Gujarat High Court
Megha Amitkumar Patel vs Amitkumar Bhupendrabhai Patel & 4 on 7 April, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/SCR.A/3458/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 3458 of 2012
With
SPECIAL CRIMINAL APPLICATION NO. 1762 of 2012
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MEGHA AMITKUMAR PATEL....Applicant(s)
Versus
AMITKUMAR BHUPENDRABHAI PATEL & 4....Respondent(s)
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Appearance:
BHAVIK R SAMANI, ADVOCATE for the Applicant(s) No. 1
MR.KISHAN PRAJAPATI, ADVOCATE for the Applicant(s) No. 1
MR MANAN A SHAH, ADVOCATE for the Respondent(s) No. 1 - 4
PUBLIC PROSECUTOR for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 07/04/2016
COMMON ORAL ORDER
Both the captioned petitions filed under Articles 226 and 227 of the Constitution are directed against and arise out of common judgment dated 24th April, 2012 passed in Criminal Appeal No. 49 of 2011 and Criminal Appeal No. 54 of 2011, by learned Fourth Additional District Judge, Ahmedabad (Rural), Mirzapur.
2. They were the appeals preferred by the respective parties under Section 29 of the Protection of Women from Domestic Violence Act, 2005, arising out of order passed in Criminal Misc. Application No. 1805 of 2010 by learned Chief Judicial Magistrate under the Act.
3. This Court in Special Civil Application No. 15687 of 2014 being Rameshbhai Ramjibhai Desai vs. State of Gujarat decided on 27th July, 2015 addressed Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed Apr 13 01:15:24 IST 2016 R/SCR.A/3458/2012 ORDER following questions, "(i) Whether against the judgment and order deciding an appeal by Court of Session under Section 29 of the Protection of Women from Domestic Violence Act, 2005, a remedy of revision application under Section 397(1) read with Section 401 of the Code of Criminal Procedure, 1973 is available ?
(ii) Whether, because of what is held by this Court in Narendrakumar alias Nitinkumar Manilal Shah Vs State of Gujarat and another [2014 (2) GLR 1353], a petition under Article 226 of the Constitution, is the remedy to challenge judgment and order in appeal decided under Section 29 of the Protection of Women from Domestic Violence Act, 2005 ?
(iii) Whether the Judicial Magistrate and Court of Session exercising their powers under the Protection of Women From Domestic Violence Act, 2005 are the courts as per the hierarchy of class of criminal courts under the Code of Criminal Procedure, 1973, and can be subjected to the revisional jurisdiction of the High Court under the provisions of the Cr.P.C.?
(iv) Whether on the premise and reasoning that the relief available under the provisions of the Protection of Women from Domestic Violence Act, 2005 are civil in nature, the provisions of the Act exclude the machinery of hierarchy of courts under the Code of Criminal Procedure, 1973, thereby ruling out amenability of judgment of Court of Session under Section 29 of the Act to the revisional jurisdiction of the High Court under the Code of Criminal Procedure, 1973 ?
(v) If the remedy of filing revision application under Section 397(1) read with Section 401 of the Code of Criminal Procedure, 1973 is available, whether against the impugned judgment and order, writ jurisdiction for issuance of writ of certiorari should be allowed to be maintained ?"
3.1 It was held as under, "10. The scheme of the Protection of Women from Domestic Violence Act, 2005, as surveyed hereinabove, suggests that right from the initiation of the proceedings, the remedial machinery is provided before the court of Magistrate of First Class before whom application under Section 12 of the Act would lie, and against the order made by the Magistrate, Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Apr 13 01:15:24 IST 2016 R/SCR.A/3458/2012 ORDER appeal is provided to the Court of Session under Section 29 of the Act. This is in the background of an express provision under Section 27 providing for jurisdiction investing the same with the Court of Judicial Magistrate of First Class or the Metropolitan Magistrate, as the case may be, as well as Section 27 providing that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the Code of Criminal Procedure,1973.
"10.1 The legislature has implanted the provisions of Code of Criminal Procedure, 1973 (2 of 1974) not only for procedural purpose under the Sections which deal with relief orders, but also for the purpose of remedy of appeal, etc. Considering the relevant provisions under the Domestic Violence Act dealing with the application to the Magistrate, jurisdiction, procedure, appeal as well as provisions under Sections 31 and 32 of the Act dealing with the penal aspects and the cognizance and proof, it becomes manifest that though the statute in question in general is one of civil kind and the relief available thereunder is of civil nature, the jurisdiction of the Magistrate and the Court of Session, are under the Code of Criminal Procedure, 1973. They are explicitly made so to operate.
10.2 The Court of Judicial Magistrate or the Metropolitan Magistrate on whom jurisdiction is vested under this Act are the courts mentioned under Section 6 of the Criminal Procedure Code. The Court of Session mentioned in Section 29 of the Act is the Court of Session under Section 6(1) read with Section 9 of Cr.P.C. A Magistrate dealing with the matters under the Domestic Violence Act and a Sessions Judge entertaining and deciding appeal under Section 29 of the Act are clothed with all the powers of the criminal courts under the Code they have all attributes, power and functional sphere of criminal courts under the Code. They are the classes of courts to be treated as inferior criminal courts, amenable to the revisional jurisdiction under Section 397(1) and Section 401, Cr.P.C.
10.3 In other words, court of Magistrate or Court of Session under the Domestic Violence Act are courts which exist and function under the Cr.P.C. They are vested with full-fledge adjudicatory as well as procedural powers under the Cr.P.C. Their functioning is not in a limited role. Neither the Magistrate of the First Class, nor the Court of Session under the Domestic Violence Act are persona designata. The ratio of the Dargah Committee, Ajmer (supra) applies Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Apr 13 01:15:24 IST 2016 R/SCR.A/3458/2012 ORDER with reverse logic.
10.4 The jurisdiction of the Magistrate or the jurisdiction of court of sessions under the Act therefore, are referable to and derived from the Code of Criminal Procedure. The Act in its provisions specifically mentions to be so. Against the orders of the Magistrate, appeal is provided under Section 29 of the Act to the Court of Session. Against the judgment and order in appeal under Section 29, no further appeal or revision is provided in the Act. The provisions of Code of Criminal Procedure, for the revisional powers under Section 397(1) and Section 401, Cr.P.C. would then attract and apply. The remedy of revision under the Cr.P.C. before the High Court has to be held to be available."
4. The Division Bench in Criminal Reference No.6 of 2015 being Suo Motu vs. Ushaben Kishorbhai Mistry decided on 27th November, 2015 confirmed the aforesaid view in Rameshbhai Ramjibhai Desai (supra) as under, "19. In view of the discussion and the observations made by us herein above, once the provision of the Code has been made applicable, it cannot be said that remedy under Section 482 of the Code would be unavailable to the aggrieved person. But the said aspect is again subject to self-imposed restriction of power of the High Court that when there is express remedy of appeal available under Section 29 before the court of Session or revision under Section 397, the Court may decline entertainment of the petition under Section 482 of the Code. But such in any case would not limit or affect the inherent power of the High Court under Section 482 of the Code. Hence, the view taken by the learned single Judge in the case of Narendrakumar (supra), cannot be said to be correct, since in the said case, proceeding under Sections 18, 19, 20 and 21 under the Act were already initiated and the applicability of the Code as per the above-referred observation and discussion had already started.
20. In the case of Rameshbhai R. Desai (supra), since the proceedings under the Act had already started and concluded, the applicability of the Code to such proceedings was an undisputed position. Not only that, but an appeal was preferred under Section 29 of the Act before the learned Sessions Judge and failed, against Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Apr 13 01:15:24 IST 2016 R/SCR.A/3458/2012 ORDER which a petition under Article 226 of the Constitution was preferred. Once express remedy was available to the litigant under the Code and this Court has declined to entertain the petition under Article 226 of the Constitution, the view taken by the another learned single Judge cannot be said to be incorrect."
4.1 The Division Bench drew following conclusions, "27. In view of the aforesaid observations and discussion, the following conclusions:
(i) The provisions of the Act provide for remedial measures for civil rights of women but the machinery provided is through criminal court.
(ii) Initiation of proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act would begin only when the Magistrate has passed any judicial order including of issuance of notice for hearing.
(iii) Any person affected by any proceedings under the Act, prior to initiation of proceedings under Section 12 of the Act may prefer Special Criminal Application under Article 226 of the Constitution if as per him, the proceedings are beyond the scope and ambit of the Act or without any authority in law. But this Court, while entertaining the petition under Article 226 of the Constitution may decline entertainment of the petition by way of self-imposed restriction in exercise of the judicial powers or may decline entertainment of the petition in exercise of its sound judicial discretion.
(iv) Once proceedings are initiated under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 either independently or jointly on account of any judicial order passed by the learned Magistrate including issuance of notice, such proceedings shall be governed by the Code of Criminal Procedure coupled with the power of the Court under Section 28(2) to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23 of the Act.
(v) Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available. But the higher forum under the Code of Criminal Procedure, may be the Court of Session or the Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed Apr 13 01:15:24 IST 2016 R/SCR.A/3458/2012 ORDER High Court, may decline entertainment of such proceedings considering the facts and circumstances of the case and as per the settled principles of law and in accordance with law.
(vi) The aforesaid remedial measures provided under the Code of Criminal Procedure would also include the powers of this Court under Section 482 of the Code, but the Court may, in a given case, decline entertainment of the petition when there is express remedy provided under the Code of Criminal Procedure or no case is made out to prevent the abuse of process of any Court, or no case is made out to secure the ends of justice."
5. On carefully going through the impugned judgment in Appeals, no ground, much less error of jurisdiction was noticed, which may warrant exercise of writ powers. As the impugned judgment is amenable to availability of Revision Application under the Criminal Procedure Code, 1978, the respective petitioners have to avail the said remedy only.
6. Accordingly, without going into the merits, both the Special Criminal Applications stand dismissed on the aforesaid ground, consideration and reasons. Notices in both are discharged.
(N.V.ANJARIA, J.) chandrashekhar Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Apr 13 01:15:24 IST 2016