Case Note & Summary
The matter came before the Bombay High Court, Nagpur Bench, as a reference to a Full Bench to resolve conflicting decisions on whether proceedings under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) are criminal in nature and whether the High Court can invoke its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) to quash such proceedings. The original applicant, Nandkishor Pralhad Vyawahare, had filed a criminal application seeking to quash a proceeding initiated by his wife under Section 12(1) of the D.V. Act for monetary relief under Section 20. During the pendency, the applicant died. Earlier, a Single Judge (A.R. Joshi, J.) noticed conflicting views of two different Benches: Mangesh Sawant v. Minal Vijay Bhosale held that proceedings under Section 12 are civil and not amenable to quashing under Section 482, while Narayan Thool v. Mala Chandan Wani held the opposite. The Single Judge framed two questions for reference. A Division Bench was constituted, and it took note of a later Division Bench decision in Sukumar Pawanlal Gandhi v. Bhakti Sushil Gandhi which held that Section 482 could only be used for prosecutions under Sections 31 and 33 of the D.V. Act, not for applications under Section 12. The Division Bench examined the Supreme Court decision in Kunapareddy v. Kunapareddy Swarna Kumari, which declared the proceedings predominantly civil, and a Gujarat High Court decision in Suo Motu v. Ushaben Kishorbhai Mistry that supported applicability of Section 482. The Division Bench found that the questions could not be answered without deciding whether the nature of proceedings determined applicability of Cr.P.C. and whether Section 28 of the D.V. Act mandated application of Cr.P.C. to all proceedings. It therefore referred the matter to a larger Bench. The Full Bench heard arguments from counsel for the applicant (contending that despite civil nature, the procedure being criminal attracts Section 482), the respondent (supporting the Sukumar Gandhi view that only offences under Sections 31 and 33 attract Cr.P.C.), and the Public Prosecutor (arguing that the Supreme Court's decision and Section 28(1) make Cr.P.C. fully applicable). The judgment, however, remains incomplete in the text provided and no final decision is recorded.
Headnote
A) Criminal Procedure - Inherent powers of High Court - Section 482 of the Code of Criminal Procedure, 1973 - Applicability to proceedings under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 - Conflicting views of different Benches of the Bombay High Court led to reference to a larger Bench; one view held that proceedings under Section 12(1) are civil in nature and Section 482 CrPC cannot be invoked (Mangesh Sawant v. Minal Vijay Bhosale, 2012 ALL MR (Cri) 1113), while another held that power under Section 482 is available (Narayan Thool v. Mala Chandan Wani, Cri. W.P. No. 773/2014). (Paras 2, 5) B) Domestic Violence - Nature of proceedings - Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 - Supreme Court in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 1 SCC 774, held that proceedings are predominantly civil, but the scheme of the DV Act and Section 28 thereof make the provisions of CrPC applicable, leading to further examination by the Division Bench before referring to the Full Bench. (Paras 5-7, 11) C) Criminal Procedure - Quashing of proceedings - Section 482 of the Code of Criminal Procedure, 1973 - Availability for D.V. Act applications - The Division Bench in Sukumar Pawanlal Gandhi v. Bhakti Sushil Gandhi, 2016 SCC OnLine Bom 12942, held that power under Section 482 can be exercised only for prosecutions under Sections 31 and 33 of the DV Act, not for applications under Section 12(1); this view too was considered before the reference was made over to the Full Bench. (Para 5) D) Constitutional Law - Right to life and liberty - Articles 14, 15 and 21 of the Constitution of India - Statement of Objects and Reasons of the DV Act indicates that the enactment provides a civil remedy to protect women from domestic violence, reinforcing the civil nature of reliefs under Sections 18 to 22. (Para 10) E) Criminal Procedure - Procedure under DV Act - Section 28 of the Protection of Women from Domestic Violence Act, 2005 - Sub-section (1) mandates that proceedings under Section 12 shall be governed by the provisions of the Code of Criminal Procedure, subject to the court's power to lay down its own procedure; this legislative mandate supports the contention that CrPC provisions, including Section 482, apply. (Para 11)
Issue of Consideration
(i) Whether the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings? (ii) Whether the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of proceedings under the Protection of Women from Domestic Violence Act, 2005?
Law Points
- Nature of proceedings under Section 12(1) of the Protection of Women from Domestic Violence Act
- 2005
- Applicability of Section 482 of the Code of Criminal Procedure to quash proceedings under the DV Act
- Distinction between civil and criminal proceedings
- Principle of stare decisis
