Case Note & Summary
The petitioner, Gahihinath Kotwad, is the husband of the respondent, Kausalyabai Kotwad. The respondent filed an application under the Protection of Women from Domestic Violence Act, 2005, before the Judicial Magistrate First Class, Ausa, seeking monetary reliefs. The learned Magistrate rejected the application after inquiry. The respondent appealed under Section 29 of the Domestic Violence Act to the Court of Sessions. The appeal was heard and decided by Mr. D.S. Hatarote, Assistant Sessions Judge-3, Latur, who allowed the appeal and directed the petitioner to pay maintenance of Rs. 1,500 per month to the respondent. The petitioner challenged this order by way of a criminal writ petition under Article 227 of the Constitution of India. The High Court examined the jurisdiction of the Assistant Sessions Judge to hear the appeal. It noted that Section 381 of the Code of Criminal Procedure, 1973, provides that an appeal to the Court of Session shall be heard by the Sessions Judge or Additional Sessions Judge. The proviso to sub-section (1) allows an Assistant Sessions Judge or Chief Judicial Magistrate to hear appeals only from orders passed by a Magistrate of the second class, if made over by the Sessions Judge or High Court. Since the order appealed against was passed by a Judicial Magistrate First Class, the Assistant Sessions Judge had no jurisdiction to hear the appeal. The High Court held that the order was passed in excess of jurisdiction and could not be sustained. Consequently, the High Court set aside the impugned order and remanded the matter to the Sessions Court, Latur, for fresh hearing and disposal by a competent court in accordance with law. The parties were directed to appear before the Sessions Court on 07/10/2013.
Headnote
A) Criminal Procedure - Appeal Jurisdiction - Section 381 CrPC - Appeal under Section 29 of Protection of Women from Domestic Violence Act, 2005 - The appeal against an order of a Judicial Magistrate First Class under the Domestic Violence Act must be heard by a Sessions Judge or Additional Sessions Judge, and not by an Assistant Sessions Judge, unless specifically made over under the proviso to Section 381(1) CrPC for appeals from orders of a Magistrate of the second class. In the instant case, the Assistant Sessions Judge exceeded his jurisdiction by hearing and deciding the appeal, rendering the order void. The High Court, in exercise of its jurisdiction under Article 227 of the Constitution, set aside the order and remanded the matter for fresh hearing by a competent court. (Paras 5-7)
Issue of Consideration
Whether an Assistant Sessions Judge has jurisdiction to hear and decide an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, in light of Section 381 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court allowed the writ petition, set aside the order dated 25/07/2011 passed by the Assistant Sessions Judge, Latur, and remanded the matter to the Sessions Court, Latur, for fresh hearing and disposal by a competent court in accordance with law. The parties were directed to appear before the Sessions Court on 07/10/2013.
Law Points
- Jurisdiction of Assistant Sessions Judge to hear appeals under Domestic Violence Act
- Section 381 CrPC
- Article 227 of Constitution of India
Case Details
2013 LawText (BOM) (09) 3
Criminal Writ Petition No. 813 of 2011
Mr. S.V. Gundre (h/d Mr. V.D. Gunale) for Petitioner, Mr. S.S. Halkude for Respondent
Gahihinath S/o Hanmant Kotwad
Kausalyabai W/o Gahininath Kotwad
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution of India challenging an order passed by the Assistant Sessions Judge in an appeal under the Protection of Women from Domestic Violence Act, 2005.
Remedy Sought
The petitioner (husband) sought quashing of the order dated 25/07/2011 passed by the Assistant Sessions Judge, Latur, directing him to pay maintenance to the respondent (wife).
Filing Reason
The petitioner contended that the Assistant Sessions Judge lacked jurisdiction to hear the appeal under Section 381 of the Code of Criminal Procedure, 1973.
Previous Decisions
The Judicial Magistrate First Class, Ausa, rejected the respondent's application for monetary reliefs under the Domestic Violence Act. The respondent appealed to the Court of Sessions, and the Assistant Sessions Judge allowed the appeal, directing maintenance of Rs. 1,500 per month.
Issues
Whether an Assistant Sessions Judge has jurisdiction to hear an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, against an order of a Judicial Magistrate First Class, in view of Section 381 of the Code of Criminal Procedure, 1973.
Submissions/Arguments
The petitioner argued that the appeal was heard and decided by an Assistant Sessions Judge, who is not empowered under Section 381 CrPC to hear such an appeal, as the proviso only allows him to hear appeals from orders of a Magistrate of the second class, and the order here was passed by a Judicial Magistrate First Class.
The respondent's counsel raised various contentions on merits, but the court did not discuss them in detail as the jurisdictional issue was dispositive.
Ratio Decidendi
An appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, against an order of a Judicial Magistrate First Class, must be heard by a Sessions Judge or Additional Sessions Judge as per Section 381(1) of the Code of Criminal Procedure, 1973. An Assistant Sessions Judge has no jurisdiction to hear such an appeal unless it is from an order of a Magistrate of the second class and is made over to him under the proviso to Section 381(1). An order passed by an Assistant Sessions Judge in excess of jurisdiction is void and liable to be set aside under Article 227 of the Constitution.
Judgment Excerpts
Section 381 of the Code of Criminal Procedure lays down how an appeal to the Court of Session is to be heard and stipulates, inter alia, that the same shall be heard by the Sessions Judge or Additional Sessions Judge.
It is, therefore, clear that the appeal came to be heard and decided by a Judge, who was not empowered to hear and decide the same.
The constitutional jurisdiction of this Court under Article 227 of the Constitution of India is meant to be used for ensuring that the subordinate Courts function within the bounds of their authority.
Procedural History
The respondent filed an application under the Domestic Violence Act before the Judicial Magistrate First Class, Ausa, which was rejected. The respondent appealed under Section 29 of the Act to the Court of Sessions. The appeal was heard and allowed by the Assistant Sessions Judge, Latur, on 25/07/2011, directing the petitioner to pay maintenance. The petitioner then filed the present criminal writ petition under Article 227 of the Constitution before the Bombay High Court, Aurangabad Bench, challenging the order on the ground of lack of jurisdiction.
Acts & Sections
- Protection of Women from Domestic Violence Act, 2005: Section 29
- Code of Criminal Procedure, 1973: Section 381
- Constitution of India: Article 227
