party. In that case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed. It is usual in such cases where a difference of opinion arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies. Had that course been followed Their Lordships would probably have had more detailed reasoning as as to the change of opinion on the part at least of one Judge". (pp. 622,
623)"
10. Considering this question a Full Bench of the Madras High Court observed in Seshamma v. Venkata Patil-SR (ch)/sam 17 of 21 APL 928-22 Reference-1.doc Narasimharao:
"The Division Bench is the final court of appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England, where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity; See The Vera Cruz (No. 2), ((1884) 9 P.D. 96), Harrison v. Ridgway, ((1925) 133 L.T.
238), Ratkinsky v. Jacobs, ((1929) 1 K.B. 24) and Phillips v.
Copping, ((1935) 1 Κ.B. 15). If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench, for which the rules of this court provide. If this course is not adopted, the courts subordinate to the High Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate courts administering justice, there are the additional factors of the loss of money and the waste of judicial time."
11. Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in Seshammav. Venkata Narasimharaos that the decision of a court of appeal is considered as a general rule to be binding on it. There are exceptions to it, and one of them is thus stated in Halsbury's Laws of England, 3rd Edn., Patil-SR (ch)/sam 18 of 21 APL 928-22 Reference-1.doc Vol. 22, para 1687, pp. 799-800:
"The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a Court of a co- ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords."
In Virayya v. Venkata Subbayyall it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in Bilimoria v. Central Bank of India. The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court. In the result these appeals are allowed and the decrees passed by the trial court restored with costs throughout. One set of hearing costs"
16. The decision of Daya vs State of Maharashtra (supra) was not placed before the bench deciding the case of Dhananjay Mohan Zombade vs Prachi(supra) and was not noticed by the learned Single Judge while deciding the case of Dhananjay Mohan Zombade (supra). One of the course available to this Court in case of divergent views of co-ordinate benches was to adopt the view which according to this Court was required to be followed considering the law of binding Patil-SR (ch)/sam 19 of 21 APL 928-22 Reference-1.doc precedents. However, as held in the case of Jaisri Sahu (supra), the better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow one Bench decision or the other.
17. One of the reasons for adopting the course suggested in Jaisri Sahu (supra) is the need for judicial consistency in enunciation of legal principles. By adopting one of the views of the co-ordinate benches, there would not be any authoritative judicial pronouncement on the issue. The importance of judicial consistency cannot be undermined and the issue of maintainability of the application under Section 482 and/or under Article 226/227 of Constitution of India would continue to rear its head in view of the divergent views.
18. In my view, considering the divergent views of Co-ordinate bench expressed in Daya vs State of Maharashtra (supra) and Dhananjay Mohan Zombade vs Prachi (supra), Rule 9A to 9C of the Bombay High Court Appellate Side Rule 1960 is required to be invoked. The Registry is directed to place the matter before the Hon'ble the Chief Justice with a request to place the matter before larger bench to decide the following question of law :
Patil-SR (ch)/sam 20 of 21 APL 928-22 Reference-1.doc "Whether the remedy under Section 482 of Code of Criminal Procedure Code, 1973 and/or under Article 226/227 of Constitution of India is available for purpose of seeking quashing of proceedings filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005 at the stage of issuance of notice in view of the decision of the Hon'ble Apex Court in the case of Kamatchi vs Laxmi Narayanan reported in 2022 SCC Online SC 446?"
[Sharmila U. Deshmukh, J.] Patil-SR (ch)/sam 21 of 21 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 27/02/2024 10:07:00