Document Fragment View

Matching Fragments

The proceeding under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ( Briefly, „PWDV Act‟ ), pending in the Court of learned Additional Chief Judicial Magistrate, Hailakandi, Assam in MR Case No. 34 of 2008 is under challenge in this criminal petition.

2. This application under Section 482 of the Code of Criminal Proceeding, 1973, read with Section 20(1) of the Constitution of India has been filed by the husband praying for quashing the aforesaid criminal proceeding against him.

5. Prior to filing of the complaint under Section 12 of the PWDV Act, the wife had also filed a case under Section 125 of the CrPC; being M.R case No. 214 of 2006 as well as a case under Section 498 A of the IPC being CR Case No. 638 of 2006. In this way, the present case under PWDV Act was filed nearly after two years of their separation.

5.1 By filing the aforesaid complaint u/s 12 of the PWDV Act , the wife prayed for return of „stridhan‟, custody of the minor child, residence order and compensation under various Sections of the Act.

9. The petitioner is basically challenging the order dated 13.5.2009 passed by the learned trial Magistrate and the judgment dated 3.8.2010, passed by the learned Sessions Judge, wherein, it has been held that panel provisions of PWDV Act are retrospective in operation.

10. Dr. B Ahmed, learned counsel for the petitioner submitted that admittedly, PWDV Act came into operation with effect from 26.10.2006, whereas, the alleged offences were committed prior to May, 2006 and, as such, the learned Additional Chief Judicial Magistrate committed wrong in taking cognizance of the alleged offence. Referring to Article 20(1) of the Constitution, the learned counsel contended that the petitioner cannot be convicted for the alleged offences, which were allegedly committed prior to May, 2006 when the PWDV Act was neither published nor was in force. In support of these submissions, the learned counsel relied upon the judgments of Hon‟ble Supreme Court rendered in the case of West Ramnad Electric Distribution Co. Ltd.-versus- State of Madras(AIR 1962 SC 1753); Rattan Lal -Vs- State of Punjab ( AIR 1965 SC 444); Punjab Tin Supply Company -Vs- Central Government &Ors. : AIR 1984 SC 87 ( 1); Dayal Sing -vs- State of Rajashthan: (2004) 5 SCC 721 and the Judgment of Rajasthan High Court, rendered in the case of Hema -vs- Jitendra : ( 2010) CriLJ 1744.

16. In the case of Hema -vs- Jitendra (supra), the Hon‟ble Rajasthan High Court was directly examining the issue whether the provisions of PWDV Act were retrospective in operation. In this case, His Lordship has held that there is no provision in the Act giving retrospective effect. His Lordship quashed the criminal proceeding on the ground that the marriage between the parties was dissolved in the year 2003, whereas PWDV Act came into force only on in the month of October, 2006.

17. In the case of Vishnu Ram Chandra (supra), referred by the learned counsel for the respondent No.1, the Hon‟ble Supreme Court was considering a challenge of an order of externment of the petitioner on the ground that provisions of Bombay Police Act, 1951, as on the date of petitioner‟s conviction, which was made the basis of his expatriation was not in force. Section 57 of the Act, empowered the authorities to remove persons convicted of certain offences within the local limits of their jurisdiction. In that context, their Lordships observed that statutes, which create no new punishment but authorise some action based on past conduct,the principle of prospective operation is not applied. Their Lordships further observed that if the law is designed to protect the public against acts of harmful character may be construed retrospectively.