Petition U/s 482 CrPC Seeking Quashing Of A Domestic Violence Application Not Maintainable: Madras High Court
The High Court held that an appeal under Section 482 of the Code of Criminal Procedure (CrPC) to quash a lawsuit under Section 12 of the Domestic Violence Act was not admissible.
The Court noted that a petition under Article 227 of the Constitution can be preserved if it is determined that the proceedings before the Magistrate are subject to a patent lack of jurisdiction.
The case at hand was Dr. P Pathmanathan v. V Monica [Crl OP No. 28458 of 2019 and connected matters].
The judgement was passed by a bench of Madras High Court consisting of Justice N Anand Venkatesh.
Justice N. Anand Venkatesh thus observed when rejecting a batch of petitions filed under Section 482 of the CrPC seeking to quash cases filed under Section 12 of the Domestic Violence Act.
The court, to hold accordingly, noticed that, in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774, it was held that an application before a Magistrate for at least one relief under Chapter IV of the DV Act, are considerate in nature, and are procedures to vindicate the social liberties of a bothered individual.
The justice also disagreed with the opinion held by the Kerala High Court in Baiju v. Latha, (2011) 3 KLJ 331, in which it was noted that the Magistrate's or Metropolitan Magistrate's court serves as a criminal court when discharging duties under the Act, while some of the reliefs it could offer under an act of civil nature.
The Court also disagreed to the statement of the Full Bench of the Bombay High Court in Prabhakar Mohite v State of Maharashtra that a petition under Section 482 of the Code seeking dismantling of a grievance under the DV Act could be maintained.
The Court observed that in a variety of cases under the DV Act, the Magistrates mechanically follow the protocol laid down in Sections 190(1)(a), 200 to 2 04, Cr.P.C and give a summons as if the respondents before it were charged with an offence.
DIRECTIVES GIVEN IN THE JUDGEMENT
Regulation in line with Section 12 of the D.V. The Act is not a lawsuit under Article 2(d) of the Cr.P.C. Consequently, the process laid down in Sections 190(1)(a) & 200 to 204, Cr.P.C, in respect of cases brought against a complaint, has no application for prosecution under the DV Act. Accordingly, the Magistrate cannot consider a submission under the D.V Act as though it were a complaint under the Cr.P.C.
An application under Section 12 of the Act will be as set out in Form II of the D.V Rules, 2006, or as almost as conceivable thereto. On the off chance that break ex-parte orders are looked for by the bothered individual under Section 23(2) of the Act, an oath, as examined under Form III, will be pledged to.
The Magistrate will not issue a bring under Section 61, Cr.P.C to a respondent(s) in a procedure under Chapter IV of the D.V Act. All things being equal, the Magistrate will give a notification for appearance which will be as set out in Form VII affixed to the D.V Rules, 2006.
The physical presence of the respondent(s) shall not generally be insisted upon if the parties are effectively represented by a solicitor.
If the respondent(s) does not appear in person or through a lawyer in response to a notice under Section 13, the Magistrate can proceed to terminate an ex-parte application.
It is not necessary for the Magistrate to send notices to all parties that have been arrayed as respondents to an application under Section 12 of the Act. In all cases concerning family and other third parties to a matrimonial partnership, the Magistrate shall lay down the grounds on which they have been compelled to give notices to those parties.
As there is no process under Section 204, Cr.P.C in the 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, which is not subject to review or recall once issued, will not apply to the proceeding under the DVA.
Every individual that has been aggrieved will still have access to Section 25, which expressly authorizes the Magistrate to extend, amend or cancel any order under the Act on the grounds of a change of circumstances.
It would be open to any respondent(s) at any stage of the proceedings to ask the Magistrate to remove their names from the array of respondents if they were not properly joined as parties.
It would also be sufficient for the Magistrates to review the applications at the threshold and to confine the investigation only to those individuals whose presence before it is appropriate and necessary to offer relief according to Chapter IV of the D.V. Act.
While recording evidence, the Magistrate may resort to chief examination of the witnesses to be furnished by affidavit.
A judicious use of this power would ensure that the proceedings under the D.V. Act do not constitute a weapon of harassment and would prevent the proceedings of the Court from being abused by bringing all parties together as parties to the list. This entails a very broad spectrum of the DVA.
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