Madhya Pradesh High Court
Padam Jain vs Seema Jain on 27 August, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1 CRR-5748-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRR No. 5748 of 2023
(PADAM JAIN Vs SEEMA JAIN AND OTHERS )
Dated : 27-08-2024
Shri Pradeep Banerjee - Advocate for the applicant.
Shri Rahul Gupta - Advocate for the respondents.
This Criminal Revision under Section 397/401 of Cr.P.C has been
filed being aggrieved by the order dated 7.11.2023 passed by Twenty Fifth
Additional District Judge, Jabalpur in Criminal Appeal No. 191 of 2023 by
which the order dated 6.9.2022 passed by Judicial Magistrate First Class,
Jabalpur in Criminal Case No. 536 of 2021 has been affirmed and the appeal
has been dismissed.
2. The counsel for the applicant contends that the respondent herein
approached the trial Court by filing a complaint under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as the Act of 2005). Along with the said application, an
interlocutory application was filed seeking an interim protection order.
While dealing with the said application, the trial Court passed the order dated
6.9.2022 by which an interlocutory order of protection was passed in favour
of respondent No.1. The said order so passed by the trial Court was assailed
by the present applicant by filing an appeal under Section 29 of the Act of
2005 before the Appellate Court. The Appellate Court vide order dated
7.11.2023 dismissed the appeal. Hence, assailing the orders passed by the
trial Court as well as by the Appellate Court, this Criminal Revision has been
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filed.
3. It is contended by the counsel that the trial Court grossly erred in
passing the order impugned as there was no basis to pass such an order. It is
contended by the counsel that the applicant is a very poor person and
surviving on the pension granted by the government. On the contrary,
respondent No.1 is owner of various properties details of which have been
brought on record as Annexure A-10. It is also contended by the counsel that
without perusal of the document pertaining to the fact that respondent is
having another house where she is running the school and coaching classes,
the trial Court has passed the impugned order which is unsustainable. The
counsel further submits that in view of the judgment of the Allahabad High
Court in Criminal Revision No.582/2016 (Dinesh Kumar Yadav Vs. State of
U.P. and Anr. ), this revision is maintainable. Accordingly, the impugned
order passed by the trial Court as well as the Appellate Court deserve to be
set aside.
4 . Per contra, the counsel for respondent No.1 submits that this
Criminal Revision is not maintainable and therefore, deserves to be
dismissed as the same is arising out of an interlocutory order. As per Section
397(2) of Cr.P.C., a revision against the interlocutory order is not
permissible. It is the further contention of the counsel that order passed under
the provision of the Act of 2005 are civil in nature and therefore, criminal
appeal even otherwise was not maintainable before the Appellate Court and
this Criminal Revision before this Court is also not maintainable. In support
of this contention, the counsel has strongly relied upon the judgment of the
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Indore Bench of this Court in the case of M.C.r.C. No.52034/2022 (Ankit
Gehlot and Ors. Vs. Smt. Anjali) and also on the decision of Jammu &
Kashmir High Court in the case of Khalid Amin Kohli Vs.Union Territory of
J and K and Ors. in CRM (M) No.317/2020.
5. Heard submissions and perused the record.
6 . The counsel for the applicant has placed strong reliance on the
decision of Dinesh Kumar Yadav (supra), wherein a single Bench of the
Allahabad High Court, while dealing with an issue of maintainability of a
criminal revision against an order passed by the appellate Court in respect of
an interlocutory order passed by the trial Court, referred the matter to the
larger Bench for consideration and while referring the same, following two
questions were framed:-
“(i) whether a revision under section 397/401 of the
code of Criminal Procedure, 1973 is maintainable
before the High Court challenging an order passed by
the Court of Sessions under section 29 of the Act,
2005?
(ii) Whether the decisions in the case of Nishant
Krishna Yadav (Criminal Revision No. 4016 of 2015)
and Manju Shree Robinson v. State of UP (Writ Petition
No. 7926 (MS) of 2015), lay down the law correctly on
the question of maintainability of a Revision under
section 397/401 of the code of Crimminal Procedure
before the High Court against an order passed by the
Court of Sessions under section 29 of the Act, 2005 in
view of the earlier decisions of the Supreme Court in
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Pradesh, National Sweing Thread Co. Ltd.
Chidarhbaram v. James Chadwaick and Bros,
Maharashtra State Financial Corporation v. Jayee Drugs
and Pharm and ITI Ltd. v. Siemens Public
Communications Networks Ltd.”
7 . The aforesaid reference was answered by the Full Bench of the
Allahabad High Court and it was observed that as the remedy of appeal has
been provided under Section 29 of the Act of 2005 before a Court of
Sessions, which means a Court of Sessions referred under Section 6 read
with Sections 7 and 9 of the Cr.P.C., without saying anything more as
regards the procedure to be followed in such appeal, and there being nothing
to the contrary in the Act of 2005, which may be indicative of exclusion of
the application of the provisions of Cr.P.C. to such an appeal, the normal
remedies available against a judgment and order passed by a Court of
Sessions by way of appeals and revisions prescribed under the Cr.P.C.
before the High Court, are available against an order passed in appeal under
Section 29 of the Act of 2005. The Full Bench of the Allahabad High Court
held in Paragraph 37 as under:-
37. In view of the above, as the remedy of an appeal
had been provided under section 29 of the Act, 2005
before a Court of Sessions, which means a Court of
Sessions referred under section 6 read with sections 7
and 9 of the Cr. P.C., without saying anything more as
regards the procedure to be followed in such appeal,
and there being nothing to the contrary in the Act of
2005 which may be indicative of exclusion of theSignature Not Verified
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application of the provisions of Cr. P.C. to such an
appeal, the normal remedies available against a
judgment and order passed by a Court of Sessions by
way of appeals and revisions prescribed under the Cr.
P.C. before the High Court, are available against an
order passed in appeal under section 29 of the Act,
2005.
8. Accordingly, the Full Bench of the Allahabad High Court concluded
that a revision under Section 397/401 of Cr.P.C. is maintainable against the
judgment and order passed by the Court of Session under Section 29 of the
Act of 2005.
9. The aforesaid judgment of Full Bench of the Allahabad High Court
does not take into consideration the decision of the Apex Court
i n Kunapareddy Vs. Kunapareddy – (2016) 11 SCC 774 wherein the Apex
Court observed that the proceedings under the Act of 2005 are civil in nature
and held in Paragraph 12 as under:-
12. In fact, the very purpose of enacting the DV Act
was to provide for a remedy which is an amalgamation
of civil rights of the complainant i.e. aggrieved person.
Intention was to protect women against violence of any
kind, especially that occurring within the family as the
civil law does not address this phenomenon in its
entirety. It is treated as an offence under Section 498-A
of the Penal Code, 1860. The purpose of enacting the
law was to provide a remedy in the civil law for the
protection of women from being victims of domestic
violence and to prevent the occurrence of domestic
violence in the society. It is for this reason, that the
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scheme of the Act provides that in the first instance, the
order that would be passed by the Magistrate, on a
complaint by the aggrieved person, would be of a civil
nature and if the said order is violated, it assumes the
character of criminality. In order to demonstrate it, we
may reproduce the introduction as well as relevant
portions of the Statement of Objects and Reasons of the
said Act, as follows:
XXXXXXXXXXXXXX
10. The Madras High Court in the case of Dr. P. Pathmanathan Vs. V.
Monica – (2021) SCC OnLine Mad 8731 considered the aspect of the
proceedings which are taken recourse to under the provisions of the Act of
2005 and observed in Paragraphs 47 and 52 as under:-
“47. The Hon’ble Supreme Court eventually concluded
that it is conceptually fallacious to determine the nature
of the proceeding with reference to the nature of the
Court, since the litmus test is the nature of the
proceeding, nothing more nothing less. Applying the
aforesaid test, it is beyond a pale of controversy that all
of the reliefs claimed under Chapter IV of the Act are
civil in nature for the enforcement of civil rights, as was
held by the Supreme Court in Kunapareddy (cited
supra) and a proceeding before the Magistrate would,
therefore, partake the character of a civil and not a
criminal proceeding.
52. It is entirely true that the nomenclature of the
petition is not decisive of the jurisdiction of the Court.
Section 482, Cr.P.C. merely saves the inherent power of
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the High Court to make such orders as may be
necessary to a) give effect to an order under this Code;
or b) prevent abuse of process of any Court; or c)
otherwise secure the ends of justice. It is well settled
that this section has not given any new power to the
High Court but has merely preserved the power
inherently possessed by every High Court as a superior
Court of record. As a highest Court of Justice in the
State, the High Court exercises a visitorial or
supervisory jurisdiction over all Courts in the State.
However, the plenitude of the inherent power under
Section 482, Cr.P.C. does not extend to annul
proceedings which are not before a Criminal Court. As
pointed out supra, to constitute a criminal court, it is not
sufficient that the Court is one of the Courts enumerated
under Section 6 Cr.P.C, it is also necessary that the
proceedings before it are criminal in character. If the
proceeding before the Court is civil in nature, then it
cannot be said that the Court is a Criminal Court
exercising criminal jurisdiction for the purposes of
Section 482, Cr.P.C.”
11. The Madras High Court while dealing with the judgment of the
Apex Court in Kunapareddy (supra) though dealt with the question
pertaining to exercise of inherent jurisdiction by the High Court under
Section 482 of Cr.P.C. but concluded that the proceedings under the Act of
2005 are civil in nature hence the jurisdiction under Section 482 of Cr.P.C.
cannot be exercised.
12. The issue pertaining to nature of proceedings was referred to the
Full Bench of the Madras High Court in Arun Daniel and others Vs. Suganya
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and other connected matters – 2022 SCC OnLine Mad 5435 and the Full
Bench of the Madras High Court held that a petition under Section 482 of
Cr.P.C. is not maintainable challenging the proceedings under Section 12 of
the Act of 2005 and the decision of the single Bench of Madras High Court
in Dr. P. Pathmanathan (supra) has been upheld.
13. Even the Indore Bench of this Court in M.Cr.C. No. 52034 of 2022
(Ankit Gahlot & others Vs. Smt. Anjali) decided on 22.3.2024 held that the
orders which are passed under the provisions of the Act of 2005 are civil in
nature except where the powers are exercised under Section 31 of the Act of
2005. However, while pondering over nature of proceedings under the Act of
2005 in Nandkishor Pralhad Vyawahare Vs. Sau. Mangala w/o Pratap
Bansar, @ self declared Sau. Mangala Nandkishor Vyawahare (Criminal
Application (APL) No. 578 of 2011 decided on 14.11.2017 reported
i n (2018) 1 BomCR (Cri) 449 , a Division Bench of the High Court of
Bombay Bench at Nagpur also referred the following two questions for
consideration by the larger Bench:-
“(i) Whether or not the proceedings under the Protection
of Women from Domestic Violence Act, 2005 are in
the nature of criminal proceedings?
(ii) Whether or not the High Court can exercise its
powers under Section 482 of the Code of Criminal
Procedure, 1973 in respect of the proceedings under the
Protection of Women from Domestic Violence Act,
2005.”
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14. The Full Bench of the High Court of Bombay Bench at Nagpur in
Nandkishor Pralhad Vyawahare Vs. Mangala w/o Pratap Bansar – 2018 (3)
Mh.L.J. 913 answered the above reference in following manner:-
“58. A plain reading of section 482 of Criminal
Procedure Code, 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 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.
59. Now, one incidental question would arise as to from
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what stage the provisions of the Criminal Procedure
Code would become applicable and in our view, the
answer could be found out from the provisions of
sections 12 and 13 of the D.V. Act. A combined reading
of these provisions shows that the commencement of
the proceedings would take place the moment, the
Magistrate applies his mind to the contents of the
application and passes any judicial order including that
of issuance of notice. Once, the proceeding commences,
the procedure under section 28 of the D.V. Act, subject
to the exceptions provided in the Act and the rules
framed thereunder, would apply. In other words, save as
otherwise provided in the D.V. Act and the rules framed
thereunder and subject to the provisions of sub-section
(2) of section 28, the provisions of the Criminal
Procedure Code shall govern the proceedings under
sections 12 to 23 and also those relating to an offence
under section 31 of the D.V. Act on their
commencement.”
15. The aforesaid decision of the Full Bench of the Madras High Court
reveal that it was held by their Lordships that a petition under Section 482 of
Cr.P.C. is maintainable to check abuse of proceedings pertaining to the Act
of 2005. The Full Bench also referred Section 28 of the Act of 2005 to
substantiate its answer to the reference.
16. The aforesaid decisions of Full Bench of Madras High Court in
Arun Daniel (supra), the Apex Court in Kunapareddy (supra), the Madras
High Court in the case of Dr. P. Pathmanathan (supra) and this Court
in Ankit Gehlot (supra) reflect that the proceedings, which are drawn under
the provisions of the Act of 2005 are civil in nature and only in case of
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violation of a protection order or interim protection order, Section 31 of the
Act of 2005 comes into play and the criminality is attached to the breach of
the protection order or the interim protection order and accordingly such
breach or violation of the order becomes punishable in terms of Section 31
of the Act of 2005.
1 7 . A bare reading of the Act of 2005 reveals that breach of a
protection order or interim protection order, is punishable under Section 31
of the Act of 2005 and by invocation of the provision of Section 31 of the
Act of 2005, the proceedings take colour of criminality and accordingly
penal provision so stipulated under Section 31 of the Act of 2005 comes into
operation. Section 31 of the Act of 2005 is mentioned in Section 28 of the
Act of 2005, which stipulates that the procedure as laid down in the Code of
Criminal Procedure, 1973 shall be applicable to all proceedings which are
drawn under Sections 12, 18, 19, 20, 21, 22, 23 and also offences under
Section 31 of the Act of 2005. It is further mentioned in sub-section (2) of
Section 28 of the Act of 2005 that the Court is empowered to lay down its
own procedure for disposal of an application under section 12 or under sub-
section (2) of section 23. Section 29 of the Act of 2005 stipulates that there
shall lie an appeal to the Court of Session within thirty days from the date on
which the order made by the Magistrate is served on the aggrieved person.
So far as Section 29 is concerned, same does not say that while dealing with
an appeal under the provisions of the Act of 2005, the provisions pertaining
to appeal which are mentioned in the Code of Criminal Procedure, 1973
would be applicable. It is also not mentioned in Section 29 of the Act of
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2005 that an appeal so preferred under this section shall be treated to be a
criminal appeal. Therefore, the moot question, which requires consideration
in the present case is, when an interim protection order is passed by the trial
Court while dealing with the original application under Section 12 of the Act
of 2005 even against such interlocutory order, a criminal appeal or civil
appeal would be maintainable under Section 29 of the Act of 2005 and after
dismissal of such an appeal, a criminal revision under Section 397/401 of the
Code of Criminal Procedure would be maintainable or not, inasmuch as, to a
protection order or an interim protection order, a criminality cannot be
attached unless and until, there is breach of the such order by the respondent
in the proceedings before the trial Court.
18. The judgment of the Full Bench of the Allahabad High Court in
Dinesh Yadav (supra) as per Paragraph 37 thereof has been passed while
taking into consideration that under Section 29 of the Act of 2005. There is
reference of filing of an appeal to Court of Session and accordingly
provisions of Sections 6, 7 and 9 of the Code of Criminal Procedure have
been taken recourse to. But the question that such an appeal can itself be
treated to be a criminal appeal when the original order passed on the
application under Section 12 of the Act of 2005 is of civil nature, was not
dealt with.
19. In the present case, undisputedly, there is no question of breach of
any interim protection order. On the contrary, the interim protection order
itself was assailed before the appellate Court and the appellate Court
dismissed the appeal and then the present revision has been preferred under
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Section 397/401 of the Code of Criminal Procedure. Hence, the question
which requires consideration in the present case is, whether the present
revision is maintainable or not particularly in view of the fact that only an
order of interim protection of civil nature has been passed and the interim
protection order has also not been violated so as to attract the provision of
Section 31 of the Act of 2005. Thus, this Court is of the considered view that
following questions require consideration by the larger Bench of this Court,
inasmuch as, the Full Bench of Allahabad High Court, in respectful opinion
of this Court has not taken into consideration the nature of the proceedings:-
1. Whether an interim protection order, which is passed by
the trial Court while dealing with the original application under
Section 12 of the the Protection of Women from Domestic
Violence Act, 2005 is civil or criminal in nature?
2. Whether an appeal, which is preferred under Section 29
of the the Protection of Women from Domestic Violence Act,
2005 will be treated to be a criminal appeal, even if the original
order is passed under Section 12 of the the Protection of Women
from Domestic Violence Act, 2005 not being an order under
Section 31 of the the Protection of Women from Domestic
Violence Act, 2005?
3. Whether a criminal revision would be maintainable
against the order passed by the appellate Court in exercise of
appellate power conferred under Section 29 of the Act of 2005,
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protection order?
20. Let the matter be placed before Hon’ble Acting Chief Justice along
with the record to constitute a Bench of such strength as may be deemed fit
by His Lordship to deal with the instant reference.
21. As the matter is being referred to the larger Bench, the operation
and effect of order dated 7.11.2023 passed by Twenty Fifth Additional
District Judge, Jabalpur in Criminal Appeal No. 191 of 2023 and the order
dated 6.9.2022 passed by Judicial Magistrate First Class, Jabalpur in
Criminal Case No. 536 of 2021, shall be kept in abeyance and the
proceedings before the trial Court shall remain stayed.
(MANINDER S. BHATTI)
JUDGE
Astha/PB
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