Madras High Court: In 32 cases regarding domestic violence filed under Section 482 Code of Criminal Procedure, 1973 (CrPC), the full bench of P.N. Prakash ,Teekaa Raman and A.D Jagadish Chandira, JJ. held a petition under Section 482 CrPC challenging a proceeding under Section 12 of the D.V. Act is not maintainable and a petition under Article 227 of the Constitution is maintainable on a limited ground of patent lack of jurisdiction.
The Court decided the following two issues in the matter:
- Whether a proceeding under Section 12 of the Domestic Violence Act, 2005 (‘DV Act’) can be challenged under Article 227 of the Constitution or under Section 482 of Code of Criminal Procedure, 1973 (CrPC)?
Whether the aforesaid remedy is available to an aggrieved person before approaching the Magistrate and, if necessary, the Sessions Court, by way of an appeal under Section 29 of the D.V. Act?
Note: This post covers the first issue.
Dealing with the first issue, the Court noted that even after this decision in M. Muruganandam v. M. Megala, 2010 SCC OnLine Mad 6012, wherein, it was held that a petition under Article 227 of the Constitution was maintainable against a complaint instituted under Section 12 of the D.V. Act, petitions challenging proceedings under Section 482 CrPC were being filed and entertained in Court, presumably on the ground that complaints under the D.V. Act were akin to a complaint under Chapter XV of the CrPC. However, it was not held that a petition under Section 482, CrPC. was not maintainable.
Further, it was noted that in P. Pathmanathan v. Tmt. V. Monica, 2021 SCC OnLine Mad 8731, it was held that an application under the D.V. Act could not be equated to a complaint in Section 2(d) of the CrPC, as a complaint for grant of one or more reliefs under Section 12 of the D.V. Act did not contemplate any action in respect of an offence but was a petition for grant of civil reliefs. Further, in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774, it was held that all the reliefs granted by the Magistrate under the D.V. Act were civil in nature, and that an offence under Section 31 of the D.V. Act would be made out only if there was a breach of a protection order made under the Act.
The Court took note of the statement of objects and reasons of the DV Act and said that the object of the legislation is to provide women with civil remedies against acts of domestic violence. Further, it examined the salient features of the Act and said that at the stage of considering an application under Section 12 of the D.V. Act, the Magistrate does not perform his conventional role of trying any offence and is merely considering an application for grant of civil reliefs under the D.V. Act.
Further, the Court said that the division bench erred in P. Ganesan v. M. Revathy Prema Rubarani, 2022 SCC OnLine Mad 3598, in holding that although the D.V. proceedings initiated on an application under Section 12 are civil proceedings, the Magistrate is nonetheless a Criminal Court as the procedure he is required to follow is one under CrPC. Thus, it is not substantive law, but procedural law that determines the character of the Court of the Magistrate.
The Court examined the correctness of the division bench in the above case and said that Section 6 CrPC does not purport to define a Criminal Court, and merely enumerates the various classes of Criminal Courts under the Code. Thus, it relied on the definition provided in Black’s Law Dictionary (9 th Edition) and held that an application under Section 12 of the D.V. Act, not being a proceeding involving the trial and determination of offences, does not, textually or contextually, fit in the aforesaid definition of a Criminal Court as it is not a criminal matter by any stretch of imagination.
Further, by applying the test as to what constitutes a “criminal proceeding”, laid down in Ram Kishan Fauji v. State of Haryana, (2017) 5 SCC 533, it was said that the character of the proceeding before the Court in an application under Section 12 of the D.V. Act is civil and not criminal in nature.
Placing reliance on National Telephone Co. Ltd. v. Postmaster General, 16  A.C. 546, wherein it was held that “when a matter is to be adjudicated by a Court, the normal incidents of the procedure of that Court automatically attaches to it during the adjudication of a dispute” and said that this principle finds its manifestation in Section 4 of the CrPC which makes the provisions of the Code applicable, by default, to the inquiry and trial of all offences under the IPC and other laws. However, as the Magistrate deciding an application under Section 12 of the D.V. Act is not a Criminal Court trying an offence, thus, Section 4, CrPC. would have no application to the matters before it.
Thus, the legislature, being aware of this position, engrafted Section 28(1) of the DV Act, which states that the procedure before the Magistrate is to be “governed” by the CrPC. The opening words of Section 28(1) begin with the expression “Save as otherwise provided in this Act” which indicates that the special procedure set out in the Act would prevail over the procedure under the CrPC. This was necessary since the enquiry conducted by the Magistrate under the D.V. Act is not akin to an enquiry under Chapter XV of the CrPC., which deals with the procedure for taking cognizance of offences.
The Court opined that the legislature was conscious of the fact that the Magistrate was required to grant civil reliefs under Sections 18 to 22 of the D.V. Act, thus, a wholesale application of the provisions of the CrPC would have been unworkable and therefore, a special procedure was devised. Further, it was said that the D.V. Act do not prescribe the mode of inquiry and trial by any of the five forms of Trail as per the CrPC, because Magistrate in D.V. proceedings is not conducting a trial, but an enquiry.
The Court observed that the legislature has not stated that “the Code would apply to the proceedings under the D.V. Act” but has only stated that “the proceedings shall be governed by the provisions of the CrPC”. Thus, the division bench in P. Ganesan (supra), has fallen in error by holding that the Magistrate “must follow the procedure under the CrPC”, though exception was provided under Section 28(2) of the Act, that the magistrate can lay down its own procedure.
The Court said that the character of the proceedings must be ascertained having regard to the nature of the subject matter and the reliefs sought and disagreed with P. Ganesan(supra), wherein it was said that “the nature of the procedure adopted would determine the character of the Tribunal”, as this would imply that a Criminal Court must be defined not as one “with jurisdiction over criminal matters”, but as one which “exercises criminal procedure over certain matters”. Further, rejected the conclusion in P. Ganesan(supra), that it is open to any judge of this Court to exercise inherent jurisdiction in criminal matters irrespective of portfolio may not reflect the correct legal position.
[Arul Daniel v. Suganya, 2022 SCC OnLine Mad 5435, decided on 17-11-2022]
Advocates who appeared in this case :
Advocate P. Chandrasekar Advocate, R. Balakrishnan, Advocate Pon Pandian, Advocate M.L. Ramesh, Advocate M. Senthilkumar, Advocate Adithya Varadarajan, Advocate. Murugesan, Advocate S. Karthikei Balan, Advocate G.S. Thilagavathi C, Advocate P. Saravanan, Advocate M. Soundar Vijay Arulram, Advocate D. Nandhagopal, Advocate K. Muthumalai, Advocate N. Jothi, Advocate. M. Sathish Kumar, Advocate M. Anandan, Advocate R. Dineshkumar, Advocate S. Udhaya Kumar, Advocate S. Vijayakumar Advocate D. Kamachi, Advocate K. Thenrajan, Advocate B. Kumarasamy, Advocate S. Vennila, Advocate S.N. Subramani, Advocate B. Kumarasamy, Advocate L. Sivakumar, Advocate R. Siva, Advocate L. Mahendran, Advocate T. Shanmugam, Advocate K. Myilsamy, Advocate K. Venkateswaran, Advocate N. Naganatha;
Counsel who assisted the Court: Advocate Nithyaesh Natraj, Additional Public Prosecutor Muniyapparaj, Additional Public Prosecutor Babu Muthu Meeran.
*Apoorva Goel, Editorial Assistant has reported this brief.