Can a petition under Section 482 CrPC be filed to quash a Domestic violence complaint ?
Madras HC and Bombay HC (Full Bench Judgments)
In a judgment delivered last month, the Madras High Court (Full Bench) in Arul Daniel vs Suganya held that a petition under Section 482 Cr.P.C. challenging a proceeding under Section 12 of the Domestic Violence Act is not maintainable. According to the High Court, only a petition under Article 227 of the Constitution is maintainable on a limited ground of patent lack of jurisdiction. The Full Bench upheld the view taken by single bench in Dr. P. Pathmanathan v. V. Monica: (2021) 2 CTC 57. According to the High Court, the character of a proceeding under the DV 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. Therefore, it held that Section 482 CrPC cannot be invoked.
By holding thus, the Madras High Court disagreed with the view taken by the Full Bench of Bombay High Court in Nandkishor Pralhad Vyawahare v Mangala 2018 Cr.L.J.2992. The Bombay High Court had held that ‘Section 28 of the D.V. Act announces clearly and without any ambiguity the intention of the Parliament to apply the criminal procedure generally subject to the exceptions given under the Act. So, the inherent power of the High Court under Section 482 of Cr.P.C., subject to the self-imposed restrictions including the factor of availability of equally efficacious alternate remedy under Section 29 of the D.V. Act, would be available for redressal of the grievances of the party arising from the orders passed in proceedings under Sections 12, 18, 19, 20 21, 22 and 23 and also in respect of the offence under Section 31 of the D.V. Act.’
Calcutta HC
The Calcutta High Court in Chaitanya Singhania vs Khusboo Singhania held that there is no bar to invoke Section 482 CrPC in Domestic Violence Act cases. It observed: It is needless to say that the Protection of Women from Domestic Violence Act, 2005 is a special law. At the risk of repetition, it is recorded that Section 28 of the said Act clearly states that all proceedings under Section 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provision of the Code of Criminal Procedure, 1973. Thus, when the Special Act clearly lays down the procedure of trial of the proceedings under the said Act, there is absolutely no reason to apply any other procedure. The only exception being in Section 26 of the said Act is where a civil suit is pending between the parties, the aggrieved person can pray for relief under Section 18-23 in the said suit. The court held as follows:
(i) Respondent(s) can challenge maintainability of an application under Section 12 of the said Act filled by the aggrieved person before the Court of the learned Magistrate immediately after appearance in the proceeding by filing appropriate petition.
(ii) The Learned Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 of the said Act after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the said Act against the order passed by the learned Magistrate under the provision of Section 29 of the said Act before the learned sessions judge.
(iii) Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 of the Code shall lie.
(iv) Alternatively, a respondent may file an application under Section 482 of the Code of Criminal Procedure challenging maintainability of a proceeding under Section 482 of the Code for quashing of the proceedings immediately on receipt of notice before the High Court.
(v) An order upon an application challenging maintainability under Section 12 of the said act shall not be assailed under Article 227 of the constitution.
Delhi HC, Rajasthan HC, Karnataka HC and Madhya Pradesh HC views noted
In this judgment, the court noticed that a similar view was taken by the Delhi High Court in Bijoy Verma Vs. State (NCT Delhi) reported in ILR 2011 Del 36, by Rajasthan High Court in Nisanth Hussain Vs. Sima Saddique (2012) SCC Online Raj 2873, by Karnataka High Court in Smt. Nagarthama Vs. M.S. Valithasharee (2016) SCC Online Kar 1437, Avinash Madhav Deshpande & Ors. vs. Madhuri Satish Deshpande & Ors. 2018 SCC online Bom 17170. The court also noticed that in Suresh Ahirwar vs. Priya Ahirwar [M. Cr. C No.22777/2017], the Madhya Pradesh High Court quashed a proceeding under Section 482 of the Code where aggrieved person impleaded some persons as respondents in a proceeding under Section 12 of the said Act with whom she had no domestic relationship.
We need clarity from Apex court on this, to settle it .