TMI Blog2018 (5) TMI 2140X X X X Extracts X X X X X X X X Extracts X X X X ..... e fora to obtain the reliefs provided under the D.V. Act is a certain pointer to the fact that the character of the proceeding is not dependent 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 kind of relief that may be had. Applicability of provisions of the Cr.P.C. and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil remedies available under the D.V. Act more effective and meaningful. Parliament thought in it's wisdom that mere giving of remedies of civil nature or an order of injunction or prohibition for that matter, may not be sufficient to enable the aggrieved person realise the benefits of civil remedies. It were the speed and fear of the criminal procedure generally and the penal consequences visiting the respondent for some of his indiscretions would what really make a disobedient respondent behave - keeping with the vision of Parliament which sees domestic violence as a human rights issue and a serious impediment to development. Unless a wide array of remedies is provided, and it is possible only in civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice - This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under Section 12 of the D.V. Act. If this power is removed from Section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated. The reference is returned accordingly. - Criminal Application [APL] No. 578 of 2011 - - - Dated:- 3-5-2018 - B.P. Dharmadhikari, S.B. Shukre And Swapna Joshi, JJ. For the Appellant : Amit Kinkhede h/f S.V. Sirpurkar, Advocate. For the Respondents : C.A. Joshi, Advocate. JUDGMENT S.B. SHUKRE, J. 1. Hearing of this application fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the Chief Justice was pleased to direct to constitute the Division Bench presided over by one of us (B.P. Dharmadhikari, J.) to hear and decide the reference made by the learned Single Judge in this criminal application. 4. As the hearing of the reference before the Division Bench commenced, a new development took place. It was informed at the bar that the original applicant-Nandkishor was no more. The matter was adjourned for further consideration and the learned Counsel for the respondent confirmed the fact that the original applicant-Nandkishor was dead. Thereafter, considering the fact that the questions under reference were required to be answered appropriately, an order was passed on 18/08/2017 directing the Registry of this Court to publish a notice in the cause list, pointing out the issues referred and requesting the Advocates' willing to assist the Court to resolve the issues on the next date of hearing, which was 11/09/2017. 5. In response to the said notice, learned Additional Public Prosecutor Shri M.K. Pathan, appeared before the Court in addition to Shri Amit Kinkhede, learned Counsel for the applicant and Shri C.A Joshi, learned Counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to a larger Bench for deciding the questions as framed (supra) by the learned Single Judge of this Court. 7. Accordingly, we have heard Shri Amit Kinkhede, learned Counsel for the applicant, Shri Sumant Deopujari, the learned Public Prosecutor, Shri C.A. Joshi, learned Counsel for the respondent and Shri Sahil Dewani, the learned Advocate, who all have rendered assistance to us in answering the questions under reference. 8. Shri Amit Kinkhede, learned Counsel appearing for the applicant contends that the case of Kunapareddy (supra) clears the air of doubt around the nature of proceeding contemplated under the D.V. Act. He submits that the Hon'ble Apex Court has held that the proceeding is predominantly of civil nature, owing to the nature of rights it addresses and remedies it provides for assertion of those rights. He submits that even the procedure prescribed in the D.V. Act is neither completely criminal nor civil and a discretion has been given to the Court trying the application filed under Section 12(1) of the D.V. Act to lay down it's own procedure to suit the needs of a given case. He further submits that the Hon'ble Supreme Court in S.A.L. Narayan Row ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding under the D.V. Act. 10. Shri C.A. Joshi, learned Counsel for the respondent submits that the proceeding under Section 12(1) of the DV. Act is predominantly of civil nature, the remedies provided thereunder being of civil nature. He further submits that this fact is also made clear by the Statement of Objects and Reasons, which says that this enactment has been proposed keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India to provide for a remedy under the civil law, which is intended to protect women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. He submits that offences created under the D.V. Act are restricted to only the breach of protection order issued under Section 18 and failure of the Protection Officer to perform his duty, as prescribed under Sections 31 and 33 and, therefore except for quashing of a proceeding under Sections 31 and 33 of the D.V. Act, power under Section 482 of Cr.P.C. cannot be invoked to quash other proceedings under the D.V. Act. Thus, he supports the view of the Division Bench of this Court taken in the case of Sukumar Gandhi (supra). 11. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court to modify or lay down the own procedure in some cases. 13. These arguments indicate that there is an agreement among the arguing Counsel that the nature of proceeding is mainly civil, though they differ on the extent of applicability of the provisions of Cr.P.C. to all proceedings under the D.V. Act, with majority of them, asserting that the Cr.P.C. does apply barring exceptional cases as provided under Section 28 of the D.V. Act and Shri C.A. Joshi, a subscriber of minority view, emphasizing that Section 482 Cr.P.C. power can be invoked only to quash a proceeding taken in respect of offences under Sections 31 and 33 of the D.V. Act and not in relation to other proceedings. 14. Now, in the light of these arguments, let us proceed to explore the probable answers to the questions framed under reference. We shall now take up the first question for consideration and resolution. For the sake of convenience, the question is reproduced again thus : (i) Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2008 are in the nature of criminal proceedings ? 15. The D.V. Act nowhere makes any reference to the character or nature of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient to illustrate the point. Section 26 reads thus : 26. Relief in other suits and legal proceedings- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. Sub-section (1) of Section 26, it is clear, lays down that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, a Family Court or a Criminal Court affecting the aggrieved person and the respondent, whether such proceeding is initiated before or after the commencement of the Act. Under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in exercise of its jurisdiction - original or appellate - could be broadly classified as (i) proceeding-civil, (ii) proceeding-criminal, and (iii) proceeding-revenue, and where the case did not involve a substantial question as to the interpretation of the Constitution, what would lie from an order passed in a proceeding-civil would be an appeal to the Supreme Court with certificate granted under Article 133 of the Constitution, and from a judgment, final order or sentence in a criminal proceeding what would lie to the Supreme Court would be an appeal with certificate granted under Article 134 of the Constitution, but from an order passed in a proceeding relating to revenue, the right of appeal may be exercised only with the leave of the Supreme Court. The issue was addressed by the Supreme Court from a perspective which required examination of the kind of rights conferred, the kind of remedies provided and the kind of final orders that may be passed upon conclusion of a proceeding and the answer was provided in paragraph 8 thus : 8. .................... Counsel relies upon the classification or proceeding made in Article 132(1) and seeks to contrast it with the phr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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, deliver of specific property, enforcement of personal rights, determination of status etc. 21. It would be clear now that a proceeding in which the party asserts the existence of civil rights conferred by the civil law or by statute and claims a relief for breach thereof would be a proceeding of civil nature and the proceeding which upon conclusion results in the imposition of sentences, such as death, imprisonment, fine or forfeiture of property would be a proceeding of criminal nature. This would also tell us that it is not the nature of the tribunal invested with an authority to grant relief which determines the character of a proceeding and it is the nature of the right violated and the relief prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If there is any disturbance, mental or physical for a woman member of the family, it would have it's deleterious effect on the health of the family as a whole. A disturbed and distressed family would not be able to give its contribution to the society to grow, develop and flourish in the world community. 24. If we go through texts of different religions, we would find that at different points of time, in the history of human civilizations, there are instances when women and womanhood have been respected, revered and sometimes even put on a high pedestal. Israelites considered Deborah as mother of Israel and she has been eulogized in a poem in Judges 5, in words, Till you arose, O Deborah, Arose, O mothers, in Israel ! One of the Ten Commandments found in Exodus, Chapter 20, calls upon children to honour their father and mother in the words, Honour your father and your mother, that your days may be prolonged upon the land which the Lord, your God giveth you . In the old testament, it is said that God created man in his own image, in the image of God He created him, male and female He created them and God said to them, Be fruitful and increase in number; fill the earth and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should provide us an insight into the scheme of the D.V. Act and help us understand the nature of a proceeding initiated in it and the procedure applicable to it. 27. The Statement of Objects and Reasons, as we can see, has acknowledged that even though domestic violence is widely prevalent in Indian society and one aspect of it, albeit a smaller one, has also been dealt with as an offence punishable under Section 498-A of the Indian Penal Code, the issue has remained largely ignored by the civil law. In order to remove this deficiency in civil law and keeping in view the rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India, the Parliament has enacted the D.V. Act to provide for a remedy under the civil law. Further examination of the scheme of the D.V. Act would show that the Act not only deals with various acts and omissions which would constitute domestic violence by laying down an elaborate definition of domestic violence in Section 3 of the Act, but also provides for different reliefs that can be obtained by an affected woman described and defined as aggrieved person in Section 2(a) and the procedure by which such reliefs can be obtained. A n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.P.C. to all the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 except as otherwise provided in the D.V. Act and subject to power of the Court to lay down different procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23 in a particular case. Section 29 prescribes that appeal from the order made by the Magistrate shall lie to the Court of Session, within thirty days from the date of an order. 29. It would be clear from these provisions that what they essentially create is a plethora of civil rights breach of which results in basically providing civil remedies which are alien to criminal law. These rights and remedies are such as; right against domestic violence to be realized through a prohibitory order (Section 18), right to reside in a shared household and right from being dispossessed or disturbed in enjoying the possession of a shared household to be realized through a suitable restraining order (Section 19), right to get monetary reliefs and compensation (Sections 20 and 22), right to seek temporary custody of the child (Section 21) and right to seek interim and ex parte orders in certain case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view to provide teeth to the powers of the Court. After all, a court of Judicial Magistrate, First Class with a jurisdictional sway over the police stations, would be in a better position to lend help to the aggrieved person in executing the orders passed by it. But, in order to give more option to and widen the choice of the forum of the aggrieved person, it is laid down in Section 26 that the reliefs under the D.V. Act could also be sought in other proceedings before other courts - civil or criminal, affecting the aggrieved person and the respondent. 32. Making of criminal and civil courts simultaneously as appropriate fora to obtain the reliefs provided under the D.V. Act is a certain pointer to the fact that the character of the proceeding is not dependent 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 kind of relief that may be had. We have already seen that rights created and remedies provided for in the D.V. Act are basically of civil nature. 33. At the same time, we can also not ignore some procedural and penal provisions in the D.V. Act and Rules, 2006 to which we will shortly re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of civil remedies. It were the speed and fear of the criminal procedure generally and the penal consequences visiting the respondent for some of his indiscretions would what really make a disobedient respondent behave. So, as an effective tool in the hands of the Court and the aggrieved person, the procedure to be followed generally is criminal and breach of protection order and directions issued in such order constitute two separate and distinct offences. Obviously, they have no bearing upon and do not determine the basic character of the proceeding initiated under Section 12 (1) of the Act which is by and large of the civil nature. Making of breach of the protection order or failure to perform by the protection officer duty in terms of the direction given by the Magistrate in the protection order are only instances of efficacy and inherent punch of the remedy provided under Section 18 of the Act which is at its core civil in nature. These provisions at best, are the effective instruments by which to make available speedily the remedies under the Act to the aggrieved person and enable her to enjoy the fruits of the remedies. 36. This is also, as we find, in keeping with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the applications under Section 12 (1) of the D.V. Act, held that the proceedings are predominantly of civil nature. The observations of the Hon'ble Apex Court appearing in paragraph 11 are relevant and they are reproduced as under :- 11. We have already mentioned the prayers which were made by Respondent 1 in the original petition and Prayer A thereof relates to Section 9. However, in Prayer B, Respondent 1 also sought relief of grnt of monthly maintenance to her as well as her children. This prayer falls within the ambit of Section 20 of the DV Act. In fact, Prayer A is covered by Section 18 which empowers the Magistrate to grant such a protection which is claimed by Respondent 1. Therefore, the petition is essentially under Sections 18 and 20 of DV Act, though in the heading these provisions are not mentioned. However, that may not make any difference and, therefore, no issue was raise by the appellant on this count. In respect of the petition filed under Sections 18 and 20 of the DV Act, the proceedings are to be governed by the Code, as provided under Section 28 of the DV Act. At the same time, it cannot be disputed that these proceedings are predominantly of ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould the nature of the proceedings decide the fate of Section 28 or the intention of the Parliament as expressed in Section 28 of the D.V. Act would ? To find out an answer, as a first step, we must look into the express language of the provision of Section 28 of the D.V. Act and then if required, we may look for external aids, if any, as dictated to us by the settled principles of statutory interpretation. 43. The first and foremost rule of construction is the rule of literal construction. According to this rule, if the language of the provision is clear and unambiguous and expresses legislative intent in no uncertain terms, that intent must be given effect to and in such a case there is no need to resort to the other rules of construction of statute or take assistance from any other external aid of construction. The rule is succinctly expounded by the Hon'ble Apex Court in the case of M/s. Hiralal Ratan Lal v. The Sales Tax Officer, and another - AIR 1973 SC 1034. The relevant observations of the Apex Court appearing in paragraph 21 are as under : 21.................... In construing a statutory provision, the first and the foremost rule of construction is the literary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Tata Consultancy Services v. State of A.P. - (2005) 1 SCC 308, the Hon'ble Supreme Court has cautioned the Courts by observing that the Court should not be overzealous in searching for ambiguities or obscurities in the words which are plain. 46. Let us now examine the provision of Section 28 of the D.V. Act, in the light of these well settled rules of statutory construction. It reads thus : 28. Procedure - (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. 47. A plain reading of the section impels us to say and say only that the language used therein is plain and unambiguous and that it does not leave any scope to doubt that what it connotes expressly is what the Parliament means to convey. It would then follow that there is no need to resort to any external aids or other rules of construction to interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated only to ensure that the disadvantages of some of the provisions of Cr.P.C. especially those applicable at the initial stage of issuance of notice and also at the time of recording of evidence, do not bog down the proceeding leading to delay in it's conclusion. In any case, these provisions stand only as exceptions to the generality of the provision of sub-section (1) of Section 28 of the D.V. Act and we may say, if we could say, proverbially exceptions prove the general rule. 50. Coming to the second part of Section 28 of the D.V. Act, which is in sub-section (2), our view is no different than what we hold for the other exceptions we have expressed our mind on. This provision also stands as an exception to the generality of the applicability of the provisions of Cr.P.C. It only enables the Court to lay down it's own procedure, notwithstanding the general applicability of the provisions of Cr.P.C. to all the proceedings under the D.V. Act, as laid down in Section 28(1). As it is only an enabling provision of law, it may or may not be put to use by the Court in a given case and everything will depend upon fact situation of each case. An enabling section, empowering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... combined reading of all these provisions of law would only strengthen the conclusion so reached by us. 52. If the concept of limited applicability of the provisions of the Cr.P.C., as propounded by Shri C.A. Joshi, learned Counsel for the respondent is accepted, in our considered view, it would defeat the very object of the Act which is to provide effective protection to women against the incidence of domestic violence. If the Parliament, intended to provide for a remedy under the civil law, it also intended to make the remedy effective and meaningful by laying down for general applicability of the criminal procedure, subject to the exceptions created in the Act. It has envisaged that the job of providing effective remedy to the aggrieved person is best performed by the Courts only when the procedure adopted to do it is informed by the best of both the worlds. That is the reason why the Parliament has provided for general applicability of the criminal procedure and has also simultaneously given freedom to the Court to devise it's own procedure in a particular case so as to suit the exigencies of that case. We may add here that language used in Section 28(2) is significant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Division Bench appearing in paragraph 19 of the judgment are reproduced as under : 19. In view of the discussion and the observations made by us herein above, once the provision of the Code has been made applicable, it cannot be said that remedy under Section 482 of the Code would be unavailable to the aggrieved person. But the said aspect is again subject to self-imposed restriction of power of the High Court that when there is express remedy of appeal available under Section 29 before the court of Session or revision under Section 397, the Court may decline entertainment of the petition under Section 482 of the Code. But such in any case would not limit or affect the inherent power of the High Court under Section 482 of the Code. 55. At this juncture, we would like to go back to the observations of the Hon'ble Apex Court made in paragraph 11 of its judgment in Kunapareddy (supra) wherein the Hon'ble Supreme Court finding that the petition in that case was essentially under Sections 18 and 20 of the D.V. Act held that though it could not be disputed that these proceedings are predominantly of civil nature, the proceedings were to be governed by Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 482 to the proceedings under Section 12(1) of the D.V. Act and it is achieved by removing its applicability. The issue can be examined from a different angle as well. 58. A plain reading of Section 482 of Cr.P.C., which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice. This would mean that not only the respondent-man but also the aggrieved person-woman may feel like approaching the High Court to give effect to any order or to prevent abuse of the process of Court or to secure ends of justice. This would show that this p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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