Madhya Pradesh High Court
Yogendra Nath Dwivedi vs Smt. Vinita Dwivedi on 10 August, 2015
CRR-1758-2015
(YOGENDRA NATH DWIVEDI Vs SMT. VINITA DWIVEDI)
10-08-2015
Yogendra Nath Dwivedi
-V/s-
Smt. Vinita Dwivedi and others
Present:
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Hon'ble Shri Justice C.V. Sirpurkar
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Shri Rajesh Kumar Nishad, Advocate for applicant.
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ORDER
(10/08/2015)
1. This criminal revision is directed against the order dated 22.07.2015 passed by the Court of 3rd Additional Sessions Judge, Jabalpur, in Criminal Revision No.15/2015 (Smt. Vinita Dwivedi Vs. Yogendra Nath Dwivedi) whereby, learned Additional Sessions Judge had permitted the respondent Vinita Dwivedi to convert a âcriminal revisionâ into an appeal under section 29 of the Protection of Women from Domestic Violence Act, 2006 (hereinafter referred in this order as âthe Actâ).
2. The facts giving rise to this criminal revision lie in a narrow compass. The respondent wife Vinita Dwivedi instituted proceedings under section 12 of the Act against applicant Yogendra Nath Dwivedi in the Court of JMFC, Jabalpur. In that proceedings, application under Section 23 (2) was filed by respondent wife for interim maintenance, which was dismissed by learned JMFC by order dated 02.12.2014. Respondent wife filed a âcriminal revisionâ challenging aforesaid order in the Court of 3 rd Additional Sessions Judge, Jabalpur. Subsequently, a prayer was made before the learned ASJ for converting aforesaid âCriminal Revisionâ No.15/2015 into an appeal under Section 29 of the Act. The application was opposed by the applicant husband. However, learned ASJ relying upon the Principles laid down by the Allahabad High Court in the case of Mahesh Kumar Vs. State 1978 CRI.L.J 390, allowed the âcriminal revisionâ to be converted into an appeal under Section 29 of the Act.
3. The order dated 22.07.2015 allowing conversion as aforesaid, is subject matter of challenge in this criminal revision before the High Court mainly on the ground that there is no express power granted to subordinate criminal Courts under the Code of Criminal Procedure for permitting conversion of a criminal revision into a criminal appeal. The subordinate criminal Courts do not have inherent powers, reserved for the High Court under Section 482 of the Cr.P.C.; therefore, it has been submitted that learned ASJ has exceeded his jurisdiction by allowing a âcriminal revisionâ to be converted into a âcriminal appealâ.
4. On due consideration of the contentions raised by learned counsel for the applicant, the Court is of the view that this revision has to be dismissed in limine for the reasons hereinafter stated:
It may be noted at the outset that there is no provision for filing a revision under the Act. Section 29 of the Act reads as follows:
29. Appeal.âThere shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
5. It has been held by Bombay High Court in the case of Abhijit Bikha Seth Auti Vs. State of Maharashtra and Another 2009 CRI.L.J. 889 (Bombay), that an appeal under Section 29 is not maintainable against purely procedural orders, which do not decide or determine the rights and liabilities of the parties. As such, all orders made in proceedings under the Act determining the rights and liabilities of the parties, are appealable under Section 29 thereof.
6. Thus, it is clear that the order dated 02.12.2014 passed by the Court of JMFC, Jabalpur, declining to grant interim maintenance to the respondent wife under section 23 (2), was appealable under Section 29 of the Act; however, due to inadvertence, a âcriminal revisionâ was filed thereagainst. Subsequently, a prayer was made for conversion of this âcriminal revisionâ into an appeal under Section 29 of the Act, which was allowed by learned ASJ.
7. It may be noted however that in general terms, an offence means an act or illegal omission made punishable under any law for time being in force. The Delhi High Court in the case of Savita Vs V.D. Bhanot, I (2010) DMC 530 has held that Petition under provisions of act is maintainable even if acts of domestic violence have been committed prior to coming into force of Act or despite her having in past lived together with respondent in a shared household even if the woman is no more living with him at the time of coming into force of the Act because domestic violence per se, is not an offence. Though, breach of protection order or interim protection order is because it is made punishable with imprisonment which may extend to one year and fine which may extend to Rs. 20,000/- or with both and is expressly declared to be an offence under section 31 of the Act. This view was endorsed by the Supreme Court in the case of V.D. Bhanot Vs Savita Bhanot, 2012 AIRSCW 1515 observing that â¦.. âWe agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.â â¦â¦ .
Likewise it has been held by Bombay High Court in the case Raosaheb Pandharinath Kamble v. Shaila Raosaheb Kamble, 2010 CRI. L. J. 3596 that proceedings under section 12 of the Act are quasi civil in nature; therefore, amendments to application under section 12 are permissible.
8. This Court has also held in the case of Ajay Kant and others vs. Smt. Alka Sharma, 2008 Cr.L.J. 264 that an application under section 12 is not a complaint as defined under section 2 (d) of the Code of Criminal Procedure.
9. In view of aforesaid pronouncement, it is obvious that domestic violence per se is not an offence. The proceedings under section 12 of the Act, are quasi-civil in nature. There is no provision for filing a revision under the Act. All orders passed in the proceedings under the Act determining the rights and liabilities of the parties are appealable under section 29. An appeal under section 29 of the Act cannot be equated with a criminal appeal under Chapter 29 of the Code of Criminal Procedure. Protection of Women from Domestic Violence Act, 2005 is a beneficial legislation enacted for providing innovative remedies for the victims of domestic violence.
10. In aforesaid view of the matter, conversion of inadvertently filed âcriminal revisionâ into an appeal under section 29 of the Act cannot be challenged only on the ground that subordinate criminal Courts have not been endowed with inherent powers under the Code of Criminal Procedure because an appeal under section 29 of the Act, stricto sensu, is not an appeal under Chapter 29 of the Code of Criminal Procedure. It may also be noted that in the case at hand the âcriminal revisionâ was converted into appeal by the Court which also had jurisdiction to hear the appeal filed under section 29. Thus, learned ASJ committed no illegality, irregularity or impropriety in permitting conversion of revision into appeal.
11. However, it is true that the limitation prescribed for filing a criminal revision is 90 days; whereas, the limitation prescribed for filing appeal under Section 29 of the Act is 30 days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. As such, in a given case, question of limitation might arise, which may be decided by the concerned Court in accordance with law.
12. A perusal of impugned order dated 22.07.2015 reveals that no objection with regard to the limitation was taken before learned ASJ in the instant case but if such a question is indeed involved, the applicant herein shall be free to raise that question and all other questions with regard to maintainability of the appeal that may arise and those questions shall be decided by the learned ASJ.
13. In aforesaid view of the matter, there is no substance in this criminal revision. Hence, it deserves to be dismissed.
14. Consequently, this criminal revision is dismissed in limine; however, all questions including that of limitation are left open to be decided by the Court below.
(C. V. Sirpurkar)
rg Judge
(C V SIRPURKAR)
JUDGE