1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

ORDERS RESERVED ON : 11.01.2021

PRONOUNCING ORDERS ON : 18.01.2021

CORAM

THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH

Crl.OP Nos.28458, 16411, 33643 of 2019, Crl.OP.Nos.16389, 16450,

17156, 19918, 20434 of 2020 and Crl.OP.Nos.45, 73, 138, 184, 191, 213,
216 , 233, 243, 332 and 349 of 2021
and
Crl.MP.Nos.8239,8240,18568,18569,15188,15189 of 2019, 6300, 6302,
6345, 6344, 6641 8174 8562 of 2020, 31, 32, 38, 39, 57,70, 74,99, 76, 78,
96, 95, 97, 98, 110,113,114,171 and 172 of 2021

Crl OP No.28458 of 2019

1.Dr.P.Pathmanathan
2.Dr.P.Jayagandhi
3.Dr.P.Mukil Sakthi
....Petitioners
in Crl OP No.28458 of 2019

Vs.

1. Tmt.V.Monica
2.Minor R.Saithanya Krishna
Rep.by his mother V.Monica
ETR Nagar, Veeramani Complex,
Bargur Post & Taluk,
Krishnagiri District. .. Respondents
in Crl.OP.No.28458 of 2019
 2

Prayer in Crl OP No.28458 of 2019 : Criminal Original Petition filed

under Section 482 of Cr.PC., to call for the records in D.V.No.71 of 2019

on the file of the Additional Mahila Court at Krisnnagiri, quash the

proceedings therein in fas far as the petitioners herein are concerned.

Amicus Curiae: Mr.A.Ramesh, Senior Counsel

Mr.Srinivasan, Counsel
Mr.G.R.Hari, Counsel

For Petitioners in
Crl.OP.No.28458 of 2029 : Mr.C.S.Dhanasekaran
Crl.OP.No.33643 of 2019 : Mr.P.K.Naarayanan
Crl.OP.No.16411 of 2019 : Mr.K.P.Chandrasekaran
Crl.O.P.No.16389 of 2020 : Mr.S.Sithirai Anandam
Crl.OP.No.16450 of 2020 : M/s.KV Law Firm
Crl.OP.No.17156 of 2020 : Mr.V.Paarthiban
Crl.OP.No.19918 of 2020 : Mr.M.Prabhakar
Crl.OP.No.20434 of 2020 : Mr.N.A.Nissar Ahmed
Crl.OP.No.45 of 2021 : Mr.W.Camyles Gandhi
Crl.OP.No.73 of 2021 : Mr.P.Ravi Shankar Rao
Crl.OP.No.138 of 2021 : Mr.R.Surya Prakash
Crl.OP.No.184 of 2021 : Mr.J.Deliban
Crl.OP.No.191 of 2021 : Mr.S.Sathyaraj
Crl.OP.No.213 of 2021 : Mr.S.Saranraj
 3

Crl.OP.No.216 of 2021 : Mr.P.Veeraraghavan

Crl.OP.No.233 of 2021 : Mr.M.Sankar
Crl.OP.No.243 of 2021 : Mr.Rameshkumar Chopra
Crl.OP.No.332 of 2021 : Mr.S.T.Varadarajalu
Crl.OP.No.349 of 2021 : M/s.Chennai Law Associates

For Respondents in
Crl.OP.Nos.28458 of 2029
& Crl.OP.No.33643 of 2019 : Mr.L.Mahendran
Crl.OP.No.16411 of 2019 : Mr.A.Satha Sivam
Crl.O.P.No.16389 of 2020 : M/s.Udaya PS Menon

COMMON ORDER

The issue that falls for consideration in these batch of cases

relates to the jurisdiction of the High Court to quash a complaint under

Section 12 of the Domestic Violence Act, 2005 (hereinafter referred to as

“D.V. Act” or “the Act”) in exercise of its inherent power under Section

482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as

“Cr.P.C.” or “the Code”).

2. This Court had directed the Registry to put up a number of

cases filed between 2017 and 2020, and pending, for quashing
 4

applications under Section 12 of the D.V Act. This Court was surprised to

learn that over 1000 such cases were pending. The D.V Act endeavors the

Magistrate to dispose an application filed under Section 12 (1) within 60

days from the date of its first hearing. However, here is a distressing

scenario where the proceedings, in a majority of the cases, have come to a

grinding halt without any progress for more than 3 years on account of the

pendency of the petitions on the file of this Court.

3. Upon a close reading of the D.V Act, this Court found that the

nature of rights that were protected and enforced under the Act were

purely civil in nature. However, considering the forum which was dealing

with such applications, and the procedure adopted, a criminal color has

been unwittingly given to these proceedings. Like a chameleon changing

its colour depending on the situation, the proceedings under the D.V Act

were also camouflaged due to the nature of the forum provided under the

Act.

4. On the flip side, this faulty understanding of the nature of the

proceedings has also given rise to a tendency to misuse these proceedings

as a weapon of harassment against parties who are unrelated to the

 5

proceedings by making them stand before a Magistrate like accused

persons. It is mainly on account of this abuse of process that a deluge of

petitions came to be filed for quashing the proceedings under Section 12

of the D.V. Act. This sorry state of affairs was a clear clarion call that

impelled this Court to undertake this exercise to bring the situation under

control by laying down certain guidelines for the disposal of the

applications under Section 12 of the D.V Act.

5. Considering the importance of the issue involved, this Court

sought for and obtained the assistance of the counsel appearing on behalf

of the petitioners, and the senior members of the Bar who have made their

respective submissions. This Court was provided with able assistance by

the respective learned counsel in order to enable this Court to fully answer

the various issues that have cropped up in these cases.

6. A brief excurse into the provisions of the D.V. Act is

necessary to set the discussion in context. Domestic violence against

women is a human rights and social rights issue that has engaged the

attention of law and policy makers at global and national levels. The

genesis of the D.V Act can be traced to the General Recommendation XII
 6

(1989) passed by the U.N Committee on the Elimination of Discrimination

against Women. Taking note of Articles 2, 5, 11, 12 and 16 of the

Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW), it was unanimously resolved by the Committee that

State parties must put in place appropriate legislations to protect women

against violence of any kind occurring within the family, at the work place

or in any other area of social life. India ratified the CEDAW in 1993.

However, a legislation to implement General Recommendation XII had to

await another 12 years.

7. On account of the collective efforts of several national and

international women’s organisations and the National Commission for

Women, the Protection from Domestic Violence Bill, 2002 was tabled in

the Lok Sabha and referred to a Department Standing Committee of the

Ministry of Human Resource Development in the Rajya Sabha. The

Committee submitted its 124th Report on the Bill (2002) which aimed at

“providing a remedy under the civil law which is intended to preserve the

family and at the same time provide protection to victims of domestic

violence.” The object of the Act was to bridge the gap between the

existing procedures in civil and criminal law by providing a civil remedy

 7

for a complaint of domestic violence without disrupting the harmony in

the family. This is clear from the following statement made by the

Secretary, Department of Women and Child Development which has been

alluded to in the Report of the Standing Committee:

“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 the 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
situation where there is some disharmony in the family but
the situation has not yet reached a stage where either
separation or divorce proceeding has become inevitable
and the aggrieved woman also for some reasons 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.”
 8

8. The D.V Act was eventually passed into law as Act 43 of

2005 and came into force on 26.10.2006. The following passage from the

Statement of Objects and Reasons appended to the D.V. Act

unambiguously brings out the civil nature of the remedies contemplated

under the Act :

“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 the woman from
being victims of domestic violence and to prevent the
occurrence of domestic violence in the society.”

9. Section 2(a) of the D.V. Act defines an “aggrieved person”

to mean a woman who is, or has been, in a domestic relationship with the

respondent who alleges to have been subjected to any act of domestic

violence by the respondent. It is crucial to notice that the grievance of the

“aggrieved person” is directed against a “respondent” as defined under

Section 2(q) of the Act. Therefore, the relief sought for under Chapter IV

of the D.V. Act is not in the nature of a formal accusation like in a

criminal case, and the person against whom such a relief is sought for, is,

therefore, not an accused before the Magistrate.

 9

10. In Hiral P Harsora v. Kusum Narottamdas Harsora,

(2016) 10 SCC 165, the definition of a “respondent” in Section 2(q) was

found to contravene Article 14 of the Constitution and was, therefore, read

down. Section 2(q) as it now stands post the aforesaid decision will have

to be read without the words “adult male” and without the proviso which

has been deleted by the judgment of the Hon’ble Supreme Court.

11. Section 12 of the D.V. Act confers a right on i) the

aggrieved person or ii) the protection officer (as appointed under Section

8) or iii) any other person on behalf of the accused person to present an

application to the Magistrate for one or more reliefs under this Act. A

Magistrate is defined in Section 2(i) as under:

“Magistrate” means the Judicial Magistrate of

the first class, or as the case may be, the Metropolitan
Magistrate, exercising jurisdiction under the Code of
Criminal Procedure, 1973(2 of 1974) in the area where
the aggrieved person resides temporarily or otherwise or
the respondent resides or the domestic violence is alleged
to have taken place”

12. The various reliefs that the Magistrate can grant is set out

in Chapter IV of the Act. Broadly speaking, these are

 10

1. Protection Orders (Section 18)

2. Residence Orders (Section 19)

3. Monetary Reliefs (Section 20)

4. Custody Orders (Section 21)

5. Compensation Orders (Section 22)

13. Of all of the aforesaid reliefs, the breach of a protection

order or an interim protection order alone is a cognizable and non-bailable

offence vide Sections 31 and 32(1) of the Act. At first blush, this duality

may seem perplexing. However, on a closer reading of the Act, the reason

becomes clear if one notices Section 31(2) which states that the offence

under Section 32(1) shall, as far as practicable, be tried by the same

Magistrate who passed the order, the breach of which has been alleged to

have been caused by the accused. The proceedings before the Magistrate

would, therefore, partake the character of a civil proceeding while

deciding an application under Chapter IV which may transform into a

criminal proceeding while trying an offence under Chapter V of the Act.

The amalgamation of civil and criminal jurisdictions in the Magistrate

does not, however, destroy the nature and identity of these two separate

and distinct jurisdictions.

 11

14. From the aforesaid, it is clear that the respondent before the

Magistrate is not an accused when they appear before him in response to a

complaint under Section 12 of the Act. Section 31(2) of the Act expressly

alludes to the term “accused” only when an offence i.e., a breach of a

protection or interim protection order is alleged to have been committed

by the respondent under Section 31(1). Secondly, criminality attaches

under Section 31 only to a breach of a protection order under Section 18

or to an interim protection order under Section 23, or under Section 33 for

failure of a Protection Officer to discharge their duties without sufficient

cause.

15. The legal position that all of the reliefs contemplated under

Chapter IV of the D.V Act are civil in nature is no longer res-integra in

view of the decision of the Hon’ble Supreme Court in Kunapareddy v.

Kunapareddy Swarna Kumari, (2016) 11 SCC 774, wherein it was

opined as under:

“12. In fact, the very purpose of enacting the

DV Act was to provide for a remedy which is an
amalgamation of civil rights of the complainant i.e.
aggrieved person. 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
 12

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
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, where
 13

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 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 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 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 the civil law which is intended to protect the 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—
 14

***
(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. Procedure for obtaining order of reliefs 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
 15

Protection Officer or any other person on behalf of the

aggrieved person. The Magistrate is empowered, under
Section 18, to pass protection order. Section 19 of the DV
Act authorises the Magistrate to pass 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 includes giving
of the relief in respect of the loss of earnings, the 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 of civil nature. 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 of civil nature. At the same
 16

time, when there is a breach of such orders passed by the

Magistrate, Section 31 terms such a breach to be a
punishable offence.”
16. Even prior to the aforesaid decision, in Vijaya Baskar v.

Suganya Devi, (2010) SCC Online Mad 5446, a learned single judge of

this Court had come to the same conclusion and opined as under:

“12. The term ‘civil law’ twice used therein is

not an empty formality and that would exemplify and
demonstrate, display and convey that the proceedings at
the first instance should be civil in nature. The legislators
were conscious of the fact that all of a sudden if criminal
law is enforced on the husband and his relatives, certainly
that might boomerang and have deliterious effect in the
matrimonial relationship between the husband and wife.
The object of the Act is that the victim lady should be
enabled by law to live in the matrimonial family
atmosphere in her husband/in-laws' house. It is not the
intention of the said enactment to enable the lady to get
snapped once and for all her relationship with her
husband or the husband's family and for that, civil law
and civil remedies are most efficacious and appropriate
and keeping that in mind alone in the Act, the initiation
of action is given the trappings of civil proceedings
which the authorities including the Magistrate
responsible to enforce the said Act should not loose sight
of”
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17. This takes us to the next question: whether the proceedings

before a Magistrate for reliefs under Chapter IV of the D.V Act are

proceedings before a criminal court?

18. Before examining this issue, it is necessary to notice the

nature of the jurisdiction exercised by the Magistrate under the D.V Act.

The procedure to be followed by a Magistrate in dealing with an

application for reliefs under Chapter IV is set out in Section 28 of the Act.

A close reading of Section 28 would show that it draws a distinction

between “proceedings” (Section 12, 18 to 23) and “offences” (Sections 31

& 33) and states that they will be governed by Cr.P.C. This general rule is

subject to two exceptions. The first exception is contained in the opening

words of Section 28(1) of the Act which begins with the expression “save

as otherwise provided by this Act”, the effect of which is to exclude the

application of the Code in areas where the procedure has been expressly

set out in the D.V Act or the Protection of Women from Domestic

Violence Rules, 2006 (hereinafter referred to as “D.V Rules” or “the

Rules”). The second exception is found in Section 28(2) of the Act which

is in the nature of a non-obstante clause expressly authorizing the Court to

deviate from the procedure set out in Section 28(1) and lay down its own
 18

procedure for disposal of an application under Section 12 or a proceeding

under Section 23(2) of the Act.

19. In the first instance, it is, therefore, necessary to examine the

areas where the D.V. Act or the D.V. Rules have specifically set out the

procedure thereby excluding the operation of Cr.P.C as contemplated

under Section 28(1) of the Act. This takes us to the D.V Rules. At the

outset, it may be noticed that a “complaint” as contemplated under the

D.V. Act and the D.V Rules is not the same as a “complaint” under

Cr.P.C. A complaint under Rule 2(b) of the D.V Rules is defined as an

allegation made orally or in writing by any person to a Protection Officer.

On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is any

allegation made orally or in writing to a Magistrate, with a view to his

taking action under the Code, that some person, whether known or

unknown has committed an offence. However, the Magistrate dealing with

an application under Section 12 of the Act is not called upon to take action

for the commission of an offence. Hence, what is contemplated is not a

complaint but an application to a Magistrate as set out in Rule 6(1) of the

D.V Rules. A complaint under the D.V Rules is made only to a Protection

Officer as contemplated under Rule 4(1) of the D.V Rules.

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20. Rule 6(1) sets out that an application under Section 12 of the

Act shall be as per Form II appended to the Act. Thus, an application

under Section 12 not being a complaint as defined under Section 2(d) of

the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a)

of the Code followed by the procedure set out in Chapter XV of the Code

for taking cognizance will have no application to a proceeding under the

D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure

set out in the subsequent Chapter XV of the Code will apply only in cases

of complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and not

to an application under Section 12 of the Act.

21. Consequently, the stage for issuance of process

contemplated under Section 204, Cr.P.C has no application to a

proceeding under the D.V Act as the Magistrate, in an application under

Section 12 of the D.V Act, is not taking cognizance of any offence, but is

only dealing with an application for civil reliefs. Furthermore, as has

already been pointed out, the respondent before the Court in an application

under Section 12 of the Act is not an accused. Hence, the requirement of

framing a charge does not arise either. (See V. Palaniammal v.

 20

Thenmozhi (2010) 1 MWN Cri 217).

22. In fact, Section 13 of the Act and Rule 12 of the Rules

expressly provide that the Magistrate shall issue “a notice” fixing a date of

hearing as prescribed in Form VII appended to the D.V Rules. The D.V

Act and the Rules do not contemplate the issuance of a summons under

Section 61, Cr.P.C. in an application under Section 12, although Rule

12(2)(c) enables resort to Chapter VI of the Cr.P.C as far as practicable for

effective service of notices. In Vijaya Baskar v. Suganya Devi, (2010)

SCC Online Mad 5446, a learned single judge of this Court expressly

disapproved the practice of issuing summons in Domestic Violence cases,

observing as under:

“9. A mere reading of Section 13 of the said Act

would amply make the point clear that at the initial stage,
the Magistrate was not justified in treating the
respondents in this case as accused and as such, hereafter
relating to applications under Section 12 of the Protection
of Women from Domestic Violence Act, the Magistrate
should not issue summons under Section 61 Cr.P.C.
treating the respondents as accused. What is contemplated
under Section 13 of the Act is a notice specifying the date
etc., The endeavour should be on the part of the officer
concerned is to deal with the matter gently and treating
 21

the respondents in a gentle manner and that should not be

lost sight of. Unless the appearance of the respondents are
absolutely necessary on a particular date, they should not
be simply harassed by compelling them to appear as
though they are offenders. The Magistrate should not
loose sight of the fact that so long as the case is anterior
to the protection order being passed, they should be
treated only as respondents. However, after the order
under Section 18 of the Act is passed and if there is
violation, then the proceedings might get changed and
become criminal proceedings. As such, the Magistrates
hereafter would scrupulously adhere to the mandates
contained in the Act itself.”

23. The procedure for dealing with an application under Section

12 has been set out in Rule 6(5). This rule states that an application under

Section 12 shall be dealt with and the orders enforced in the same manner

laid down in Section 125 of the Code. Section 125, Cr.P.C does not,

however, contain the procedure and the mechanism for enforcement of

maintenance orders. These are set out in Sections 126 and 128 of the

Code, respectively. Section 126 (2) of the Code states that evidence in a

proceeding under Section 125, Cr.P.C shall be recorded in the manner

prescribed for summons cases i.e., in the manner prescribed in Chapter XX

of the Code. Here again, Chapter XX, in the context of proceedings under
 22

the D.V Act, would apply with necessary modifications as the respondent

before the Court is not an accused. The mode and manner of taking

evidence alone is relevant and the provision in this regard is found in

Section 254, Cr.P.C. Even here, the Court is given a wide degree of

latitude and it may, in appropriate cases, depart from the aforesaid

procedure. This is expressly made permissible by Section 28(2) of the Act.

In fact, in Lakshmanan v. Sangeetha, 2009 (3) MWN Cri 257, a learned

single judge held that it is open to the Magistrate to allow chief

examination of the witnesses by an affidavit although no such procedure is

prescribed in Chapter XX of the Code.

24. A close reading of the aforesaid provisions would show that

the procedure set out in the D.V Act and the Rules makes a conscious

deviation from the traditional modes of a criminal court taking

cognizance, issuing process and then trying the accused under the

provisions of the Cr.P.C. save in the case of offences under Section 31 &

33 of the Act. Thus, the application of the Cr.P.C. to an application under

Section 12 is residuary in nature by virtue of the mandate of Section 28(1)

of the D.V Act.

 23

25. In the aforesaid backdrop we may now turn to the issue of

whether the Court of Magistrate acts as a criminal court while exercising

powers under the Act and the Rules. It has already been pointed out that

all the reliefs contemplated under Chapter IV are civil in nature. The term

“criminal court” has not been defined under the Code. Section 6 sets out

the classes of Criminal Courts, and the Court of a Magistrate is

undoubtedly a Court falling within that class. However, it is well settled

that to constitute a Criminal Court, it is not sufficient that it is one of the

Courts mentioned under Section 6, Cr.P.C. It must also be acting as a

Criminal Court. (See R. Subramanian v. Commissioner of Police, AIR

1964 Madras 185).

26. The conferment of civil jurisdiction on Magistrates is not a

new phenomenon. In V.B D’Monte v. Bandra Borough Municipal

Corporation, AIR 1950 Bom 397, the question before the Full Bench of

the Hon’ble Bombay High Court was whether a determination of the rate

of tax by a Magistrate under the Bombay Municipal Boroughs Act was

revisable by the High Court on its criminal side. The Full Bench held that

a Magistrate in dealing with rates and taxes was not dealing with any

criminal matter and hence was not an inferior Criminal Court. Holding
 24

that an order passed by a Sessions Judge exercising civil jurisdiction was

amenable to a revision on the civil side of the High Court, Chief Justice

Chagla opined as under:

“The better view seems to be that a criminal

Court 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 of a criminal character; and on that question there
can be no dispute that it is of a civil nature.”

The test, formulated by Chagla, CJ in the aforesaid case, focuses on the

nature of the proceeding before the Criminal Court and holds that where a

criminal Court exercises civil jurisdiction, it is not necessarily an inferior

Criminal Court within the meaning of Cr.P.C.

27. The aforesaid test, in the context of a civil proceeding, was

 25

reiterated by a Division Bench of the Hon’ble Allahabad High Court in

State of Uttar Pradesh v. Mukhtar Singh, AIR 1957 All 505, wherein it

was observed thus:

“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 law and for the recognition,
declaration or enforcement of which law makes a
provision.”

28. The distinction between a “civil” and “criminal” proceeding

was explained by a Constitution Bench of the Hon’ble Supreme Court in

S.A.L Narayan Row and Another v. Ishwarlal Bhagwandas, AIR 1965

SC 1818, wherein it was observed thus:

“The expression “civil proceeding” is not defined in the

Constitution, nor in 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. A criminal proceeding on the other
hand is ordinarily one in which if carried to its conclusion
 26

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.”

The Supreme Court eventually formulated the following test for

examining the character of a proceeding before a Court or authority:

“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.”
The true test, therefore, depends on the character of the proceeding i.e., the

nature of the right violated and the relief claimed thereon, and not the
 27

nature of the Tribunal adjudicating such a proceeding. Merely because a

Magistrate is called upon to adjudicate and enforce civil rights in an

application under Chapter IV of the D.V Act, it does not follow that the

proceeding before it is of a criminal character. A Court of Magistrate not

exercising functions or determining cases of a criminal character cannot be

said to be a Criminal Court. (See also Mammoo v. State of Kerala, AIR

1980 Ker 18 (FB)).

29. In Dargah Committee, Ajmer v State of Rajasthan, AIR

1962 SC 574, the Ajmer Municipal Committee had issued a notice for

recovery of tax, and had followed it up with an application before the

Magistrate under Regulation 234 of the Ajmer-Merwara Municipalities

Regulation. The Magistrate passed an order directing the payment of dues.

This order was carried on appeal to the Sessions Judge, and then to the

High Court by way of a revision all of which were unsuccessful.

Dismissing the appeals the Hon’ble Supreme Court held:

“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 movable property of the defaulter.
If at all, this would at best be a proceeding of a civil
 28

nature and not criminal. That is why, we think, whatever

may be the character of the proceedings, 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. In the present appeal it is unnecessary to
consider what would be the character of the proceedings
before a competent civil court contemplated by the
proviso. Prima facie such proceedings can be no more
than execution proceedings.”

The Supreme Court affirmed the view that a Magistrate exercising

jurisdiction to grant reliefs of a civil nature does not function as a

Magistrate exercising authority under Cr.P.C., and consequently

was not an inferior criminal court.

30.To the same effect is the decision of the Privy Council in

Annie Besant v. Advocate General of Madras, AIR 1919 PC 31, where

the Board examined the nature of the jurisdiction exercised by the

Magistrate under the Press and Registration of Books Act, 1867, and
 29

opined as follows:

“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.”

The Privy Council concluded that the order passed under the Press
and Registration of Books Act, 1867 was, therefore, not amenable
to a revision under the Cr.P.C.

31.The fact that a Magistrate may, at a subsequent stage under

Chapter V try an offence under Section 31 of the Act for breach of an

order under Sections 18 or 23 of the Act does not render a proceeding

under Chapter IV of the Act as one before a criminal court. A Division

Bench of the Allahabad High Court in, Mt Mithan v. Municipal Board of

Oral and State of U.P., AIR 1956 All 351, has clarified this aspect and

pointed out as under:

“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 that because a subsequent
 30

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.”

In view of the above, the stage of deciding an application under Section 12

is entirely different from the stage where the Magistrate tries an offence

under Section 31 or 33 of the Act. Merely because the Court of Magistrate

is a criminal court in the latter stage, it does not follow that it is a criminal

court in the former stage as well.

32. In view of the decision in Kunapareddy v. Kunapareddy

Swarna Kumari, (2016) 11 SCC 774, it is beyond any cavil that an

application before a Magistrate for one or more reliefs under Chapter IV,

all of which, are civil in nature, are proceedings to vindicate the civil

rights of an aggrieved person. Applying the test laid down in S.A.L

Narayan Row’s case (cited supra), it is clear that the nature of proceeding

before the Magistrate under Chapter IV of the D.V Act is purely civil in

nature. As the jurisdiction exercised by the Magistrate does not partake the

character of a criminal proceeding the result is that a Magistrate cannot be

said to be exercising criminal jurisdiction as a Criminal Court while

exercising jurisdiction under Chapter IV of the D.V Act.

 31

33. This precise question was examined by the Kerala High

Court in Baiju v. Latha, (2011) 3 KLJ 331, wherein it was observed as

under:

16. No doubt, the reliefs which the Magistrate is

required and authorised to grant under certain provisions
of the Act are of a civil nature. But, it cannot be said that
the Magistrate while exercising those functions is not
acting as a criminal court. The Magistrate while
exercising power under the Act acts as a criminal court,
though the proceeding, or the nature of relief that may be
granted under certain provisions are of a civil nature.
Jurisdiction is conferred under the Act on the ‘Magistrate’
and the expression ‘Magistrate’ is defined in Sec. 2(i) of
the Act as meaning the Judicial Magistrate of first class,
or as the case may be, the Metropolitan Magistrate,
exercising jurisdiction under the Code in the area where
the aggrieved person resides temporarily or otherwise or
the respondent resides or the domestic violence is alleged
to have taken place. It is also apposite to refer to Sec. 28
of the Act which states that except as otherwise provided
in the Act, all proceedings under Secs. 12, 18, 19, 20, 21,
22 and 23 and offence under Sec. 31 of the Act are to be
governed by the provisions of the Code. Even as regards
proceedings other than mentioned above, I do not find
anything in the Act which excludes the procedure laid
 32

down in the Code. Atleast for proceedings under Secs. 12,

18 to 23 and 31 of the Act the procedure before learned
Magistrate is governed by the provisions of the Code.”

34. Unfortunately, in concluding as above, the attention of the

Kerala High Court was not drawn to the D.V Rules, 2006 which prescribes

an entirely different procedure from that prescribed in the Code. It has

already been pointed out that the application before the Magistrate is not a

complaint under Section 2(d) of the Cr.P.C with the result that the

procedure set out in Sections 190(1)(a) and 200 -204, Cr.P.C has no

application to such cases. The Kerala High Court, after alluding to the

provisions of the Act observes:

“These provisions also indicate that the court of

Magistrate or Metropolitan Magistrate acts as a criminal
court while discharging functions under the Act though
some of the reliefs it could grant under the Act are of a
civil nature.”

As pointed out supra, after the decision in Kunapareddy, there is no room

for doubt that all, and not merely some, of the reliefs under Chapter IV are

civil in nature. The Kerala High Court in Baiju (cited supra), has also

opined as under:
 33

“Sec. 29 of the Act provides that from any order

that the Magistrate may pass, an appeal shall lie to the
‘Court of Sessions’. It is relevant to note that the Act does
not say what procedure the Court of Sessions is to follow
while entertaining and hearing an appeal preferred under
Sec. 29 of the Act. The provisions in the Code regarding
admission, hearing and disposal of the appeals must apply
to an appeal preferred to the Court of Sessions under Sec.
29 of the Act. Under Sec. 29, appeal lies to the ‘Court of
Sessions’ and not to the Sessions Judge. An appeal is
provided to the Court of Sessions under Sec. 29 since the
court of the Magistrate whose order is under challenge is
a criminal court inferior to the Court of Sessions. I
therefore hold that the Magistrate exercising functions
under the Act acts as a criminal court inferior to the Court
of Sessions and the High Court.”

35. An appeal under Section 29 of the D.V Act is distinct from

an appeal under Chapter XXIX of Cr.P.C. An appeal to a Court of Session

from an order of the Magistrate exercising civil jurisdiction is not novel.

The nature of the jurisdiction exercised by the appellate court in appeals

arising out of orders passed by Magistrates exercising civil jurisdiction

was expressly considered by the Full Bench of the Bombay High Court in

V.B. D'Monte (cited supra), wherein it was observed thus:

 34

“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 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
 35

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
of 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.”

36. Thus, it is obvious that the proceedings before the Sessions

Court, in an appeal under Section 29 from an order passed under Chapter

IV of the D.V Act, does not lose its character as a civil proceeding. It is a

settled legal position that an appeal is a continuation of the original

proceeding. It follows that a Sessions Judge exercising powers under

Section 29 of the D.V Act would have the same powers as a Magistrate

while dealing with an application under Section 12 of the Act. When the

original proceeding partakes the character of a civil proceeding, it is

difficult to appreciate how an appeal under Section 29, arising out of such

an original proceeding, could metamorphosize into a criminal proceeding

 36

before the Court of Sessions. Thus, the aforesaid decision of the Kerala

High Court in Baiju (cited supra), with all due respect, cannot be said to

have laid down the correct law.

37. The matter can be examined from another angle. The very

incorporation of Section 29 in the D.V Act is a pointer that the remedy of

a statutory appeal is a separate and independent remedy conferred

exclusively by the D.V Act, for if the proceeding were to be governed by

the Code, the right of appeal would be regulated exclusively by Chapter

XXIX Cr.P.C. Broadly speaking, the scheme of appeals under Chapter

XXIX are wholly inapplicable as the orders passed by the Magistrate

under Chapter IV of the D.V Act do not deal with any acquittal or

conviction of an accused. Similarly, the powers enumerated under Section

386 Cr.P.C. deal with the powers of an appellate court in an appeal against

conviction/acquittal and does not have any application to an appeal under

Section 29 of the D.V Act.

38. The Hon’ble Supreme Court in Satish Chander Ahuja v.

Sneha Ahuja, Civil Appeal 2483 of 2020 decided on 15.10.2020, has

proceeded on the basis that a proceeding under Section 19 of the D.V Act
 37

is a “criminal proceeding”. The eight questions framed for consideration

in Satish Chander Ahuja (cited supra), have been set out in paragraph 27

of the said judgment and none of those questions were concerned with the

character of the proceedings under the D.V Act. It is well settled that the

ratio of a judgment cannot be decided by picking out words or sentences

from the judgment averse to the context under question. When the nature

of proceedings before the Magistrate under the D.V Act did not

consciously engage the attention of the Hon’ble Supreme Court, it cannot

be said to be a part of the ratio thereby constituting a binding precedent

under Article 141 of the Constitution of India, (See Nevada Properties

Private Limited v State of Maharashtra, (2019) 20 SCC 119).

39. In fact, the litmus test as to whether a proceeding is civil or

criminal in nature has been authoritatively settled by a three judge bench

of the Hon’ble Supreme Court in Ram Kishan Fauji v. State of Haryana,

(2017) 5 SCC 533. The Hon’ble Supreme Court reiterated the test laid

down in S.A.L Narayan Row (cited supra), and opined as under:

“31. The aforesaid authority makes a clear

distinction between a civil proceeding and a criminal
proceeding. As far as criminal proceeding is concerned, it
clearly stipulates that a criminal proceeding is ordinarily
 38

one which, if carried to its conclusion, may result in

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.”
The Hon’ble Supreme Court eventually concluded that it is conceptually

fallacious to determine the nature of the proceeding with reference to the

nature of the Court, since the litmus test is the nature of the proceeding,

nothing more nothing less. Applying the aforesaid test, it is beyond a pale

of controversy that all of the reliefs claimed under Chapter IV of the Act

are civil in nature for the enforcement of civil rights, as was held by the

Supreme Court in Kunapareddy (cited supra) and a proceeding before the

Magistrate would, therefore, partake the character of a civil and not a

criminal proceeding.

40. As the proceedings before a Magistrate exercising

jurisdiction under Chapter IV is not a criminal proceeding before a

Criminal Court, the next question is whether a petition under Section 482
 39

of the Code would lie to quash an application under Section 12 of the D.V.

Act. It is settled law that a petition under Section 482, Cr.P.C would lie

only against an order of a criminal court. In State of W.B. v. Sujit Kumar

Rana, (2004) 4 SCC 129, the Supreme Court has opined as under:

“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
proceeding pending before a court amounts to 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.”

41. As pointed out by a Division Bench of this Court in

Rajamanickam v State of Tamil Nadu, 2015 (3) MWN Cri 379, Section

482 Cr.P.C preserves only the inherent criminal jurisdiction of the High

Court. Thus, a petition under Section 482, Cr.P.C would be maintainable

only if the order complained of is passed by a criminal Court or by a Court

in exercise of powers under the Cr.P.C. Quashing an application under

 40

Section 12 of the D.V Act does not fall in either category, as what the

Court is called upon to do at that stage is to interdict the exercise of civil

jurisdiction by the Magistrate at the threshold. As indicated supra, since

the Magistrate is exercising only a civil jurisdiction in granting reliefs

under Chapter IV of the Act, it follows that a Magistrate is not a criminal

court for the purposes of proceedings under Chapter IV of the Act. It

follows that an application under Section 482, Cr.P.C does not lie to quash

an application under Section 12 of the D.V Act.

42. This does not, however, mean that an aggrieved respondent

is remediless. The Magistrate exercising jurisdiction under Chapter IV of

the D.V Act, is certainly a subordinate Court for the purposes of Article

227, and a petition under Article 227 of the Constitution would still be

available challenging the proceedings under Chapter IV of the D.V Act, in

an appropriate case.

43. As a matter of fact, in M. Muruganandam v. M. Megala,

(2011) 1 CTC 841, this Court had entertained a challenge under Article

227 of the Constitution to an application under Section 12 of the D.V. Act.

V. Ramasubramanian, J (as he then was) opined as under:

 41

“11. At the outset, a preliminary issue was

raised as to whether the Revisional Jurisdiction of this
Court under Article 227 of the Constitution can be invoked
against the orders of the Magistrate, passed under the
provisions of the Protection of Women from Domestic
Violence Act, 2005. But the issue was settled by the
Supreme Court in State of Haryana v. Bhajan Lal, AIR
1992 SC 604. In paragraph-108 of the said decision, the
Supreme Court gave an illustrative list of cases where this
Court could exercise either the extraordinary jurisdiction
under Article 226 or the inherent powers under Section
482, Cr.P.C. The said decision was followed in P.S.
Rajya v. State of Bihar, JT 1996 (6) SC 480 and in Pepsi
Foods Ltd v. Special Judicial Magistrate, 1998 (5) SCC
749. In Pepsi Foods case, the Apex Court held that the
nomenclature under which a Petition is filed is not quite
relevant and that it would not debar the Court from
exercising its jurisdiction. In paragraph 29 of its decision
in Pepsi Foods case, the Supreme Court stated as follows:
“No doubt a Magistrate can discharge the accused at any
stage of the trial if he considers the charge to be
groundless. But that does not mean that the accused
cannot approach the High Court under Section 482 of the
Code or Article 227 of the Constitution to have the
proceeding quashed against him when the Complaint does
not make out any case against him……”
 42

12. Again in State of Orissa v. Debendra Nath

Padhi, 2005 (1) CTC 134, the principles laid down
in Bhajan Lal were reiterated and the Apex Court referred
both to Section 482, Cr.P.C., and to Article 226 of the
Constitution.
13. Therefore, it is clear that this Court can
exercise its Revisional powers under Article 227 of the
Constitution, in respect of the orders passed under the
Protection of Women from Domestic Violence Act, 2005.
However, it will always be subject to the restrictions,
subject to which the power has to be exercised. As a
matter of fact, it is stated by the learned Counsel for the
Petitioners that the Petitioners actually filed a Petition
under Section 482, Cr.P.C., but a doubt was raised about
the maintainability of the same on the ground that the
proceedings under the Act, are not purely Criminal
proceedings. Therefore, the Petitioner has come up with
the above Revision under Article 227 of the Constitution
and the doors of this Court, cannot be shut on all sides to
the Petitioners.”

44. It is entirely true that the nomenclature of the petition is not

decisive of the jurisdiction of the Court. Section 482, Cr.P.C merely saves

the inherent power of the High Court to make such orders as may be

necessary to a) give effect to an order under this Code; or b) prevent abuse

 43

of process of any Court; or c) otherwise secure the ends of justice. It is

well settled that this section has not given any new power to the High

Court but has merely preserved the power inherently possessed by every

High Court as a superior Court of record. As a highest Court of Justice in

the State, the High Court exercises a visitorial or supervisory jurisdiction

over all Courts in the State. However, the plenitude of the inherent power

under Section 482, Cr.P.C does not extend to annul proceedings which are

not before a Criminal Court. As pointed out supra, to constitute a criminal

court, it is not sufficient that the Court is one of the Courts enumerated

under Section 6 Cr.P.C, it is also necessary that the proceedings before it

are criminal in character. If the proceeding before the Court is civil in

nature, then it cannot be said that the Court is a Criminal Court exercising

criminal jurisdiction for the purposes of Section 482, Cr.P.C.

45. The decision in Muruganandam (cited supra) is, therefore,

an authority for the proposition that a petition under Article 227 of the

Constitution would lie to quash an application under the D.V Act in an

appropriate case. This being a judgment of a bench of co-ordinate

strength, is also binding on this Court. The Kerala High Court has also

taken the same view in two of its later decisions in Santhosh v. Ambika.R,
 44

(2015) SCC Online Ker 26542 and T. Rajan v Vani.P, (2020) SCC Online

Ker 25170. In a recent decision, Latha P.C v State of Kerala, 2020 (6)

KLT 496, the Kerala High Court held that an application under Section

482 Cr.P.C is not maintainable to quash a complaint under Section 12 of

the D.V. Act.

46. A Division Bench of the Bombay High Court had reached

the same conclusion in Sukumar Pawanlal Gandhi v Bhakti Sushil

Gandhi, (2016) SCC Online Bom 12942. However, a Full Bench of the

Bombay High Court in Prabhakar Mohite v State of Maharashtra, AIR

2018 Bom, overruled the decision in Sukumar Pawanlal Gandhi, (cited

supra). The Full Bench correctly noticed that the character of a proceeding

is not dependent upon the nature of the Tribunal but on the nature of the

right violated. The Full Bench held, and rightly so, that the nature of the

right in a proceeding under the D.V Act is purely civil in nature. Having

held so, the Full Bench, nevertheless, found that an application under

Section 482 Cr.P.C would lie and opined thus:

“53. This would mean that generally the

provisions of Criminal Procedure Code would be
applicable, to all proceedings taken under sections 12 to
23 and also in respect of the offence under section 31 of
 45

the D.V. Act, subject to the exceptions provided for in the

Act including the one under sub-section (2) of section 28.
It would then follow that it is not the nature of the
proceeding that would be determinative of the general
applicability of Criminal Procedure Code to the
proceedings referred to in section 28(1) of the D.V. Act,
but the intention of the Parliament as expressed by plain
and clear language of the section, which would have its
last word”
In other words, according to the Full Bench, even though the nature of

remedies under the D.V Act are civil in nature, the principle that a nature

of the proceeding would determine its character would not apply in view

of the intention of Parliament expressed through Section 28, making the

Cr.P.C applicable. With all due respect, these observations may not be

accurate. There is a presumption that the legislature is presumed to know

the law when it enacts a piece of legislation. (See CWT v Bangalore Club,

(2020) 9 SCC 599). Parliament must, therefore, be presumed to be aware

of the law laid down by the Constitution Bench in S.A.L Narayan Row

(cited supra), wherein it was held that the true test of the nature of a

proceeding must be ascertained with reference to the character of the right

violated and reliefs sought thereon and not by the nature of the Court

adjudicating such a proceeding. Section 28 of the D.V Act does not and

cannot displace this principle. As has already been pointed out, the
 46

application of Cr.P.C to a proceeding under Section 12, by virtue of

Section 28(1), is residuary in nature.

47. As a matter of fact, the conclusions of the Full Bench

appear to be contradictory which is evident from the fact that, at paragraph

40, the Bench agrees that the proceedings under the D.V Act are

predominantly civil in nature, and it is only when there is a breach under

Section 31 or a failure or refusal by a Protection Officer as contemplated

under Section 33, the proceedings assume the character of criminality.

Having held so, the Full Bench, at paragraph 56, held that a petition under

Section 482 of the Code would lie in view of the express applicability of

the Cr.P.C under Section 28(1) of the Act following a Division Bench of

the High Court of Gujarat in Suo Motu v. Ushaben Kishorbhai Mistry,

2016 2 RCR (Cri) 421.

48. Again, with all due respect, it must be pointed out that in

view of the law laid down by the Supreme Court in S.A.L Narayan Row

(cited supra) and Ram Kishan Fauji (cited supra), the nature of the Court

or the procedure followed by such a Court cannot determine the character

of the proceeding before it. The litmus test, in all cases, is focused on the
 47

nature of the right infringed and the relief sought for the vindication of

such a right. This is precisely why the Full Bench of the Bombay High

Court in V.B. D'Monte (cited supra), had ordered a revision to be listed

on its civil side despite the order having been passed by a Court of

Session.

49. In Ram Kishan Fauji (cited supra), it was sought to be

contended that the Lokayukta is a quasi-judicial body, and an enquiry at

its instance would come within the ambit and scope of civil and not

criminal jurisdiction. Repelling this contention, the Supreme Court

categorically held that the procedure followed by the Lokayukta was of no

consequence in determining the character of the proceeding before the

Court. The Hon’ble Supreme Court said:

“18. The maze needs to be immediately cleared.

In the instant case, we are really not concerned with the
nature of the post held by Lokayukta or Upa-Lokayukta.
We are also not concerned how the recommendation of the
said authorities is to be challenged and what will be the
procedure therefor. As has been held by this Court,
neither the Lokayukta nor Upa- Lokayukta can direct
implementation of his report, but it investigates and after
investigation, if it is found that a public servant has
committed a criminal offence, prosecution can be
 48

initiated.”

The position is unambiguously set out in the following

passage in Ram Kishan Fauji, (cited supra)
“In the case at hand, the writ petition was filed
under Article 226 of the Constitution for quashing of the
recommendation of the Lokayukta. The said
recommendation would have led to launching of criminal
prosecution, and, as the factual matrix reveals, FIR was
registered and criminal investigation was initiated. The
learned Single Judge analysed the report and the ultimate
recommendation of the statutory authority and thought it
seemly to quash the same and after quashing the same, as
he found that FIR had been registered, he annulled it
treating the same as a natural consequence. Thus, the
effort of the writ petitioner was to avoid a criminal
investigation and the final order of the writ court is
quashment of the registration of FIR and the subsequent
investigation. In such a situation, to hold that the learned
Single Judge, in exercise of jurisdiction under Article
226 of the Constitution, has passed an order in a civil
proceeding as the order that was challenged was that of
the quasi- judicial authority, that is, the Lokayukta, would
be conceptually fallacious. It is because what matters is
the nature of the proceeding, and that is the litmus test.”
50. It follows that in view of the law laid down in Narayan

Row (cited supra) and Ram Kishan Fauji (cited supra), that the character
 49

of a proceeding under the D.V Act, in so far is it relates to the reliefs under

Sections 18 to 23, does not become criminal in character merely on

account of the procedure under the Cr.P.C adopted by the Magistrate. In

view of the foregoing discussion, the inevitable conclusion is that a

petition to quash an application under Section 12 of the D.V. Act is

maintainable only by way of a petition under Article 227 of the

Constitution and not under Section 482, Cr.P.C.

51. It has been brought to the notice of this Court that in

several cases, Magistrates continue to mechanically follow the drill of the

procedure set out in Sections 190(1)(a), 200 to 204, Cr.P.C and issue

summons as if the respondents before it are accused of offences. To

compound the confusion, in most of these cases all and sundry are roped

in as respondents before the Magistrate. These respondents, upon being

summoned, file petitions under Section 205, Cr.P.C to dispense with their

personal attendance and thereafter file petitions under Section 482, Cr.P.C

to obtain a stay of all further proceedings in the case, and in most cases

their personal appearance before the Magistrate is also dispensed with, and

the case is then thrown into the backburner. All of this, it appears, is on

account a perceptible lack of clarity in the procedure followed by the

 50

Magistrates while deciding applications under the Act.

52.While it is no doubt true that the Court of Magistrate is

invested with a great deal of flexibility under Section 28(2) of the Act to

devise its own procedure for disposal of an application under Section 12

of the Act, the twin principles of consistency and clarity dictate that this

Court must now lay down some broad guidelines, in exercise of its power

of superintendence under Article 227 of the Constitution & in respect of

Judicial Magistrates under Section 483 of the Cr.P.C, for the proper

disposal of applications under Section 12 of the D.V Act. A corrective

mechanism is available in the D.V Act itself for aggrieved parties to

agitate their grievances and obtain redress.

The following directions are, therefore, issued:

i. An application under Section 12 of the D.V. Act, is not a

complaint under Section 2(d) of the Cr.P.C. Consequently,

the procedure set out in Section 190(1)(a) & 200 to 204,

Cr.P.C as regards cases instituted on a complaint has no

application to a proceeding under the D.V Act. The

Magistrate cannot, therefore, treat an application under the

D.V Act as though it is a complaint case under the Cr.P.C.

 51

ii.An application under Section 12 of the Act shall be as set

out in Form II of the D.V Rules, 2006, or as nearly as

possible thereto. In case interim ex-parte orders are sought

for by the aggrieved person under Section 23(2) of the Act, an

affidavit, as contemplated under Form III, shall be sworn to.

iii. The Magistrate shall not issue a summon under

Section 61, Cr.P.C to a respondent(s) in a proceeding under

Chapter IV of the D.V Act. Instead, the Magistrate shall issue

a notice for appearance which shall be as set out in Form VII

appended to the D.V Rules, 2006. Service of such notice shall

be in the manner prescribed under Section 13 of the Act and

Rule 12 (2) of the D.V Rules, and shall be accompanied by a

copy of the petition and affidavit, if any.

iv. Personal appearance of the respondent(s) shall not be

ordinarily insisted upon, if the parties are effectively

represented through a counsel. Form VII of the D.V Rules,

2006, makes it clear that the parties can appear before the

Magistrate either in person or through a duly authorized

counsel. In all cases, the personal appearance of relatives and

 52

other third parties to the domestic relationship shall be

insisted only upon compelling reasons being shown. (See

Siladitya Basak v State of West Bengal (2009 SCC Online

Cal 1903).

v. If the respondent(s) does not appear either in person

or through a counsel in answer to a notice under Section 13,

the Magistrate may proceed to determine the application ex-

parte.

vi. It is not mandatory for the Magistrate to issue notices

to all parties arrayed as respondents in an application under

Section 12 of the Act. As pointed out by this Court in Vijaya

Baskar (cited supra), there should be some application of

mind on the part of the Magistrate in deciding the

respondents upon whom notices should be issued. In all cases

involving relatives and other third parties to the matrimonial

relationship, the Magistrate must set out reasons that have

impelled them to issue notice to such parties. To a large

extent, this would curtail the pernicious practice of roping in

 53

all and sundry into the proceedings before the Magistrate.

vii. As there is no issuance of process as contemplated

under Section 204, Cr.P.C in a proceeding under the D.V Act,

the principle laid down in Adalat Prasad v Rooplal Jindal

(2004 7 SCC 338) that a process, under Section 204, Cr.P.C,

once issued cannot be reviewed or recalled, will not apply to

a proceeding under the D.V Act. Consequently, it would be

open to an aggrieved respondent(s) to approach the

Magistrate and raise the issue of maintainability and other

preliminary issues. Issues like the existence of a shared

household/domestic relationship etc., which form the

jurisdictional basis for entertaining an application under

Section 12, can be determined as a preliminary issue, in

appropriate cases. Any person aggrieved by such an order

may also take recourse to an appeal under Section 29 of the

D.V Act for effective redress (See V.K Vijayalekshmi Amma

v Bindu. V, (2010) 87 AIC 367). This would stem the deluge

of petitions challenging the maintainability of an application

under Section 12 of the D.V Act, at the threshold before this

 54

Court under Article 227 of the Constitution.

viii. Similarly, any party aggrieved may also take recourse

to Section 25 which expressly authorises the Magistrate to

alter, modify or revoke any order under the Act upon showing

change of circumstances.

ix. In Kunapareddy (cited supra), the Hon’ble Supreme

Court upheld the order of a Magistrate purportedly exercising

powers under Order VI, Rule 17 of The Code of Civil

Procedure, 1908 (hereinafter referred to as “C.P.C.”), to

permit the amendment of an application under Section 12 of

the D.V Act. Taking a cue therefrom, it would be open to any

of the respondent(s), at any stage of the proceeding, to apply

to the Magistrate to have their names deleted from the array

of respondents if they have been improperly joined as parties.

For this purpose, the Magistrate can draw sustenance from the

power under Order I Rule 10(2) of the C.P.C. A judicious use

of this power would ensure that the proceedings under the

D.V Act do not generate into a weapon of harassment and

would prevent the process of Court from being abused by

 55

joining all and sundry as parties to the lis.

x. The Magistrates must take note that the practice of

mechanically issuing notices to the respondents named in the

application has been deprecated by this Court nearly a decade

ago in Vijaya Baskar (cited supra). Precedents are meant to

be followed and not forgotten, and the Magistrates would,

therefore, do well to examine the applications at the threshold

and confine the inquiry only to those persons whose presence

before it is proper and necessary for the grant of reliefs under

Chapter IV of the D.V Act.

xi. In Satish Chandra Ahuja (cited supra), the Hon’ble

Supreme Court has pointed out the importance of the

enabling provisions under Section 26 of the D.V Act to avoid

multiplicity of proceedings. Hence, the reliefs under Chapter

IV of the D.V can also be claimed in a pending proceeding

before a civil, criminal or family court as a counter claim.

xii. While recording evidence, the Magistrate may resort

to chief examination of the witnesses to be furnished by

 56

affidavit (See Lakshman v Sangeetha, 2009 3 MWN (Cri)

257. The Magistrate shall generally follow the procedure set

out in Section 254, Cr.P.C while recording evidence.

xiii. Section 28(2) of the Act is an enabling provision

permitting the Magistrate to deviate from the procedure

prescribed under Section 28(1), if the facts and circumstances

of the case warrants such a course, keeping in mind that in the

realm of procedure, everything is taken to be permitted unless

prohibited (See Muhammad Sulaiman Khan v Muhammad

Yar Khan, 1888 11 ILR All 267).

xiv. A petition under Article 227 of the Constitution may

still be maintainable if it is shown that the proceedings before

the Magistrate suffer from a patent lack of jurisdiction. The

jurisdiction under Article 227 is one of superintendence and

is visitorial in nature and will not be exercised unless there

exists a clear jurisdictional error and that manifest or

substantial injustice would be caused if the power is not

exercised in favour of the petitioner. (See Abdul Razak v.

Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar

 57

Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin

Educational Society, (2019) 9 SCC 538.) In normal

circumstances, the power under Article 227 will not be

exercised, as a measure of self-imposed restriction, in view of

the corrective mechanism available to the aggrieved parties

before the Magistrate, and then by way of an appeal under

Section 29 of the Act.

53. In the result, these petitions under Section 482, Cr.P.C., are

not maintainable, and will accordingly stand dismissed. The petitioners

will be at liberty to approach the Magistrate, and work out their remedies

in accordance with the directions laid down, supra. The Magistrates shall

endeavour to complete the proceedings within a period of three months

from the date of receipt of a copy of this order.

54. The Registry is directed to circulate a copy of this order to

the Principal District and Sessions Judges in the State, who in turn, will do

the needful to bring the directions laid down in this order to the notice of

the Judicial Magistrates, in their respective Sessions Divisions, for proper

disposal of the applications filed under Section 12 of the D.V. Act.

 58

55.Before drawing the curtains, this Court will be failing in its

duty if it does not acknowledge the assistance rendered by all the learned

counsel. A special mention is also due to my interns for their thorough

research on the various questions arising in this case.

18.01.2021
Index : Yes
Internet : Yes
/

KP
 59

To

All Principal District and

Sessions Judges in the State.
 60

N.ANAND VENKATESH.J.,

KP

Pre Delivery Common Order in

Crl.OP Nos.28458, 16411, 33643 of 2019,
Crl.OP.Nos.16389, 16450, 17156, 19918,
20434 of 2020 and Crl.OP.Nos.45,73, 138, 184,
191, 213, 216 , 233, 243, 332 and 349 of 2021

18.01.2021