Crl. Misc. No.M-33855 of 2013 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. Misc. No.M-33855 of 2013 Date of decision :
16. 07.2014 Parvinder Kaur @ Binder Kaur and another ......Petitioner(s) Versus State of Punjab and another ...Respondent(s) CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY1 Whether Reporters of local papers may be allowed to see the judgment?. Yes/No 2. To be referred to the Reporters or not?. Yes/No 3. Whether the judgment should be reported in the digest?. Yes Present: Mr. Abinash Jain, Advocate for the petitioners. Mr. Gazi Mohd., D.A.G. Punjab. Mr. Kshitij Sharma, Advocate (Amicus Curiae) for respondent no.2. **** ANITA CHAUDHRY, J(ORAL) 1. This is a petition under Section 482 Cr.P.C. for quashing the order (Annexure P-4) dated 23.07.2013 passed by the Judicial Magistrate Ist Class, Ludhiana who allowed the application (Annexure P-1) and restored the complaint filed under the Domestic Violence Act, 2005.
2. The brief facts necessary for disposal of the case are briefly being noticed. Daljot Kaur-respondent no.2 filed a complaint under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005. That complaint was dismissed for non- prosecution on 26.03.2012 on the failure of appearance of the Sunil 2014.07.23 13:46 I attest to the accuracy and integrity of this document Crl. Misc. No.M-33855 of 2013 2 complainant. A restoration application (Annexure P-1) was filed which was allowed after hearing both the sides. The order passed on the application has been assailed.
3. I have heard both the sides.
4. The contention raised on behalf of the petitioners is that the Magistrate had no power to review and recall its order as there is no provision for restoration of a complaint filed under the Criminal Procedure Code and the only remedy is under Section 482 Cr.P.C. Referring to the case of Suresh and others Vs. Rekha 2010(1) RCR (Criminal) 45, it was urged that there a complaint was dismissed in default and the Sessions Judge had restored the same and it was held that since the Magistrate could not recall its order and it had declined to review its own order, the proper course was to file revision and here the proceedings under the Domestic Violence Act are criminal in nature and the complaint could not have been restored. Reliance was placed upon Adalat Prasad Vs. Rooplal Jindal 2004(4) RCR (Criminal) 1.
5. The submission on behalf of the private respondent is that the authority referred to by the petitioners is not applicable as it did not deal with the Domestic Violence Act and the proceedings under Section 12 of the Domestic Violence Act are not criminal proceedings but are civil proceedings and the case could be restored. It was urged that before the Bombay High Court, when the Magistrate had taken cognizance of a complaint under Section 12 of the Domestic Violence Act, it was challenged under Section 482 Cr.P.C. of the Criminal Sunil 2014.07.23 13:46 I attest to the accuracy and integrity of this document Crl. Misc. No.M-33855 of 2013 3 Procedure Code and it had been held that the provisions of the Criminal Procedure Code could not be invoked. It was urged that the Hon'ble Gujrat High Court in Jaydipsinh Prabhatsinh Jhala and others Vs. State of Gujrat and others 2010(5) RCR (Criminal) 31 had taken a view that the proceedings under the Domestic Violence Act were not strictly criminal in nature. It was urged that Bombay High had taken a view that the proceedings under Section 125 Cr.P.C. are of civil nature and they are dealt with summarily in criminal Courts only for expeditious disposal on the grounds of convenience and social order and the respondent is never arrayed as an accused. It was urged that the proceedings under the Domestic Violence Act are akin to the proceedings under Section 125 Cr.P.C. Reliance was placed upon Mangesh Sawant Vs. Minal Vijay Bhosale and another 2012(5) RCR (Civil) 436,Jaydipsinh Prabhatsinh Jhala and others Vs. State of Gujrat and others 2010(5) RCR (Criminal) 31, Pandharinath Sakharam Thube Vs. Kum. Surekha Pandharinath Thube 1999(4) RCR (Criminal) 19. Sk. Alauddin @ Alai Khan Vs. Khadiza Bibi @ Mst. Khodeja Khatun and others 1992(1) DMC268.
6. This petition has been filed for quashing the order (Annexure P-4) that had been passed by the Judicial Magistrate vide which the application for restoration of the petition had been allowed. The main contention of the petitioners is that a complaint which had been dismissed for non-prosecution could not have been restored and reliance had been placed upon Adalat Prasad's case and Sunil 2014.07.23 13:46 I attest to the accuracy and integrity of this document Crl. Misc. No.M-33855 of 2013 4 Suresh Kumar's case (supra). Both the authorities referred to by the petitioners are not applicable as none of them relate to the proceedings under the Domestic Violence Act.
7. The Kerala High Court in Dr. V.K. Vijayelekshmi Amma Vs. Bindu 2010(6) RCR (Civil) 1046, was dealing with a petition under the Domestic Violence Act, 2005. The question raised was whether the extra ordinary jurisdiction of the High Court under Section 482 Cr.P.C. could be invoked to quash the petition filed by a person claiming to be an aggrieved person against respondent for reliefs provided under the Act. The relevant portion of Para Nos.10, 11 and 19 of the judgment are as under:- “10....................The question whether the extra ordinary inherent powers under section 482 of Code of Criminal Procedure is to be exercised by the court to quash a proceeding initiated under the Protection of Women from Domestic Violence Act, 2005 is to be considered in the background of the settled legal position. For a better appreciation of the relevant aspects, it is necessary to bear in mind the object and purpose of the Act. The Act was enacted to provide for more effective protection of rights of woman guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and incidental thereto. Relevant portion of the Statement of Objects and reasons of the Act reads:- 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."(underline supplied).”. “11. It is clear that the Act was enacted to provide "a remedy under civil law" to protect the woman from being victims of domestic violence and to prevent occurrence of domestic violence in the society.”
. “19........................a party against whom proceedings were initiated by the Magistrate under section 12, on a petition filed Sunil under section 12(1) of the Act seeking relief under section 18 to 2014.07.23 13:46 I attest to the accuracy and integrity of this document Crl. Misc. No.M-33855 of 2013 5 23, has adequate remedy before the Magistrate, it is not for the High Court to exercise the extraordinary inherent powers and quash the proceedings. Section 482 is to be invoked in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of process of any court or to secure the ends of justice, when cognizance was taken by the Magistrate for an offence under sub section (1) of Section 31 or Section 33 of the Act. In all other cases, the affected party could raise the question and seek an order from the Magistrate including the maintainability of the proceedings and if an order is passed against him, he is at liberty to file an appeal as provided under section 29 of the Act. If that be so, it is not for this court to invoke the extraordinary jurisdiction under section 482 of the Code of Criminal Procedure, to quash a proceeding initiated under section 12(1) of the Act.”. 8. The Gujrat High Court in Jaydipsinh's case (supra) held that the proceedings under the Domestic Violence Act were not strictly criminal in nature and the proceedings were in the nature of civil remedy emphasizing the fact that the Magistrate while disposing of the application under Section 12 could lay down its own procedure for disposal.
9. In the light of the above, it is held that the petition under Section 482 Cr.P.C. could not be filed. The petition is dismissed. 16.07.2014 (ANITA CHAUDHRY) sunil JUDGE Sunil 2014.07.23 13:46 I attest to the accuracy and integrity of this document