Himachal Pradesh High Court
Reserved On: 8.11.2024 vs Anju Bala on 20 November, 2024
2024:HHC:11843
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 666 of 2021
Reserved on: 8.11.2024
Date of Decision: 20.11.2024.
Sachin Dogra ...Petitioner
Versus
Anju Bala ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : M/s Ram Gautam, Ashok Thakur
and S.D. Gill, Advocates.
For the Respondent : Mr. Ashwani Kumar Sharma,
Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition seeking
quashing of the application filed by respondent No.1 (aggrieved
person) under Section 12 of the Protection of Women from
Domestic Violence Act (hereinafter referred to as the DV Act).
This Court delivered a judgment in Sanjeev Kumar and others Vs.
Sushma Devi, Latest HLJ 2023 (HP) (1) 777 = 2023(3) Him. L.R. 1359
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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holding that a petition under Section 482 of Cr.P.C. does not lie in
the proceedings arising out of the DV Act; hence, the matter was
listed for hearing the parties on the question of maintainability.
2. I have heard M/s Ram Gautam, Ashok Thakur and S.D.
Gill learned counsel for the petitioner, and Mr Ashwani Kumar
Sharma learned counsel for the respondent.
3. Mr Ram Gautam, learned counsel for the petitioner,
submitted that the judgment delivered by this Court in Sanjeev
Kumar and others (supra) is required to be referred to a larger
Bench because it ignores Section 28 of the DV Act and other
relevant judgments delivered by different Courts and only relies
upon the judgment of Madras High Court in Arul Daniel Vs.
Suganya (2022) SCC Online Madras High Court 35. The other High
Courts have also examined this question and have taken different
views regarding the applicability of Section 482 of Cr.P.C. to
proceedings arising under the DV Act. Therefore, this question is
required to be decided authoritatively once and for all. He relied
upon the following judgments in support of his submissions: -
(i) Chandavarkar Sita Ratna Rao Vs. Ashalata S. Gurnam
1986 (4) SCC 447.
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(ii) State of Haryana and others Vs. Ch. Bhajan Lal and
others, 1992 AIR 604.
(iii) M/s Pepsi Foods Ltd. and another Vs. Special Judicial
Magistrate & others, AIR 1998 SC 128.
(iv) M/s Estralla Rubber vs. Dass Estate (Private) Ltd., AIR
2001 SC 3295.
(v) Ouseph Mathai & Ors. M. Abdul Khadir, AIR 2002 SC 110.
(vi) Surya Dev Rai Vs. Ram Chander Rai & Ors., AIR 2003 sc
3044.
(vii) Chandrawati Devi & Ors. Vs. The State of Bihar and Anr.,
Cr. Misc. No. 7165 of 2008, decided on 29.4.2010.
(viii) Interjit Singh Grewal Vs. State of Punjab & Anr., 2011 AIR
SCW 6259.
(ix) Ashish Dixit & ors. Vs. State of U.P. and Anr., Cr. Appeal
No. 43 of 2013, decided on 7.1.2013.
(x) Smt. Geeta and Ors. The State of U.P. and another, Case
No. 6054 of 2013, decided on 10.3.2014.
(xi) Azad Singh Ghangas Vs. Suman Kumari, Crl. Misc. No.
M-6765 of 2015, decided on 14.3.2016.
(xii) Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy
Swarna Kumari, Crl. Appeal No. 516 of 2016, decided on
18.4.2016.
(xiii) Amit Agarwal and others Vs. Sanjay Aggarwal and others,
Crl. Misc. Pet. No. 36736 of 2024, decided on 31.5.2016.
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(xiv) Santosh Kumar Vs. State of Bihar and another, 2018 Cri.
L.j. 1553.
(xv) Vijita Salotra Kumar Vs. Neha Malviya and others,
M. Cr. C. No. 7829 of 2015, decided on 23.8.2018.
(xvi) Kamatchi Vs. Lakshmi Narayanan, Cr. Appeal No. 627 of
2022, decided on 13.4.2022.
(xvii) Arul Daniel Vs. Suganya (2022) SCC Online Madra High
Court 35.
(xviii) Hitesh Mahanta and others Vs. State of Assam and
another, Cr. Pet. No. 228 of 2021, decided on 6.2.2023.
(xix) Dhananjay Mohan Zombade and others Vs. Prachi, Cr.
Application No. 312 of 2023, decided on 18.7.2023.
(xx) Sanjeev Kumar and others Vs. Sushma Devi, Cr. Revision
No. 132 of 2021, decided on 1.6.2023.
(xxi) Sanjeev Ramesh Doshi and others Vs. State of
Maharashtra and another, Cr. Application No. 928 of
2022, decided on 26.2.2024.
(xxii) Nandkishor Prahlad Vyawahare Vs. Sau. Mangala, Cr.
Application No.578 of 2011, decided on 3.5.2018.
(xxiii) Lincen Louis Thommana and others Vs. Leena Lincen
Thommana and others, along with connected matters,
Cr. Application No. 928 of 2022, decided on 26.2.2024.
(xxiv) A. Ramesh Babu and others Vs. Smt. Dharani S., Cr.
Petition No. 3578 of 2022, decided on 28.6.2024.
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4. Mr Ashwani Kumar Sharma, learned counsel for the
respondent, submitted that the question was examined
exhaustively by the Madras High Court and the judgment of
Madras High Court was followed by this Court in Sanjeev Kumar
(supra). There is no need to revisit the judgment, especially when
the judgment has been circulated amongst the Courts in
Himachal Pradesh, and they are consistently following it. Hence,
he prayed that the petition be held to be not maintainable.
5. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
6. The judgments in Chandavarkar (supra), Estralla
Rubber (supra), Ouseph Mathai (supra) and Surya Dev Rai (supra)
deal with the power of the High Court under Article 227 of the
Constitution of India. The judgment in Bhajan Lal (supra) deals
with the power of the High Court under Section 482 of CrPC. The
judgment in M/S Pepsi Food Limited (supra) deals with the
jurisdiction of the Magistrate to summon the accused. Inderjit
Singh Grewal (supra), Geeta (supra), Azad Singh (supra), Amit
Agarwal (supra), Santosh Kumar (supra), Vijita Salotra (supra),
and Ashish Dixit (supra) did not decide the question of the
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applicability of the Section 482 CrPC to the proceedings under DV
Act; hence, these judgments are not relevant to the controversy
pending in the present proceedings.
7. Madras High Court held in P. Pathmanathan Vs. Tmt. V.
Monica (2021) SCC Online Mad. 8731 that the DV Act was enacted to
enforce civil remedy by a Magistrate who is not a Criminal Court
and not amenable to the proceedings under Section 482 of Cr.P.C.
This view was affirmed by the Full Bench of Madras High Court in
Arul Daniel (supra). Hon'ble Supreme Court also approved the
special nature of the proceedings under the DV Act noticed in P.
Pathmanathan (supra) in Kamatchi v. Lakshmi Narayanan, (2022)
15 SCC 50.
8. A full Bench of the Bombay High Court, on the other
hand, held in Nandkishor Prahlad Vyawahare Vs. Sau. Mangala,
(2018) Cr.LJ 2992 that the proceedings under the DV Act are civil
but regulated by the Criminal Procedure Code under Section 28 of
the DV Act; therefore, it will be incongruous to say that the rest of
Cr.P.C. applies to the proceedings under D V Act but Section 482 of
Cr.P.C. does not apply. A similar view was taken in Dhananjay
Mohan Zumbade (supra). Incidentally, the judgment of the
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Bombay High Court in Nandkishor (supra) has been referred to a
Larger Bench of five Judges in Criminal Application in Lincen
Louis Thommana (supra) and the result of the reference is still
awaited.
9. Gauhati High Court held in Dhanpati Das and Ors. vs.
State of Assam and Ors. MANU/GH/0269/2023 that the proceedings
under the DV Act are civil except when they relate to a breach of a
protection order or an interim protection order punishable under
Section 31, even though they are conducted by a Magistrate. The
jurisdiction under Section 482 of CrPC can be exercised in
extremely extraordinary cases. A similar view was taken in Hitesh
Mahanta (supra).
10. A Division Bench of the Gujarat High Court held in Suo
Motu v. Ushaben Kishorbhai Mistry, 2015 SCC OnLine Guj 6262 that
the proceedings under the DV Act are civilly triable by a
Magistrate. However, Section 28 of the DV Act applies the
provisions of Cr.PC to the proceedings under the DV Act. Hence,
Section 482 of Cr.P.C. cannot be excluded from the proceedings
under the DV Act.
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11. Patna High Court held in Chandrawati Devi (supra)
that Section 482 of CrPC applies to the proceedings under the DV
Act but the power under Section 482 of CrPC is to be exercised
sparingly.
12. Karnataka High Court, on the other hand, held in
Oliver Menezes vs. Serita Therese Mathias MANU/KA/2078/2021 that
the proceedings under the DV Act are civil. Hence, Section 482 of
Cr.P.C. does not apply to such proceedings. A different view was
taken in A. Ramesh Babu and Ors. vs. Dharani S.
MANU/KA/1941/2024 and it was held that when the entire
proceedings are sought to be quashed, the party can take recourse
to Section 482 of Cr.P.C. Another Bench of the same High Court
held in Balasaheb Patil and Ors. vs. Soni and Ors.
MANU/KA/3010/2024 that Section 482 of Cr.P.C. does not apply to
the proceedings under the DV Act and these proceedings can be
challenged by filing a writ petition.
13. Madhya Pradesh High Court held in Ankit Gehlot and
Ors. vs. Anjali, MANU/MP/1039/2024 that the proceedings under
the DV Act are civil, but inherent power under Section 482 of
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Cr.P.C. can be invoked for redressal of grievances arising from the
orders passed in the proceedings under the Act.
14. Allahabad High Court held in Suman Mishra v. State of
U.P., 2024 SCC OnLine All 3931 that the proceedings under the DV
Act are civil and a petition filed under Section 482 of CrPC will not
be maintainable to challenge those proceedings.
15. Andhra Pradesh High Court held in Muvva Bhargav and
Ors. vs. The State of Andhra Pradesh and Ors., MANU/AP/0466/2023
that the concept of limited applicability of Cr.P.C. cannot be
accepted and petition under Section 482 of Cr.P.C. can be filed
regarding the proceedings under the DV Act, even though the
proceedings are civil.
16. Jammu & Kashmir High Court held in Khalid Amin
Kohli vs. Union Territory of J&K. and Ors., MANU/JK/0763/2023 that
a petition under Section 482 of Cr.P.C. cannot be filed in respect of
the proceedings arising under DV Act and recourse has to be taken
to a petition under Article 227 of the Constitution of India.
17. Meghalaya High Court held in Abhishek Agarwala and
Ors. vs. Komal Poddar, MANU/MG/0047/2023 that the proceedings
under the DV Act are civil.
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18. Calcutta High Court held in Chaitanya Singhania v.
Khusboo Singhania, 2021 SCC OnLine Cal 2602 that the relief under
the DV Act is civil; however, Section 28 applies CrPC to such
proceedings, and consequently, Section 482 of Cr.P.C. applies to
such proceedings. This view was reiterated in Narayan Biswas v.
State of W.B., 2024 SCC OnLine Cal 1926.
19. A Division Bench of Punjab & Haryana High Court held
in Hemant Bhagat and others Vs. Prekshi Sood Bhagat (2024)
PHHC:140559-DB that the proceedings are civil, but since Section
28 of the DV Act makes the provisions of Cr.P.C. applicable to the
proceedings under DV Act; therefore, the provisions of Section
482 of Cr.P.C. apply to the proceedings under DV Act.
20. It is apparent from the judgments of High Courts that
they have proceeded basically on two reasoning: Bombay High
Court held that even though the proceedings are civil, the
provisions of Cr.P.C. have been made applicable by Section 28 of
the DV Act; therefore, the provisions of Section 482 of Cr.P.C. will
apply to the proceedings under the DV Act. Madras High Court, on
the other hand, proceeded on the basis that since the proceedings
are civil, Section 482 of Cr.P.C. cannot be applied to such
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proceedings. This Court, while deciding Sanjeev Kumar (supra),
has followed the reasoning of the Madras High Court. Since it has
been submitted that the reasoning of this Court is required to be
revisited, it has become necessary to take a fresh look at both the
reasonings and arrive at an independent conclusion.
21. It was laid down by the Hon'ble Supreme Court in State
of W.B. v. Sujit Kumar Rana, (2004) 4 SCC 129: 2004 SCC (Cri) 984:
2004 SCC OnLine SC 94 that the inherent power of the High Court
under Section 482 of Cr.P.C. can be exercised in relation to the
proceedings pending before the Criminal Court. It was observed
at page 140: -
"33. From a bare perusal of the aforementioned
provision, it would be evident that the inherent power of
the High Court is saved only in a case where an order has
been passed by the criminal court which is required to be
set aside to secure the ends of justice or where the
proceedings pending before a court amount to an abuse
of the process of the court. It is, therefore, evident that
power under Section 482 of the Code can be exercised by
the High Court in relation to a matter pending before a
court; which in the context of the Code of Criminal
Procedure would mean "a criminal court" or whence a
power is exercised by the court under the Code of
Criminal Procedure. Once it is held that the criminal court
had no power to deal with the property seized under the
Act, the question of the High Court exercising its
jurisdiction under Section 482 of the Code of Criminal
Procedure would not arise."
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22. This position was reiterated in State of Punjab v.
Davinder Pal Singh Bhullar, (2011) 14 SCC 770: (2012) 4 SCC (Civ)
1034: (2012) 4 SCC (Cri) 496: (2014) 1 SCC (L&S) 208: 2011 SCC
OnLine SC 1545 wherein it was observed at page 796:
"51. The inherent power of the court under Section 482
CrPC is saved only where an order has been passed by the
criminal court which is required to be set aside to secure
the ends of justice or where the proceeding pending before
a court, amounts to abuse of the process of court.
Therefore, such powers can be exercised by the High Court
in relation to a matter pending before a criminal court or
where power is exercised by the court under CrPC. Inherent
powers cannot be exercised assuming that the statute
conferred an unfettered and arbitrary jurisdiction, nor can
the High Court act at its whim or caprice. The statutory
power has to be exercised sparingly with circumspection
and in the rarest of rare cases. (Vide Kurukshetra
University v. State of Haryana [(1977) 4 SCC 451: 1977 SCC
(Cri) 613: AIR 1977 SC 2229] and State of W.B. v. Sujit Kumar
Rana [(2004) 4 SCC 129: 2004 SCC (Cri) 984].)
23. This Court also took a similar view in Devinder
Chauhan v. State of H.P., 2011 SCC OnLine HP 5394 and observed:
23. In D. Venkatasubramaniam v. M.K. Mohan
Krishnamachari (2009) 10 SCC 488, it has been held that the
inherent power of the High Court is saved to interfere with
the proceedings pending before a criminal court if such
interference is required to secure the ends of justice or
where the continuance of the proceedings before a court
amounts to abuse of the process of the court. Such a power
under Section 482 of the Code is always available to the
High Court in relation to a matter pending before a
criminal court. The Supreme Court in State of West
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Bengal v. Sujit Kumar Rana (2004) 4 SCC 129 it has been
observed as follows: -
"From a bare perusal of the aforementioned
provision, it would be evident that the inherent
power of the High Court is saved only in a case where
an order has been passed by the criminal court which
is required to be set aside to secure the ends of justice
or where the proceedings pending before a court
amount to an abuse of the process of Court. It is,
therefore, evident that power under Section 482 of
the Code can be exercised by the High Court in
relation to a matter pending before a court; which in
the context of the Code of Criminal Procedure would
mean "a criminal court" or whence a power is
exercised by the court under the Code of Criminal
Procedure. Once it is held that the criminal court had
no power to deal with the property seized under the
Act, the question of the High Court exercising its
jurisdiction under Section 482 of the Code of
Criminal Procedure would not arise."
24. Therefore, it becomes necessary to determine whether
the proceedings under the DV Act are pending before a Criminal
Court or not.
25. Black's Law Dictionary (9th Edition) defines a criminal
court as "A court with jurisdiction over criminal matters". An
earlier edition of the same dictionary (3rd Edition) defines
criminal court as, "One where criminal cases are tried and
determined, not one where civil cases are tried, or persons
charged with criminal offences are held for action by proper
authority." Thus, the nature of the proceedings is to be seen to
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find out whether the court is a criminal court or not and it is
fallacious to determine the nature of the court by looking at the
person exercising the jurisdiction.
26. This principle was also laid down by the Judicial
Committee of the Privy Council in Annie Besant v. Advocate-
General of the Government of Madras, 1919 SCC OnLine PC 26 :
(1918-19) 23 CWN 986 : (1918-19) 46 IA 176 : (1919) 10 LW 451: AIR
1919 PC 31 : (1919) 17 All LJ 925 : (1919) 37 Mad LJ 139 and it was
held that a Magistrate conducting the proceedings under the
Press and Registration of Books Act, 1867 is not an inferior
Criminal Court as amenable to revisional jurisdiction. It was
observed at page 994: -
"It is not easy to see how these proceedings could be
deemed criminal proceedings within the Code of Criminal
Procedure. They are not proceedings against the Appellant
as charged with an offence. They are at the utmost
proceedings which rendered the Appellant if she should
thereafter commit a criminal or forbidden act, open to a
particular form of procedure for a penalty.
In any view, as their Lordships have intimated their
opinion that the magistrate in withdrawing the order of
dispensation was not acting judicially, it follows that this is
not a case for revision under the Code of Criminal
Procedure."
27. In V.B. D'Monte v. Bandra Borough Municipality, 1950
SCC OnLine Bom 34: ILR 1950 Bom 522: (1950) 52 Bom LR 537: AIR
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1950 Bom 397: 1951 Cri LJ 1411, a Full Bench of Bombay High Court
held that a Criminal Court may be constituted as a Court
designate and civil jurisdiction may be conferred upon that Court.
When the Criminal Court exercises a civil jurisdiction, it is not an
inferior Criminal Court within the meaning of Criminal
Procedure, and no criminal revision lies against the order passed
by said Court. It was observed at page 526: -
"In our opinion, it is unnecessary to consider whether a
revisional application would lie under s. 435 from a
decision of a Magistrate under s. 110 of the Bombay
Municipal Boroughs Act (Bom. XVIII of 1925), 1925. In
exercising our revisional power we are not exercising the
jurisdiction conferred upon us under s. 435 of the Criminal
Procedure Code. We are exercising a special jurisdiction
which is conferred upon us under s. 110 of the Bombay
Municipal Boroughs Act of 1925. Therefore, the only
question that we have to consider is whether in exercising
that special jurisdiction under s. 111 we should exercise it
on the civil side or the criminal side. Now it cannot be
disputed that the subject matter of the decision of the
Magistrate is a purely civil matter. He is dealing with rates and
taxes. He is not exercising any criminal jurisdiction, nor is he
dealing with any criminal matter. Therefore when the matter
comes before us in revision, it is a matter which is civil in its
nature; and we see no reason why such a matter should be
entertained on the criminal side of the High Court and not on
the civil side.
Various decisions were cited at the bar, and I shall briefly
consider them. But as I shall point out these decisions were
more concerned with deciding whether a matter lay in
revision under s. 435 of the Criminal Procedure Code or
under s. 115 of the Civil Procedure Code. In all these cases
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no special jurisdiction was conferred upon the High Court,
and therefore the High Court had to determine the nature
and extent of its revisional jurisdiction; and in order to
determine that the learned Judges who decided those cases
had to consider whether the applications lay under s. 435 of
the Criminal Procedure Code or under s. 115 of the Civil
Procedure Code. The decision which has been now accepted
as laying down the correct principle and which had been
followed in several decisions of this Court is to be found
in Lokmanya Mills Ltd. v. Municipal Borough, Barsi. [(1939)
41 Bom. L.R. 937.] In that case the decision under s. 110 was
given by the First-Class Magistrate, Barsi, and a revision
under s. 111 lay to the Sessions Court. The question then
arose as to whether any revisional application lay from the
decision of the Sessions Court, and Sir John Beaumont,
sitting with Mr Justice N.J. Wadia, held that a revisional
application lay under s. 115 of the Civil Procedure Code; and
in coming to that conclusion the learned Chief Justice
observed that "the question of liability to tax is a purely
civil matter, and the Magistrate hearing an appeal against
a demand notice is a criminal Court, so that an appeal lies
from him to the Sessions Court, and not to the District
Court, and revision lies from the Sessions Court to the High
Court as a civil revisional application. The learned Chief
Justice approved the earlier decision in Ahmedabad
Municipality v. Vadilal [(1928) 30 Bom. L.R. 1084.] which lays
down that the Sessions Judge in a case of that sort was
exercising powers of a civil Court and not of a criminal
Court and therefore no revision lay under the Criminal
Procedure Code. Therefore, the clear view taken by the
learned Judges who decided that case was that even a
criminal Court may exercise civil jurisdiction and may
dispose of civil matters if so authorised by a statute. The
earliest decision in which a similar view has been taken is a
decision in In re Dalsukhram. [(1907) 9 Bom. L.R. 1347.]
There the Court was considering s. 86 of the Bombay
District Municipal Act, 1901, which is analogous to the
provisions in the Bombay Municipal Boroughs Act of 1925;
and Mr Justice Chandavarkar and Mr Justice Knight held
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that a Magistrate hearing an appeal of the kind mentioned
in s. 36 of the Bombay District Municipal Act of 1901 is
merely an appellate authority having jurisdiction given by
the Act to deal with the question of civil liability and
therefore he is not an inferior criminal Court, and the Court
held that no revision lay against his decision under s. 435
of the Criminal Procedure Code. The same view has been
taken in Ahmedabad Municipality v. Vadilal, [(1928) 30 Bom.
L.R. 1084.] to which I have already referred, by Mr. Justice
Patkar and Mr. Justice Murphy, that under s. 86 matter
related to civil liability, and they held that no revisional
application lay under s. 435 of the Criminal Procedure
Code.
The only decision to which our attention has been drawn,
which seems to take a contrary view, is one reported
in Emperor v. Devappa Ramappa. [(1918) 43 Bom. 607, S.C.21
Bom. L.R. 277.] In that case, a Magistrate was dealing with a
matter under the Workmen's Breach of Contract Act, 1859;
and a division bench consisting of Mr. Justice Heaton and
Mr Justice Pratt took the view that a revisional application
against his decision lay under ss. 435 and 439 of the
Criminal Procedure Code, and the test that the bench
applied was not the nature of the proceedings held by the
Court, but the nature of the Court in which the proceedings
were held; and according to these learned Judges as the
Court in which the proceedings were held was a criminal
Court and an inferior criminal Court, the High Court had
the power of revision under s. 435 of the Criminal
Procedure Code. Now, with great respect to the learned
Judges who decided this case, this view seems to be
contrary to the view taken in the earlier decision, to which I
have just drawn attention, In re Dalsukhram, [(1907) 9 Bom.
L.R. 1347.] and this decision was not referred to or
considered. This case, viz. Emperor v. Devappa Ramappa,
[(1918) 43 Bom. 607, S.C.21 Bom. L.R. 277.] seems to stand by
itself and it has taken a view which has not found favour
with the other learned Judges who have considered this
question. The better view seems to be that a criminal Court
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may be constituted as a Court designata and civil
jurisdiction may be conferred upon that Court. If a criminal
Court exercises that jurisdiction, then it is not necessarily
an inferior criminal Court within the meaning of the
Criminal Procedure Code; and if a right of revision is given
from a decision of such a Court, then that revisional
application is civil in its character and not criminal. That is
the only limited question that we have to consider in this
case. As I stated before, we are not considering whether a
revisional application lies under s. 435 of the Criminal
Procedure Code or under s. 115 of the Civil Procedure Code.
All that we are considering is whether a special jurisdiction
conferred upon us is of a civil or a criminal character; and
on that question, there can be no dispute that it is of a civil
nature.
28. It was held by Madras High Court in R. Subramaniam v.
Commissioner of Police, 1963 SCC OnLine Mad 249: AIR 1964 Mad
185: (1964) 1 Cri LJ 519 that in order to constitute a Criminal Court,
the Court should not only be mentioned as the Criminal Court
under Cr.P.C. but it should also be acting as a Criminal Court. It
was observed at page 187:
"6. Section 6 of the Cr PC classifies the criminal Courts.
The Presidency Magistrate is one of the Courts mentioned
in the section. Under Section 21 of the Cr PC, the Chief
Presidency Magistrate is empowered to exercise all the
powers conferred on him by the Code or by any law or rule
in force immediately before the Code came into force. Thus
the Chief Presidency Magistrate is a Court constituted
under the Code of Criminal Procedure. Under Section 435 of
the Cr PC, the High Court may call for and examine the
record of any proceeding before any inferior criminal Court
for the purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or order
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recorded or passed and as to the regularity of any
proceedings of such inferior Court. The power of revision is
conferred on the High Court to call for and examine the
record of "any inferior Criminal Court". The section,
therefore, requires that the Court whose order is sought to
be revised should be an inferior criminal Court and that
any finding, sentence or order passed and the regularity of
the proceedings can be examined by the High Court. To
constitute a criminal Court it is not sufficient that it is one
of the Courts mentioned in Section 6 of the Cr PC. It must
be acting as a criminal Court. The magistrate may be acting
under his executive or administrative capacity or the
powers 'conferred on him by some other law. These
proceedings are not that of a Court and are not revisable.
The magistrate should be acting as a Court and the
proceeding that is sought to be revised should be a judicial
proceeding. Under the Code, the magistrate is empowered
to act judicially as well as in his administrative capacity.
The orders that can be revised are those that are passed in
judicial proceedings. "Judicial proceedings" is defined in
Section 4(m) of the Cr PC as including any proceeding in
the course of which evidence is or may be legally taken on
oath. The definition is an inclusive one. Under "Judicial
proceeding" the acts of the Court which are passed
judicially, that is after hearing the parties, and which affect
the rights of parties will be included.
***
22. A Presidency Magistrate or a First Class Magistrate,
who is trying an offence under Section in of the Kerala
General Sales Tax Act, is admittedly a criminal Court
exercising jurisdiction under the Code of Criminal
Procedure, and as already observed the conviction and
sentence passed by the Magistrate is clearly revisable. The
Court, while convicting and passing a sentence of fine also
specifies the tax as recoverable as a fine. Under Section 21
of the Kerala General Sales Tax Act, it is provided that the
assessment levied shall not be questioned by a criminal
Court. It is difficult to appreciate the argument that the
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magistrate, while convicting and sentencing an assessee to
a fine, acts as a Court but when the magistrate proceeds to
write the next line in his order specifying the tax due as
recoverable as a fine, he is not doing it as a Court but only
as a persona designata. In ILR 43 Bom 864 : (AIR 1919 Bom
93), already referred to the High Court of Bombay, while
dealing with Section 161(1) of the District Municipalities
Act, held that, though the power exercisable by the
Magistrate under the first part of the section was judicial
and the latter part ordinarily ministerial in nature, no
differential treatment was intended in respect of the orders
made by the Magistrate under sub-section (2). The above
decision was not followed in ILR 1956-2 All 60 : ((S) AIR
1956 All 351). The Allahabad High Court was unable to agree
that a proceeding under the latter part of Section 161(2)
relating to the recovery of compensation and other
expenses was one before a criminal Court, merely because
the proceeding in prosecution under the earlier part was
undoubtedly before a criminal Court. The Allahabad High
Court also held that it did not follow that because a
subsequent proceeding was before an inferior criminal
court, the earlier proceeding also was before the criminal
court when the two proceedings were entirely distinct from
each other. The Supreme Court in AIR 1962 SC 574 refrained
from expressing its opinion on the conflicting stand taken
by the Bombay High Court and the Allahabad High Court.
The Supreme Court held that in the case before it the
proceeding before a magistrate was only a proceeding in
the nature of recovery proceeding and was of a civil nature.
The Supreme Court held that a magistrate, who
entertained an application and held an enquiry because he
was designated on that behalf must be treated as a persona
designata and not as a magistrate functioning; and
exercising his authority under the Code of Criminal
Procedure. In the present case, as already observed, the
Magistrate was exercising the functions as a Court, trying
the assessee, convicting and sentencing him and in
addition specifying that the arrear of tax is recoverable as a
fine. Taking all the circumstances of the present case into
21
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consideration. I would respectfully follow the view of the
Bombay High Court in ILR 43 Bom 864 : (AIR 1919 Bom 93)
and hold that the direction of the Magistrate specifying the
arrears of tax as recoverable as a fine is an order of an
inferior criminal Court revisable under Section 435 of the
Cr PC.
23. Section 435 of the Cr PC provides that the High Court
may call for and examine the record of any proceeding
before any inter-criminal court for examining the
correctness, legality or propriety of any finding, sentence
or order passed and as to the regularity of any proceedings
of such criminal Court. Though the order specifying the
arrears of tax as recoverable as a fine is not a finding or
sentence, it is an order made by a criminal court. It is not
necessary that every order of a criminal Court should be
criminal in nature, for, in which case, the order passed by a
Magistrate under Sections 145, 488 and 517 of the Cr PC
will not be revisable. Section 435 clause (3) as it stood
before the amendment of 1923 specifically excluded from
the High Courts the revision of orders under Section 145,
thus implying that but for that specific exclusion, all orders
passed by another Criminal Court which would affect the
rights of parties are revisable by High Court. The
Magistrate was acting under the Code of Criminal
Procedure and was passing an order which had the effect of
adjudicating judicially the liability of the assessee to pay
the tax.
29. A Full Bench of Kerala High Court held in Mammoo v.
State of Kerala, 1979 SCC OnLine Ker 110: 1979 KLT 801: AIR 1980 Ker
18: 1979 KLT (SN 126) 59: 1980 Cri LJ (NOC 75) 31 that a Court of
District Magistrate exercising the power under Indian Telegraph
Act cannot be called a criminal court merely because he exercises
22
2024:HHC:11843
the functions of a Magistrate mentioned in Section 6 of CrPC. It
was observed at page 804:
"12. S. 6 of the Code defines the class of courts and
Executive Magistrate is one such. Should that mean that in
any and every case where he functions, he does function
only as a court. Should it be said that even where he
functions administratively and passes an order which is
not judicial, he functions as a court. We think not. When an
Executive Magistrate exercises functions which are purely
of an administrative or executive character, he does not
perform the role of a court. We cannot accede to the
extreme position canvassed by learned counsel for the
petitioners in these cases that, irrespective of the nature of
the functions exercised by the District Magistrate under
the Indian Telegraph Act, he must be taken to be exercising
functions of a court since the District Magistrate is one of
the Executive Magistrates constituted under the Code of
Criminal Procedure. Refuting such a contention which
seems to have been urged before it, the Madras High Court
in Subramoniam v. Commr. of Police, AIR. 1964 Mad. 185
observed in paragraph 7 of its judgment thus:
"To constitute a criminal Court, it is not sufficient that
it is one of the Courts mentioned in S. 6 Criminal
Procedure Code. It must be acting as a criminal court.
The magistrate may be acting under his executive or
administrative capacity or the powers conferred on him
by some other law. These proceedings are not that of a
Court and are not revisable. The magistrate should be
acting as a Court and the proceeding that is sought to be
revised should be a judicial proceeding. Under the Code,
the magistrate is empowered to act judicially as well as
in his administrative capacity. The orders that can be
revised are those that are passed in judicial proceedings.
"Judicial proceedings" is defined in S. 4(m) Criminal
Procedure Code as including any proceeding in the
course of which evidence is or may be legally taken on
23
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oath. The definition is an inclusive one. Under "judicial
proceeding" the acts of the Court are passed judicially,
that is after hearing the parties, and which affect the
rights of parties will be included."
13. The Supreme Court had occasion to consider whether a
Magistrate acting under S. 234 of the Ajmer Merwara
Municipalities Regulation, 1925 was acting as an inferior
Criminal Court to the High Court within the meaning of S.
439 of the Code of Criminal Procedure 1898 corresponding
to S. 397 of the 1973 Code. The proceedings that were
initiated before the Magistrate were merely proceedings
for recovery of expenses incurred by reason of the refusal
to comply with the requisition issued to a party by the
Municipal Committee. The nature of the enquiry
contemplated by S. 234 was therefore very limited and
partook only of the character of ministerial enquiry and
not a judicial enquiry. Dealing with this the Supreme Court
in Dargah Committee v. State of Rajasthan, AIR 1962 SC 574
observed in paragraph 6 of its judgment thus:
"In any event, it is difficult to hold that the Magistrate
who entertains the application is an inferior criminal
court. The claim made before him is for the recovery of a
tax and the order prayed for is for the recovery of the
tax by distress and sale of the moveable property of the
defaulter. If at all, this would at best be a proceeding of a
civil nature and not criminal. That is why, we think,
whatever may be the character of the proceeding,
whether it is purely ministerial or judicial or quasi-
judicial, the Magistrate who entertains the application
and holds the enquiry does so because he is designated
in that behalf and so he must be treated as a persona
designata and not as a Magistrate functioning and
exercising his authority under the Code of Criminal
Procedure. He cannot therefore be regarded as an
inferior criminal court. That is the view taken by the
High Court and we see no reason to differ from it."
14. Evidently the Supreme Court was not prepared to hold
that in every case where a Magistrate constituted under the
24
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Code of Criminal Procedure functions he functions as a
court.
15. The Criminal Procedure Code 1872 contained a
definition of the term 'criminal court' though in the later
Codes such definition does not appear. In Act 10 of 1872
'criminal court' is defined to mean and include every judge
or magistrate or body of judges or Magistrates inquiring
into or trying cases or engaged in any judicial proceedings.
"Judicial proceeding" is defined in S. 4(m) of the Code of
Criminal Procedure, 1898 thus:
"4(m) 'judicial proceeding' includes any proceeding in
the course of which evidence is or may be legally taken
on oath."
16. That if a court exercises judicial functions it acts as a
Court is indicated in Thakur Das v. State of M.P., (1978) 1 SCC
27: AIR 1978 SC 1. The question the Supreme Court was
called upon to decide in that case was whether the judicial
authority constituted by the State Government under S. 60
of the Essential Commodities Act to hear appeals against
the order of confiscation that may be made by the licensing
authority under S. 6A is an in inferior criminal court
subordinate to the High Court and amenable to the
Revisional jurisdiction of the High Court. Referring to this
question the Supreme Court observed:
"The Full Bench answered the first question in the
affirmative. While summing up its conclusion, the Court
held that when a judicial authority like an officer who
presides over a court is appointed to perform the
functions, to judge and decide in accordance with law
and as nothing has been mentioned about the finality or
otherwise of the decisions made by that authority, it is
an indication that the authority is to act as a court in
which case it is not necessary to mention whether they
are final or not as all the incidents of exercising
jurisdiction as a Court would necessarily follow. We are
in broad agreement with this conclusion".
25
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17. We think it may not be necessary for the purpose of this
case to define in what all circumstances an authority
functioning under a statute must be taken to function as a
court. Suffice it to say that if the authority is not to exercise
his functions judicially and is acting as an executive or
administrative authority it would not be a court. Therefore,
if in this case, we find that the functions exercisable by the
District Magistrate are not judicial and the process by
which such authority reaches the decision is not any
judicial process he would not be functioning as a court.
23. We have already indicated that the term "criminal
court" has not been defined. S. 211 of the Penal Code, 1860
concerns filing of false charge of offence made with intent
to injure. That section provides that whoever with intent to
cause injury to any person, institutes or causes to be
instituted any criminal proceedings against that person, or
falsely charges any person with having committed an
offence knowing that there is no just or lawful ground for
such proceedings or against that person, shall be punished
with imprisonment of either description for a term which
may extend to two years or with fine, or with both.
"Criminal Proceeding" in that context necessarily refers to
proceedings concerning the commission of an offence.
In Albert v. State of Kerala, AIR 1966 Ker. 11 this Court
observed that when a man sets the criminal law in motion
against a person by giving information to the police that
person has committed a cognizable offence, he institutes a
Criminal Proceeding against that person within the
meaning of S. 211 of the Penal Code, 1860. S. 397 of the
Code of Criminal Procedure itself indicates that pursuant to
the taking up of a revision under that Section the court may
direct that the execution of any order or sentence be
suspended, and if the accused is in confinement, that he be
released on bail or his own bond. It further indicates that
the revision is taken up for the purpose of satisfying itself
as to the correctness, legality or propriety of any finding or
order. In the decision of the Supreme Court in Dargah
Committee v. State of Rajasthan, AIR 1962 SC 574 the
26
2024:HHC:11843
Supreme Court considered the proceedings by a Magistrate
under S. 234 to be proceedings of a civil nature. That was
because though it was a Magistrate constituted as a Court
under the Code of Criminal Procedure that was functioning
such function was not of a criminal nature. On a
consideration of all facts and circumstances, we find that
the function of the District Magistrate under S. 16(1) of the
Indian Telegraph Act is also not of a criminal character as
the District Magistrate is only granting permission to the
authority to proceed with its work and does not by himself
impose any punishment or penalty. Therefore, apart from
the fact that the District Magistrate does not function as a
court even assuming that he was so functioning, he cannot
be said to be functioning as a Criminal Court.
30. Thus, merely because the Magistrate is conducting the
proceedings by following the provisions of CrPC will not make
him a criminal court amenable to the jurisdiction under Section
482 of CrPC. It has to be shown that he was conducting criminal
proceedings before he can be called to a criminal court amenable
to the jurisdiction under Section 482 of CrPC.
31. The House of Lords held in Amand Versus Home
Secretary and Minister of Defence of Royal Netherlands Government
[1943] A.C. 147 that if the case or the matter might result in the
conviction of the person charged or sentenced for some
punishment such as imprisonment or fine, it is a criminal case or
matter. It was observed: -
27
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"The principle which I deduce from the authorities I have
cited and the other relevant authorities which I have
considered is that if the cause or matter is one which, if
carried to its conclusion, might result in the conviction of
the person charged and in a sentence of some punishment,
such as imprisonment or fine, it is a "criminal cause or
matter." The person charged is thus put in jeopardy. Every
order made in such a cause or matter by an English court is
an order in a criminal cause or matter, even though the
order, taken by itself, is neutral in character and might
equally have been made in a cause or matter which is not
criminal. The order may not involve punishment by the law
of this country, but if the effect of the order is to subject by
means of the operation of English law the persons charged
to the criminal jurisdiction of a foreign country, the order
is, in the eyes of English law for the purposes being
considered, an order in a criminal cause or matter, as is
shown by Ex parte Woodhall 20 Q. B. D. 832 and Rex v.
Brixton Prison (Governor of). Ex parte Savarkar [1910] 2 K. B.
1056
32. Halsbury's Laws of England, Fourth Edition, Vol. 11
defines the difference between civil and criminal proceedings by
saying that the civil proceedings are taken out for the recovery of
money or other property or the enforcement of a right or
advantage, however, the criminal proceedings are conducted to
punish a person who has committed a crime. It was observed: -
"Civil proceedings have for their object the recovery of
money or other property, or the enforcement of a right or
advantage on behalf of the plaintiff: criminal proceedings
have for their object the punishment of a person who has
committed a crime. Criminal proceedings are not to be used
as a means of enforcing a civil right. Whether conduct
amounts to a crime may be determined by ascertaining
28
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whether the conduct in question is followed by criminal or
civil proceedings. If the proceedings will result in the
punishment of a party, the conduct in question will be a
crime, notwithstanding that it may be a matter of small
consequence. Where an act is commanded or prohibited by
statute, disobedience is prima facie criminal unless
criminal proceedings manifestly appear to be excluded by
the statute. An act may be prohibited or commanded by a
statute in such a manner that the person contravening the
provision is liable to a pecuniary penalty which is
recoverable as a civil debt; in such an instance,
contravention is not a crime."
33. It was held in State of Uttar Pradesh v. Mukhtar Singh,
1957 SCC OnLine All 263: AIR 1957 All 505: 1957 AWR 268 that the
subject matter of the proceedings, its object and not the mode
adopted or the forum are to be considered while determining
whether the proceedings are civil or not. It was observed at page
522: -
"128. Whether a proceeding is civil or not depends, in my
opinion, on the nature of the subject matter of the
proceeding and its object, and not on the mode adopted or
the forum provided for the enforcement of the right. The
expression "civil rights" in a broad sense comprises the
entire bundle of private rights that a human being or any
person recognises by law as a juristic entity might, as such,
possess under the law and for the recognition, declaration
or enforcement of which law makes a provision."
34. Hon'ble Supreme Court held in S.A.L. Narayan Row v.
Ishwarlal Bhagwandas, (1965) 57 ITR 149: 1965 SCC OnLine SC 18:
AIR 1965 SC 1818 that a party asserts the existence of right and
29
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claims relief for its breach in the civil proceedings whereas
criminal proceedings results in the imposition of a sentence such
as death imprisonment, fine or forfeiture. It was observed: -
"8...The expression "civil proceeding" is not defined in the
Constitution, nor 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 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. But the whole area of
proceedings, which reach the High Courts is not exhausted
by classifying the proceedings as civil and criminal. There
are certain proceedings which may be regarded as neither
civil nor criminal. For instance, proceedings for contempt
of court, and exercise of disciplinary jurisdiction against
lawyers or other professionals, such as Chartered
Accountants may not fall within the classification of
proceedings, civil or criminal. But there is no warrant for
the view that from the category of civil proceedings, it was
intended to exclude proceedings relating to or which seek
relief against enforcement of taxation laws of the State.
The primary object of a taxation statute is to collect
revenue for the governance of the State or for providing
specific services and such laws directly affect the civil
rights of the tax-payer. If a person is called upon to pay tax
which the State is not competent to levy, or which is not
imposed in accordance with the law which permits
imposition of the tax, or in the levy, assessment and
collection of which rights of the tax-payer are infringed in
30
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a manner not warranted by the statute, a proceeding to
obtain relief whether it is from the tribunal set up by the
taxing statute, or from the civil court would be regarded as
a civil proceeding..."
35. It was further held that the character of the
proceedings is not dependent upon the Tribunal, which has the
authority to grant relief. It was observed:-
"8....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."
36. This judgment was followed in Ram Kishan Fauji v.
State of Haryana, (2017) 5 SCC 533: (2017) 2 SCC (Cri) 581: 2017 SCC
OnLine SC 259 and it was held at page 551:
"28. The Court in Ishwarlal Bhagwandas case [CIT v.
Ishwarlal Bhagwandas, (1966) 1 SCR 190: AIR 1965 SC 1818]
referred to Article 133 of the Constitution and took note of
the submission that the jurisdiction exercised by the High
Court as regards the grant of certificate pertains to
judgment, decree or final order of a High Court in a civil
proceeding and that "civil proceeding" only means a
31
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proceeding in the nature of or triable as a civil suit and a
petition for the issue of a high prerogative writ by the High
Court was not such a proceeding. Additionally, it was urged
that even if the proceeding for issue of a writ under Article
226 of the Constitution may, in certain cases, be treated as
a civil proceeding, it cannot be so treated when the party
aggrieved seeks relief against the levy of tax or revenue
claimed to be due to the State. The Court, delving into the
nature of civil proceedings, noted that : (AIR p. 1821, para
8)
"8. ... The expression "civil proceeding" is not defined
in the Constitution, nor 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."
29. After so stating, the Court elucidated the nature of the
criminal proceeding and, in that regard, ruled thus:
(Ishwarlal Bhagwandas case [CIT v. Ishwarlal Bhagwandas,
(1966) 1 SCR 190: AIR 1965 SC 1818], AIR p. 1821, para 8)
"8. ... 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."
30. Explicating the concept further, the Court opined that :
(Ishwarlal Bhagwandas case [CIT v. Ishwarlal Bhagwandas,
(1966) 1 SCR 190: AIR 1965 SC 1818], AIR p. 1821, para 8)
"8. ... 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."
32
2024:HHC:11843
It further held that 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.
31. The aforesaid authority makes a clear distinction
between a civil proceeding and a criminal proceeding. As
far as the criminal proceeding is concerned, it clearly
stipulates that a criminal proceeding is ordinarily one
which, if carried to its conclusion, may result in the
imposition of (i) sentence, and (ii) it can take within its
ambit the larger interest of the State, orders to prevent
apprehended breach of peace and orders to bind down
persons who are a danger to the maintenance of peace and
order. The Court has ruled that the character of the
proceeding does not depend upon the nature of the
tribunal which is invested with the authority to grant relief
but upon the nature of the right violated and the
appropriate relief which may be claimed.
37. It was held in Benham v United Kingdom (1996) 22
EHRR 293 that if the proceedings (a) are brought by a public
authority, and either (b) have culpability requirements (e.g.
requiring a finding of 'culpable neglect' or 'wilful default', or (c)
have potentially severe consequences (such as imprisonment),
they should be regarded as 'criminal' for the purposes of the
European Convention on Human Rights even if they are labelled
'civil' in the domestic law of a Member State.
33
2024:HHC:11843
38. Therefore, it is apparent from the above-cited
judgments that to determine the nature of the proceedings, the
outcome has to be looked into and if it is followed by the
imposition of the sentence, the proceedings have to be treated as
criminal proceedings but if the outcome is the enforcement of the
rights granted by the Civil Court or the statute, they are to be
called civil proceedings. Mere pendency of the proceedings before
the Magistrate or the applicability of CrPC is not sufficient to
determine the nature of the proceedings or the jurisdiction
exercised by him.
39. Para-3 of the statement of the object and reasons
appended to the DV Act shows that the act was enacted to provide
for a remedy under civil law. It reads as under: -
"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."
40. The 124th report of the Standing Committee of the
Ministry of Human Resources Development in the Rajya Sabha
mentioned the statement made by the Secretary that the appeal
was brought to address a situation where the aggrieved woman
34
2024:HHC:11843
does not want to initiate criminal proceedings or the civil
proceedings for divorce. It was stated: -
"Outlining the basic features of the Bill, he stated that the
existing civil, personal or criminal laws leave certain gaps
in addressing the issue of Domestic Violence. Under
criminal law, if a husband perpetrates violence on his wife,
she may file a complaint under Section-498 A of IPC.
Similarly, under civil law, if there is disharmony in a family
and the husband and wife cannot live together, any one of
them may file a suit for separation followed by divorce.
However, the present Bill addresses such a situation where
there is some disharmony in the family but the situation
has not yet reached a stage where either separation or
divorce proceedings have become inevitable and the
aggrieved woman also for some reason does not want to
initiate criminal proceedings against her perpetrator.
Therefore, the Bill seeks to give the aggrieved woman an
alternative avenue whereby she can insulate herself from
violence without being deprived of the basic necessities of
life and without disintegrating her family."
41. It was laid down by the Constitutional Bench of the
Hon'ble Supreme Court in Bengal Immunity Company Limited v.
State of Bihar, (1955) 6 STC 446: 1955 SCC OnLine SC 2: 1955 (2) SCR
603 that Heydon's Rule requires the Court to consider the
common law before the making of the Act, mischief or defect
which the law did not provide, the remedy proposed by the Act
and the reason for the remedy. It was observed:
"It is a sound rule of construction of a statute firmly
established in England as far back as 1584 when Heydon's
case 3 Co. Rep. 7a; 76 E.R. 637 was decided that
35
2024:HHC:11843
".................for the sure and true interpretation of all
Statutes in general (be they penal or beneficial,
restrictive or enlarging of the common law) four
things are to be discerned and considered:-
1st. What was the common law before the
making of the Act;
2nd. What was the mischief and defect for
which the common law did not provide;
3rd. What remedy the Parliament hath
resolved and appointed to cure the disease of
the Commonwealth; and
4th. The true reason of the remedy; and then
the office of all the judges is always to make
such construction as shall suppress the
mischief, advance the remedy, and suppress
subtle inventions and evasions for the
continuance of the mischief, and pro privato
commodo, and to add force and life to the cure
and remedy, according to the true intent of the
makers of the Act, Pro bona publico."
In In re Mayfair Properly Company (1898) 2 Ch. 28 at p. 35
Lindley, M. R., in 1898 found the rule "as necessary now as
it was when Lord Coke reported Heydon's case (supra)". In
Eastman Photographic Material Company v. Comptroller
General of Patents, Designs and Trade Marks [1898] A.C. 571
at p. 576, Earl of Halsbury reaffirmed the rule as follows:
"My Lords, it appears to me that to construe the
Statute in question, it is not only legitimate but
highly convenient to refer both to the former Act and
to the ascertained evils to which the former Act had
given rise and to the later Act which provided the
remedy. These three being compared I cannot doubt
the conclusion."
It appears to us that this rule is equally applicable to the
construction of Article 286 of our Constitution. In order to
properly interpret the provisions of that Article it is,
36
2024:HHC:11843
therefore, necessary to consider how the matter stood
immediately before the Constitution came into force, what
the mischief was for which the old law did not provide and
the remedy which has been provided by the Constitution to
cure that mischief.
42. A similar view was taken in Baliram Waman Hiray v.
Justice B. Lentin, (1988) 4 SCC 419: 1988 SCC (Cri) 941: (1989) 176
ITR 1 : (1989) 72 STC 384 wherein it was observed at page 440:
"25...No rule is more firmly established than the principles
enunciated in the Heydon case [(1584) 3 Co Rep 7a: 76 ER.
637] which have been continually cited with approval not
only by the English courts but also by the Privy Council as
well as this Court. The principles laid down in the Heydon
case [(1584) 3 Co Rep 7a: 76 ER. 637] have been enunciated
in Craies on Statute Law, 6th Edn., at p. 96 as follows:
"That for the sure and true interpretation of all statutes
in general (be they penal or beneficial, restrictive or
enlarging of the common law), four things are to be
discerned and considered: (1) What was the common
law before the making of the Act (2) What was the
mischief and defect for which the common law did not
provide (3) What remedy the Parliament hath resolved
and appointed to cure the disease of the commonwealth
(4) The true reason of the remedy. And then the office of
all the judges is always to make such construction as
shall suppress the mischief and advance the remedy,
and to suppress subtle inventions and evasions for the
continuance of the mischief and pro privato commodo,
and to add force and life to the cure and remedy
according to the true intent of the makers of the Act pro
bono publico."
These rules are still in full force and effect, with the
addition that regard must now be had not only to the
existing law but also to prior legislation and the judicial
interpretation thereof. The court applied the Rule in the
37
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Heydon case [(1584) 3 Co Rep 7a: 76 ER. 637] in Bengal
Immunity Company Limited v. State of Bihar [AIR 1955 SC
661: (1955) 2 SCR 603: (1955) 6 STC 446] in the construction
of Article 286 of the Constitution. After referring to the
state of law prevailing in the then Provinces prior to the
Constitution as also to the chaos and confusion that was
brought about in interstate trade and commerce by
indiscriminate exercising of taxing powers by the different
Provincial Legislatures founded on the theory of territorial
nexus, S.R. Das, Actg. C.J. speaking for himself and Vivian
Bose and Jafer Imam, JJ proceeded to say: (SCR p. 635)
"It was to cure this mischief of multiple taxation and to
preserve the free flow of interstate trade or commerce
in the Union of India regarded as one economic unit
without any provincial barrier that the Constitution-
makers adopted Article 286 of the Constitution...."
An illustration of the application of the Rule is also
furnished in the construction of Section 2(d) of the Prize
Competitions Act, 1955. In R.M.D.
Chamarbaugwalla v. Union of India [AIR 1957 SC 628: 1957
SCR 930] Venkatarama Ayyar, J. speaking for the court after
referring to the previous state of the law, to the mischief
that continued under that law and to the resolutions
passed by different State Legislatures under Article 252(1)
of the Constitution authorising Parliament to pass the Act,
stated: (SCR p. 939)
"[H]aving regard to the history of the legislation, the
declared object thereof and the wording of the statute,
we are of the opinion that the competitions which are
sought to be controlled and regulated by the Act are only
those competitions in which success does not depend to
any substantial degree on skill."
26. A further example is furnished in the construction of
Section 16(3) of the Indian Income Tax Act, 1922 which
provides: "In computing the total income of any individual
for the purpose of assessment, there shall be included (a)
so much of the income of a wife or minor child of such
38
2024:HHC:11843
individual as arises directly or indirectly." The question
before the court was whether the word "individual"
occurring in Section 16(3) meant only a male or also
included a female. After finding that the said word in the
setting was ambiguous, Bhagwati, J. speaking for himself
and J.L. Kapur, J. in CIT v. Sodra Devi [AIR 1957 SC 832: 1958
SCR 1 : (1957) 32 ITR 615] observed: (SCR p. 14)
"In order to resolve this ambiguity therefore we must of
necessity have resort to the state of the law before the
enactment of the provisions; the mischief and the defect
for which the law did not provide; the remedy which the
legislature resolved and appointed to cure the defect
and; the true reason of the remedy...."
After taking into account these factors the learned Judge
went on to say: (SCR p. 18)
"It is clear ... that the evil which was sought to be
remedied was the one resulting from the widespread
practice of husbands entering into nominal
partnerships with their wives and fathers admitting
their minor children to the benefits of the partnerships
of which they were members. This evil was sought to be
remedied by the enactment of Section 16(3) in the Act."
There is no need to burden the judgment with numerous
citations. Following the Rule in Heydon case [(1584) 3 Co
Rep 7a: 76 ER. 637] it appears to us that to construe sub-
section (3) of Section 195 of the Code it is not only
legitimate but highly convenient to refer both to the
former Code and the state of uncertainty brought about
due to conflict of views between different High Courts, and
to the present Code which seeks to provide the remedy. It
was to cure this mischief that Parliament brought in
subsection (3) of Section 195 of the Code and put an end to
the controversy.
43. It was held in X2 v. State (NCT of Delhi), (2023) 9 SCC
433: 2022 SCC OnLine SC 1321 that the intention of the legislature
39
2024:HHC:11843
can be identified by the mischief which was sought to be
suppressed by enacting the statute. It was observed at page 466:
31. The cardinal principle of the construction of statutes is
to identify the intention of the legislature and the true legal
meaning of the enactment. The intention of the legislature
is derived by considering the meaning of the words used in
the statute, with a view to understanding the purpose or
object of the enactment, the mischief, and its
corresponding remedy that the enactment is designed to
actualise. [Justice G.P. Singh, Principles of Statutory
Interpretation, (Lexis Nexis, 2016), at p. 12; State of
H.P. v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351: 1992
SCC (L&S) 874; Union of India v. Elphinstone Spg. & Wvg. Co.
Ltd., (2001) 4 SCC 139] Ordinarily, the language used by the
legislature is indicative of legislative intent. In Kanai Lal
Sur v. Paramnidhi Sadhukhan [Kanai Lal Sur v. Paramnidhi
Sadhukhan, 1957 SCC OnLine SC 8: AIR 1957 SC 907],
Gajendragadkar, J. (as the learned Chief Justice then was)
opined that "the first and primary rule of construction is
that the intention of the legislature must be found in the
words used by the legislature itself". But when the words
are capable of bearing two or more constructions, they
should be construed in light of the object and purpose of
the enactment. The purposive construction of the provision
must be "illumined by the goal, though guided by the
word". [Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814] Aharon
Barak opines that in certain circumstances this may
indicate giving "an unusual and exceptional meaning" to
the language and words used. [ Aharon Barak, Purposive
Interpretation in Law, (Princeton University Press, 2007), at p.
306.]
32. Before we engage in the exercise of purposive
construction, we must caution that a court's power to
purposively interpret a statutory text does not imply that a
Judge can substitute legislative intent with their own
individual notions. The alternative construction
40
2024:HHC:11843
propounded by the Judge must be within the ambit of the
statute and should help carry out the purpose and object of
the Act in question.
33. The interpretation of subordinate legislation should be
consistent with the enabling Act. [Kedarnath Jute Mfg. Co.
Ltd. v. CTO, 1965 SCC OnLine SC 32: AIR 1966 SC 12; Union of
India v. Tulsiram Patel, (1985) 3 SCC 398: 1985 SCC (L&S)
672; M.L. Kamra v. New India Assurance Co. Ltd., (1992) 2 SCC
36: 1992 SCC (L&S) 403; St. Johns Teachers Training
Institute v. NCTE, (2003) 3 SCC 321: 5 SCEC 391] A subordinate
legislation must be reasonable and in consonance with the
legislative policy. It should be interpreted in a meaningful
manner, so as to give effect to the purpose and object of the
enabling Act. An interpretation which is in consonance with
the statutory scheme and gives effect to the statute must be
adopted.
34. In Principles of Statutory Interpretation by Justice G.P.
Singh, it is stated that a statute must be read in its context
when attempting to interpret its purpose. [ Justice G.P.
Singh, Principles of Statutory Interpretation, (Lexis Nexis,
2016), at p. 35.] Context includes reading the statute as a
whole, referring to the previous state of law, the general
scope of the statute, surrounding circumstances and the
mischief that it was intended to remedy. [Union of
India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193: 1977
SCC (L&S) 435; RBI v. Peerless General Finance & Investment
Co. Ltd., (1987) 1 SCC 424] The treatise explains that:
"For ascertaining the purpose of a statute, one is not
restricted to the internal aid furnished by the statute
itself, although the text of the statute taken as a whole is
the most important material for ascertaining both the
aspects of "intention". Without intending to lay down a
precise and exhaustive list of external aids, Lord
Somervell has stated: "The mischief against which the
statute is directed and, perhaps though to an undefined
extent the surrounding circumstances can be
considered. Other statutes in pari materia and the state
of the law at the time are admissible." These external
41
2024:HHC:11843
aids are also brought in by widening the concept of
"context" "as including not only other enacting
provisions of the same statute, but its Preamble, the
existing state of the law, other statutes in pari materia,
and the mischief which the statute was intended to
remedy". In the words of Chinnappa Reddy, J.:
"Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted."
35. The rule of purposive interpretation was first articulated in the Heydon case [Heydon case, (1584) 3 Co Rep 7a: 76 ER 637] in the following terms: (ER p. 638) "... for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth. And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
36. In Bengal Immunity Co. Ltd. v. State of Bihar [Bengal Immunity Co. Ltd. v. State of Bihar, 1955 SCC OnLine SC 2 :
422024:HHC:11843 (1955) 2 SCR 603: AIR 1955 SC 661], the Constitution Bench applied the mischief rule in Heydon case [Heydon case, (1584) 3 Co Rep 7a: 76 ER 637] in the construction of Article 286 of the Constitution. In Kehar Singh v. State (UT of Delhi) [Kehar Singh v. State (UT of Delhi), (1988) 3 SCC 609:
1988 SCC (Cri) 711], a three-judge Bench of this Court held : (Kehar Singh case [Kehar Singh v. State (UT of Delhi), (1988) 3 SCC 609: 1988 SCC (Cri) 711], SCC pp. 717-18, paras 231 &
233) "231. During the last several years, the "golden rule" has been given a go-by. We now look for the "intention" of the legislature or the "purpose" of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-
to-one relations. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind them. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.
***
233. For this purpose, we call in external and internal aids:
External aids are the Statement of Objects and Reasons when the Bill was presented to Parliament, the reports 43 2024:HHC:11843 of the Committee, if any, preceding the Bill, legislative history, other statutes in pari materia and legislation in other States which pertain to the same subject matter, persons, things or relations.
Internal aids are Preamble, scheme, enacting parts of the statutes, rules of languages and other provisions in the statutes."
37. A catena of decisions emanating from this Court, including Kerala Fishermen's Welfare Fund Board v. Fancy Food [Kerala Fishermen's Welfare Fund Board v. Fancy Food, (1995) 4 SCC 341], Bharat Singh v. New Delhi Tuberculosis Centre [Bharat Singh v. New Delhi Tuberculosis Centre, (1986) 2 SCC 614: 1986 SCC (L&S) 335], Bombay Anand Bhavan Restaurant v. ESI Corpn. [Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61 : (2009) 2 SCC (L&S) 573], Union of India v. Prabhakaran Vijaya Kumar [Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527 : (2008) 3 SCC (Cri) 813], settle the proposition that progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision.
38. In S. Gopal Reddy v. State of A.P. [S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596: 1996 SCC (Cri) 792], while interpreting the Dowry Prohibition Act, 1961 (a beneficial legislation), this Court interpreted the meaning of "dowry" by adopting the purposive interpretation approach: (SCC p. 607, para 12) "12. It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the 44 2024:HHC:11843 definition of "dowry" punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, "demand of dowry" as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr Rao that it is only the "demand" made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow. Take for example a case where the bridegroom or his parents or other relatives make a "demand" of dowry during marriage negotiations and later on after bringing the bridal party to the bride's house find that the bride or her parents or relatives have not met the earlier "demand" and call off the marriage and leave the bride's house, should they escape the punishment under the Act. The answer has to be an emphatic "no". It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes." (emphasis in original)
39. This principle has consistently been applied by this Court while construing beneficial legislation. Most recently in K.H. Nazar v. Mathew K. Jacob [K.H. Nazar v. Mathew K. Jacob, (2020) 14 SCC 126], Nageswara Rao, J. writing for a two-judge Bench observed: (SCC p. 135, para 11) "11. Provisions of beneficial legislation have to be construed with a purpose-oriented approach. [Kerala Fishermen's Welfare Fund Board v. Fancy Food, (1995) 4 SCC 341] The Act should receive a liberal construction to promote its objects. [Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61 : (2009) 2 SCC (L&S) 573 and Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527 : (2008) 3 SCC (Cri) 813] Also, literal construction of the provisions of a beneficial 45 2024:HHC:11843 legislation has to be avoided. It is the court's duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation [Bharat Singh v. New Delhi Tuberculosis Centre, (1986) 2 SCC 614: 1986 SCC (L&S) 335]."
44. Thus, the Court has to adopt a construction that will suppress the mischief. It is apparent from the report of the standing committee and the statement of objects and reasons that the legislature thought that civil law does not provide any remedy to a victim of domestic violence. Therefore, the legislature intended to enact the DV Act to provide such a remedy under civil law to protect a woman from domestic violence. Thus, the mischief sought to be suppressed was the absence of the remedies under the Civil Law; thus, the DV Act has to be held to be civil to suppress the mischief.
45. This is also apparent from the fact that the legislature has used the term aggrieved person under Section 2(e) of the DV Act instead of the complainant and respondent under Section 2(q) instead of the accused. The term complaint under the DV Act under Rule 2(b) of the DV Rules means an allegation made orally or in writing by any person to a Protection Officer as contrasted from the definition of the complaint under Section 2(d) as the 46 2024:HHC:11843 allegation made to the Magistrate with a view to his taking action under the Code. Rule 6(i) of the DV Rules provides that the application shall be as per Form II. The Magistrate does not take cognizance under Section 190 of Cr.P.C. and issues a notice as prescribed in Form-VII of the DV Rules as per Section 13 of the DV Act and Rule 12 of DV Rules. No formal notice of accusation or charge is framed. The Magistrate can pass protection orders under Section 18, residence orders under Section 19, monetary relief under Section 20, custody orders under Section 21 and compensation orders under Section 22 of the DV Act. Even Section 28 of the DV Act provides that proceedings under Sections, 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by Cr.P.C. Thus, the legislature has consciously used the word 'proceedings' in respect of Chapter-IV and offence in respect of Chapter-V. Section 32 provides for cognizance and only refers to Section 31(1) of the DV Act. This shows the intention of the legislature to separate the proceedings under Chapter IV and Chapter V. The Legislature has prescribed the offences cognizable by the Magistrate and punishable with imprisonment under Chapter V whereas no such procedure of cognizance and imposition of penalty has been provided under Chapter IV. This 47 2024:HHC:11843 shows that the proceedings under Chapter V are criminal, the Magistrate trying them is a Criminal Court and the proceedings under Chapter IV are for enforcement of the rights and grant of various reliefs, which do not result in the imposition of punishment upon the respondent. Hence, the proceedings have to be taken as civil proceedings even though they are conducted by a Magistrate. Further, Madras High Court had rightly noticed that the whole of the Cr.P.C. does not apply to the Magistrate as the Magistrate is free to deny his aim procedure under Section 5.28(2) of DV Act and no formal notice of accusation or charge is to be framed.
46. It was submitted that the proceedings under Chapter V of the DV Act are criminal; hence, the proceedings under Chapter IV are to be treated as criminal. This submission cannot be accepted. Allahabad High Court held in Mt Mithan v. Municipal Board of Oral and State of U.P., AIR 1956 All 351 that merely because subsequent proceedings are before a Criminal Court cannot lead to an inference that the earlier proceedings were also before a Criminal Court. It was observed: -
"63. If once an authority acts as an inferior criminal Court, a subsequent proceeding before it may also be said to be one before an inferior criminal Court, but it does not follow 48 2024:HHC:11843 that because a subsequent proceeding is before an inferior criminal Court, the earlier proceeding also is, especially when the two proceedings are entirely distinct from each other though one follows the other."
47. Therefore, the former proceedings cannot be said to be criminal merely because the subsequent proceedings arising out of them are criminal.
48. Hon'ble Supreme Court also held in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774 that the relief granted by the Magistrate is of civil nature but the breach of the orders is criminal. It was observed: -
"12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of the civil rights of the complainant i.e. 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 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. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:
"Introduction 49 2024:HHC:11843 The Vienna Accord of 1994 and 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 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 and, 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.
***
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 50 2024:HHC:11843 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--
***
(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.
13. The procedure for obtaining an order of relief is stipulated in Chapter IV of the DV Act, which comprises Sections 12 to 29. Under Section 12, an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the 51 2024:HHC:11843 aggrieved person. The Magistrate is empowered, under Section 18, to pass a protection order. Section 19 of the DV Act authorises the Magistrate to pass a residence order, which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or, directing the respondent to remove himself from the shared household, or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides, etc. Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act include giving of relief in respect of the loss of earnings, medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. Custody can be decided by the Magistrate, which was granted under Section 21 of the DV Act. Section 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are civil. Section 23 vests the Magistrate with the power to grant interim ex parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are civil. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence."
49. All the Courts have held that the proceedings pending before the Magistrate under the DV Act are civil. Even the Bombay High Court held in Nand Kishore (supra) that the proceedings under the DV Act are civil; however, the Bombay High Court has relied upon the fact that the proceedings under the DV Act are to be regulated by Cr.P.C. under Section 28 of the DV Act and there 52 2024:HHC:11843 cannot be a limited application of Cr.P.C. by excluding Section 482 of Cr.P.C. This reasoning overlooks the fact that Section 482 Cr.P.C. is applicable when the proceedings are pending before a Criminal Court, as noticed above. Therefore, before making the provisions of Section 482 of Cr.P.C. applicable, the question whether proceedings are pending before the Criminal Court is to be considered. Once it was held that the proceedings were civil, the Magistrate would be a Court designate and not a Criminal court. Hence, the provisions of Section 482 of Cr.P.C. cannot be applied to the proceedings pending before him in view of the judgment of the Hon'ble Supreme Court in Surjeet Kumar Rana (supra). Hence, the judgment of Madras High Court that since the proceedings are civil, the provision of Section 482 of Cr.P.C. does not apply to the proceedings under the DV Act has to be preferred to the judgments of Full Bench of Bombay High Court and other Courts following the Bombay High Court. This Court had also followed the judgment of the Madras High Court and ordered that the same be circulated amongst the district judiciary who is relying upon the same. It was laid down by the Hon'ble Supreme Court in State of Punjab v. Davinder Singh, 2024 SCC OnLine SC 1860 that the doctrine of stare decisis demands that the courts should 53 2024:HHC:11843 follow the settled principles and should not refer the matter to a larger Bench because the later view seems reasonable. It was observed:
"19. The importance of the doctrine of binding Precedents in the administration of our judicial system hardly needs to be reiterated. The doctrines of Precedent and Stare decisis are the core values of our legal system. In a series of cases, the Constitution Benches of this Court have time and again emphasized that when a decision is rendered by this Court, it acquires a reliance interest and the society organizes itself based on such legal order. When substantial judicial time and resources are spent on the References by the Constitution Benches, the same should not be further referred to the larger Bench by a smaller Bench, in a casual or cavalier manner, and without recording the reasons for disagreement.
20. As back as in 1974 a Seven-Judge Bench in Maganlal ChhaganLal (P) Ltd. v. Municipal Corporation of Greater Bombay (1974) 2 SCC 402, H.R. Khanna, J. had remarked that certainty in the law, which was an essential ingredient of the Rule of Law, would be considerably eroded if the highest Court of the land lightly overruled the view expressed by it in earlier cases. One instance where such overruling could be permissible, according to him, was a situation where contextual values giving birth to the earlier view had subsequently altered substantially.
21. In Lt. Col. Khajoor Singh v. Union of India AIR 1961 SC 532 a Seven-Judge Bench emphasized that the Court should not depart from an interpretation given in an earlier judgment of the Court unless there was a fair amount of unanimity that the earlier decision was manifestly wrong.
22. A more compendious examination of the issue was considered by another Seven-Judge Bench in Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North, Ahmedabad AIR 1965 SC 1636 wherein it was observed that 54 2024:HHC:11843 frequent exercise by this Court of its power to review its earlier decisions on the ground that the view placed before it later appeared to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. It was further stated that before a previous decision is pronounced plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.
23. In a more recent decision in the case of Dr Shah Faesal v. Union of India 2020 (4) SCC 1 a Five-Judge Bench reiterated the doctrines of Precedents and Stare decisis and observed as under: --
"17. This Court's jurisprudence has shown that usually, the courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development. The numbers themselves speak of restraint and the value this Court attaches to the doctrine of precedent. This Court regards the use of precedent as an indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the rule of law. As the Chief Justice of the Supreme Court of the United States, John Roberts observed during his Senate confirmation hearing, "It is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even- handedness". [Congressional Record--Senate, Vol. 156, Pt. 7, 10018 (7-6-2010).] "18. Doctrines of precedents and stare decisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system. Arguably, Judges owe a duty to the concept of certainty of law, therefore they often justify their holdings by relying upon the established tenets of the law."55
2024:HHC:11843 "19. When a decision is rendered by this Court, it acquires a reliance interest and the society organises itself based on the present legal order. When substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner. It is only when a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well-established principle, that a reference will be made to a larger Bench. In this context, a five-judge Bench of this Court in Chandra Prakash v. State of U.P. [(2002) 4 SCC 234: 2002 SCC (Cri) 496: 2002 SCC (L&S) 496], after considering a series of earlier rulings reiterated that : (SCC p. 245, para 22) "22. ... The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court."
24. The above exposition of law makes it clear that the doctrines of binding Precedent and Stare decisis, as also the judicial discipline and propriety, developed over the years, warrant that the decision of the larger Bench should be followed by the smaller Bench. If the smaller bench had any doubt or disagreement with a decision of the larger bench, it could refer the same for reconsideration to the larger bench, however, after setting out the reasons and justification as to why it could not agree or follow the decision of earlier larger Bench. Such disagreement also has to be based on some justifiable reasons, like where the earlier decision of the larger Bench is found to be manifestly wrong or where the contextual values giving birth to the earlier view had altered substantially etc. A casual exercise of power to refer the matter to the larger Bench without recording any reason or on the ground that the view placed before it later seems to be more 56 2024:HHC:11843 reasonable, may incidentally tend to make law uncertain and introduce confusion, which must be avoided.
50. In the present case, there are no cogent reasons to differ from the view taken in Sanjeev Kumar (supra) and no need to refer the same to the Larger Bench.
51. Consequently, it is held that the present petition under Section 482 Cr.P.C. is not maintainable; however, the petitioner is at liberty to apply for its conversion to a petition under Article 227 of the Constitution of India, if so advised.
Cr. MP No. 4556 of 202452. In view of the decision on the question of maintainability, the interim order granted on 8.11.2024 shall stand vacated.
(Rakesh Kainthla) Judge 20th November, 2024 (Chander)