# Amardeep Sonkar v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 629
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-05
- **Case number:** Application U/S 482. No. 8732 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amardeep-sonkar-v-state-of-u-p-anr-51838
- **Pages:** 11

## Headnote

Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Protection
of Women from Domestic Violence Act,
2005- Section 12 - Quashing of Summoning
Order Dismissed - The applicant sought to
quash the summoning order and proceedings
under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (DV Act) -
630 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, the application under Code of Criminal
Procedure,1973 -Section 482was dismissed as
the proceedings under Section 12 are civil in
nature and do not require strict adherence to
CrPC procedures for complaints, rendering the
quashing unwarranted. (Paras 2, 21, 23)

B. Nature of Proceedings under DV Act -
Civil Character - The applicant argued that the
Magistrate failed to follow CrPC procedures
under Sections 200 and 202 before issuing
notice - Held, proceedings under Section 12 of
the DV Act are civil, aimed at providing
remedies
like
protection,
residence,
and
monetary relief, not criminal prosecution,
unless a protection order is breached under
Section 31. (Paras 8, 10, 12, 19, 22)

C. Application under Section 12 DV Act -
Not a Complaint - The applicant contended
that the Magistrate's order lacked judicial
application due to non-compliance with CrPC
complaint procedures - Held, an application
under Section 12 is not a complaint under
Section 2(d) CrPC, as it seeks civil remedies
without alleging an offence, and thus, Sections
200 and 202 CrPC are inapplicable. (Paras 4,
12, 20, 21)

D. Section 28 DV Act - Procedural Flexibility
- The applicant relied on Section 28(1) DV Act,
which references CrPC procedures - Held,
Section 28(2) grants courts discretion to adopt
their
own
procedures
for
disposing
of
applications
under
Sections
12
or
23,
exempting strict compliance with CrPC, as the
notice under Section 12 is not a summons
under Section 61 CrPC. (Paras 5, 16, 17, 22)

E. Purpose of DV Act - Civil Remedies for
Women - The opposite party emphasized the
civil nature of DV Act proceedings - Held, the
DV Act, enacted to protect women from
domestic violence under Articles 14, 15, and 21
of the Constitution, provides civil remedies like
protection and residence orders, transforming
into criminal proceedings only upon breach of
such
orders,
as
per
Kunapareddy
Vs
Kunapareddy. (Paras 8, 9, 10, 15)

Application Dismissed.

List of Cases cited:

## Text

4 All. Amardeep Sonkar Vs. State of U.P. & Anr.
629
i.e. prior to filing the charge-sheet dated
21.09.2019, upon which the Sub-Divisional
Officer directed the area Lekhpal to
submit its report. In compliance thereof,
the Area Lekhpal had visited the site and
prepared its report dated 30.10.2019 and
submitted the same before the SubDivisional Officer. As per the said report
dated
30.10.2019,
the
applicants
themselves
have
removed
the
encroachment and now there is no
encroachment over the chak road of the
Gaon Sabha. Though the action of the
revenue authorities on the application of
the applicants appears to have in the
knowledge of the Investigating Officer,
however, without waiting for the outcome
of the decision of the revenue authorities,
the Investigating Officer had proceeded
with the investigation and submitted
charge-sheet dated 21.09.2019 i.e. within
20 days of lodging of the F.I.R. and
before submission of the report of the
Lekhpal dated 30.10.2019, which smacks
the action of the Investigating Officer
arbitrary and mala fide.

(19) Thus, taking note of the law
laid down by the Hon'ble Apex Court in
abovementioned cases and also keeping
in view the totality of facts and
circumstances of the case, this Court has
no hesitation to allow this application
under Section 482 Cr.P.C. and quash the
impugned summoning/cognizance orders
as well as proceedings challenged therein.

(20) Accordingly, the impugned
summoning order dated 15.03.2021 as
well as entire criminal proceeding of
Criminal Case No. 137 of 2021 : State
Vs. Shankar Nath Pandey and others,
arising out of Case Crime No.335 of
2019, under Section 3 of Prevention of
Damages to Public Property Act, Police
Station Khandasa, District Ayodhya,
pending
in
the
Court
of
Judicial
Magistrate-I,
Faizabad
are
hereby
quashed.

(21) As the Area Lekhpal vide report
dated 30.10.2019 (Annexure No. 4), which
is not disputed by the State Counsel, itself
reported that now there is no encroachment
of the land of the Goan Sabha as alleged in
the F.I.R., therefore, no fruitful purpose
would be served in remitting the matter to
the
concerned
authority
for
fresh
consideration.

(22) The instant application under
Section
482
Cr.P.C.
is,
accordingly,
allowed.
----------
(2024) 4 ILRA 629
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 8732 of 2024

Amardeep Sonkar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shivam Agarwal, Ms. Tanu Shree

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Protection
of Women from Domestic Violence Act,
2005- Section 12 - Quashing of Summoning
Order Dismissed - The applicant sought to
quash the summoning order and proceedings
under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (DV Act) -
630 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, the application under Code of Criminal
Procedure,1973 -Section 482was dismissed as
the proceedings under Section 12 are civil in
nature and do not require strict adherence to
CrPC procedures for complaints, rendering the
quashing unwarranted. (Paras 2, 21, 23)

B. Nature of Proceedings under DV Act -
Civil Character - The applicant argued that the
Magistrate failed to follow CrPC procedures
under Sections 200 and 202 before issuing
notice - Held, proceedings under Section 12 of
the DV Act are civil, aimed at providing
remedies
like
protection,
residence,
and
monetary relief, not criminal prosecution,
unless a protection order is breached under
Section 31. (Paras 8, 10, 12, 19, 22)

C. Application under Section 12 DV Act -
Not a Complaint - The applicant contended
that the Magistrate's order lacked judicial
application due to non-compliance with CrPC
complaint procedures - Held, an application
under Section 12 is not a complaint under
Section 2(d) CrPC, as it seeks civil remedies
without alleging an offence, and thus, Sections
200 and 202 CrPC are inapplicable. (Paras 4,
12, 20, 21)

D. Section 28 DV Act - Procedural Flexibility
- The applicant relied on Section 28(1) DV Act,
which references CrPC procedures - Held,
Section 28(2) grants courts discretion to adopt
their
own
procedures
for
disposing
of
applications
under
Sections
12
or
23,
exempting strict compliance with CrPC, as the
notice under Section 12 is not a summons
under Section 61 CrPC. (Paras 5, 16, 17, 22)

E. Purpose of DV Act - Civil Remedies for
Women - The opposite party emphasized the
civil nature of DV Act proceedings - Held, the
DV Act, enacted to protect women from
domestic violence under Articles 14, 15, and 21
of the Constitution, provides civil remedies like
protection and residence orders, transforming
into criminal proceedings only upon breach of
such
orders,
as
per
Kunapareddy
Vs
Kunapareddy. (Paras 8, 9, 10, 15)

Application Dismissed.

List of Cases cited:
1. Kunapareddy @ Nookala Shanka Balaji Vs
Kunapareddy Swarna Kumar, (2016) 11 SCC
774

2.
S.A.L.
Narayan
Row
Vs
Ishwarlal
Bhagwandas, AIR 1965 SC 1818

3. Hamid Ali Vs St. of U.P., Application U/S 482
No. 11135 of 2020

4. Smt. Geeta Vs St. of U.P., 2022 8 ADJ 523

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Shivam Agarwal, learned
counsel for the applicant and Sri Anish Kr.
Upadhyay, learned AGA for the State.

2. The instant Application has been
filed seeking quashing of the summoning
order dated 22.5.2023 as well as entire
proceeding of Complaint Case No. 227 of
2023 (Smt. Gunja Sonkar vs. Amardeep
Sonkar and others), u/s 12 of Protection of
Women from Domestic Violence Act, 2005
(hereinafter referred to as "Domestic
Violence Act"), P.S. Kothwali Katra,
District Mirzapur, pending before Civil
Judge (J.D.)/FTC, Mirzapur.

3. The fact giving rise to the present
case is that opposite party No.2, who is the
wife of the applicant, has filed an
application u/s 12 Domestic Violence Act.
However, after getting the report from the
Protection Officer, the learned Magistrate
issued notice to the applicant by order
dated 22.5.2023 to reply to the same.

4. learned counsel for the applicant
contends that while passing the impugned
order
dated
22.5.2023,
the
learned
Magistrate has failed to consider that as per
Section 28 of the Domestic Violence Act,
the procedure of complaint case for the
Application filed u/s 12 Domestic Violence
4 All. Amardeep Sonkar Vs. State of U.P. & Anr.
631
Act is to be followed as per Cr.PC.. Before
passing the impugned order, he did not
record the statement under Section 200
Cr.P C.. As the applicant resides beyond
the Magistrate's territorial jurisdiction,
the Magistrate had to conduct the enquiry
u/s 202(1) Cr.P.C. before proceeding
further. It is lastly submitted that the
impugned order itself shows that there is
complete
non-application
of
mind.
Learned counsel for the applicant has
relied
upon
the
judgement
of
the
coordinate Bench of this Court in the case
of Hamid Ali vs. State of UP and
another, Application U/s 482 No. 11135
of 2020, as well asSmt. Geeta vs. State of
U.P. ; 2022 8 ADJ 523.

5. Per contra, learned AGA submits
that Section 28(2) of the Domestic
Violence
Act
itself
provides
that
notwithstanding anything contained in
Section 28(1) of the Domestic Violence
Act, the Court can lay down its procedure
for the disposal of the Application u/s 12
or Section 23(2) of Domestic Violence
Act. It is further submitted that there is
no allegation in the complaint regarding
the
commission
of
any
offence.
Therefore, the present complaint is
simply
an
application
and
not
a
complaint. It is also submitted that the
Court is not bound to strictly follow the
procedure of the complaint case as
mentioned in the Cr. P.C.

6. After hearing the submissions of
learned counsel for the parties as well as
on perusal of the record, the following
questions have arisen for determination:
(i) What is the nature of the proceeding
of the Domestic Violence Act; (ii)
whether the Application u/s 12 Domestic
Violence Act is complaint or simply an
application; (iii) whether before issuing
notice to opposite parties, the procedure of
complaint has to be followed as required
u/s 200 and 202 Cr.P.C.

7. Before proceeding further, it would
be appropriate to discuss the object of the
Domestic Violence Act.

8 . The very purpose of enacting the
Domestic Violence Act was to provide a
remedy that is an amalgamation of the civil
rights of the complaint, i.e., the aggrieved
person. The 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 u/s
498-A of IPC. The purpose of enacting the
law was to provide a remedy in civil law
for the protection of women from being
victims of domestic violence and to prevent
the occurrence of domestic violence in
society. It is for this reason that the scheme
of the Act provides that in the first instance,
the order that the Magistrate would pass on
an application 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, it
would be appropriate to reproduce the
introduction as well as the relevant portion
of the statement of objects and the reasons
for the said Act as follows:

"Introduction

The Vienna Accord of 1994, the
Beijing Declaration, and the Platform for
Action (1995) have acknowledged that
domestic violence is undoubtedly a human
rights issue. The United Nations Committee
on Convention on Elimination of All Forms
of Discrimination Against Women, in its
General
Recommendations,
has
recommended that State parties should act
632 INDIAN LAW REPORTS ALLAHABAD SERIES
to protect women against violence of any
kind, especially that occurring within the
family. The phenomenon of domestic
violence in India is widely prevalent but
has remained invisible in the public
domain. The civil law does not address
this
phenomenon
in
its
entirety.
Presently, when a woman is subjected to
cruelty by her husband or his relatives, it
is an offence under Section 498-A of the
Penal Code, 1860. In order 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
society,
the
Protection of Women from Domestic
Violence
Bill
was
introduced
in
Parliament.

Statement of Objects and Reasons

1.
Domestic
violence
is
undoubtedly a human rights issue and a
serious deterrent to development. The
Vienna Accord of 1994, the Beijing
Declaration and the Platform for Action
(1995) have acknowledged this. The
United Nations Committee on Convention
on
Elimination
of
All
Forms
of
Discrimination Against Women (Cedaw),
in its General Recommendation No. XII
(1989) has recommended that State
parties should act to protect women
against violence of any kind, especially
that occurring within the family.

***

3. It is, therefore, proposed to
enact a law keeping in view the rights
guaranteed under Articles 14, 15 and 21
of the Constitution to provide for a
remedy under the civil law, which is
intended to protect women from being
victims of domestic violence and to

4. The Bill, inter alia, seeks to
provide for the following?

***

(ii) It defines the expression
"domestic violence" to include actual abuse
or threat or abuse that is physical, sexual,
verbal,
emotional
or
economic.
Harassment by way of unlawful dowry
demands to the woman or her relatives
would also be covered under this definition.

(iii) It provides for the rights of
women to secure housing. It also provides
for the right of a woman to reside in her
matrimonial home or shared household,
whether or not she has any title or rights in
such home or household. This right is
secured by a residence order, which is
passed by the Magistrate.

(iv) It empowers the Magistrate
to pass protection orders in favour of the
aggrieved person to prevent the respondent
from aiding or committing an act of
domestic violence or any other specified
act, entering a workplace or any other
place frequented by the aggrieved person,
attempting to communicate with her,
isolating any assets used by both the
parties and causing violence to the
aggrieved person, her relatives or others
who provide her assistance from the
domestic violence.".

9. From the object and reason of the
Domestic Violence Act, it is clear that the
purpose of this Act is to provide a remedy
in civil law for the protection of women
from being victims of Domestic Violence.

10. Hon'ble Apex Court, in the case of
Kunapareddy @ Nookala Shanka Balaji
vs. Kunapareddy Swarna Kumar and
another (2016) 11 SCC 774, has already
observed that all reliefs, contemplated
4 All. Amardeep Sonkar Vs. State of U.P. & Anr.
633
under Chapter IV of the Domestic Violence
Act, are civil in nature. The relevant part of
paragraph No.12 of theKunapareddy @
Nookala Shanka Balaji (supra) case is quoted
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 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."

11. Under the Domestic Violence Act,
various reliefs that the Magistrate can grant
are set out in Chapter-IV of the Domestic
Violence Act, and the same can be
summarized as follows:-

"(i) Protection orders (Section 18)

(ii) Residence orders (Section 19)

(iii) Monetary reliefs (Section 20)

(v) Compensation orders (Section
22)"

12. All the aforesaid reliefs are civil
in nature, but the breach of a protection
order or an interim protection order alone is
a cognizable and non-bailable offence u/s
31 and 32 of the Domestic Violence Act.
The proceeding before the Magistrate is
in the nature of civil proceeding while
deciding the Application under Chapter
IV of the Domestic Violence Act, but it
may transform into a criminal proceeding
while trying an offence under Chapter V
of the Domestic Violence Act. Section 12
of the Domestic Violence Act provides
the
Application
on
behalf
of
the
aggrieved person or protection officers
and not the complaint. The format of the
Application u/s 12 of the Domestic
Violence
Act
is
also
provided
in
Protection of Women from Domestic
Violence Rules, 2006 (hereinafter referred
to as "Rules, 2006"). Section 12(4) of the
Domestic Violence Act further mandates
that the Magistrate, on receiving the
Application, will fix the first date of
hearing not ordinarily beyond three days,
and Section 13 of the Domestic Violence
Act provides that the notice of hearing
shall be given to the protection officer not
in the form of any summon as mentioned
in Section 61 of Cr.P.C. It is further
mentioned in Rule 6(5) of the Rules, 2006
that the procedure for the Application u/s
12 of the Domestic Violence Act shall be
dealt with in the same manner as laid
down u/s 125 Cr.P.C. Sections 12 & 13 of
the Domestic Violence Act as well as
Rules 6 of the Rules, 2006 are being
quoted below:-

"Section
12.
Application
of
Magistrate.

(1) An aggrieved person or a
Protection Officer or any other person on
behalf of the aggrieved person may present
an application to the Magistrate seeking
one or more reliefs under this Act:
634 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that before passing any
order on such Application, the Magistrate
shall take into consideration any domestic
incident report received by him from the
Protection Officer or the service provider.

(2) The relief sought for under
sub-section (1) may include a relief for
issuance of an order for payment of
compensation
or
damages
without
prejudice to the right of such person to
institute a suit for compensation or
damages for the injuries caused by the
acts of domestic violence committed by the
respondent:

Provided that where a decree for
any amount as compensation or damages
has been passed by any court in favour of
the aggrieved person, the amount, if any,
paid or payable in pursuance of the order
made by the Magistrate under this Act
shall be set off against the amount payable
under such decree and the decree shall,
notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of
1908), or any other law for the time being
in force, be executable for the balance
amount, if any, left after such set off.

(3) Every Application under subsection (1) shall be in such form and
contain such particulars as may be
prescribed or as nearly as possible
thereto.

(4) The Magistrate shall fix the
first date of hearing, which shall not
ordinarily be beyond three days from the
date of receipt of the Application by the
Court.

(5)
The
Magistrate
shall
Endeavour to dispose of every Application
made under sub-section (1) within a period
of sixty days from the date of its first
hearing.

Section 13. Service of notice.

(1) A notice of the date of hearing
fixed under section 12 shall be given by the
Magistrate to the Protection Officer, who
shall get it served by such means as may be
prescribed on the respondent, and on any
other person, as directed by the Magistrate
within a maximum period of two days or
such further reasonable time as may be
allowed by the Magistrate from the date of
its receipt.

(2) A declaration of service of
notice made by the Protection Officer in
such form as may be prescribed shall be
the proof that such notice was served upon
the respondent and on any other person as
directed by the Magistrate unless the
contrary is proved.

Rule 6. Applications to the
Magistrate-

(1) Every Application of the
aggrieved person under section 12 shall be
in Form II or as nearly as possible thereto.

(2)An aggrieved person may seek
the assistance of the Protection Officer in
preparing her Application under sub-rule
(1) and forwarding the same to the
concerned Magistrate.

(3)In case the aggrieved person is
illiterate, the Protection Officer shall read
over the Application and explain to her the
contents thereof.

(4)The affidavit to be filed under
sub-section (2) of section 23 shall be filed
in Form III.
4 All. Amardeep Sonkar Vs. State of U.P. & Anr.
635

(5)The applications under section
12 shall be dealt with and the orders
enforced in the same manner laid down
under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974)."

13. Notice under Section 12 of the
Domestic Violence Act has been prescribed
in Form VII (Rule 11(1)) of the Rules, 2006,
while the format of summons has been
prescribed in Form I of the Second Schedule
of Cr.P.C. Both these formats show that
notice u/s 12 of the Domestic Violence Act is
sent to appear and answer for civil relief
claimed by the applicant while summons is
sent to appear and reply to the charge of
offence. Therefore, this notice is like any suit
or civil proceeding notice.

14. When the protection order is
breached, then the proceeding u/s 31 of the
Domestic Violence Act will be as per Rule
15(6) of the Rules, 2006. Rule 15(6) of the
Rules, 2006 provides that the proceeding u/s
31 of the Domestic Violence Act should
proceed summarily in accordance with the
procedure of Chapter XXI of Cr.P.C. Section
31 of the Domestic Violence Act as well as
Rule 15 of the Rules, 2006 are being quoted
as under:-

"Section 31. Penalty for breach of
protection order by respondent.

(1) A breach of protection order, or
of an interim protection order, by the
respondent shall be an offence under this Act
and shall be punishable with imprisonment of
either description for a term which may
extend to one year, or with fine which may
extend to twenty thousand rupees, or with
both.

(2) The offence under sub-section
(1) shall as far as practicable be tried by
the Magistrate who had passed the order,
the breach of which has been alleged to
have been caused by the accused.

(3) While framing charges under
sub-section (1), the Magistrate may also
frame charges under section 498A of the
Indian Penal Code (45 of 1860) or any
other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), as the
case may be, if the facts disclose the
commission of an offence under those
provisions.

Rule 15. Breach of Protection
Orders-

(1) An aggrieved person may
report a breach of protection order or an
interim protection order to the Protection
Officer.

(2) Every report referred to in
sub-rule (1) shall be in writing by the
informant and duly signed by her.

(3) The Protection Officer shall
forward a copy of such complaint with a
copy of the protection order of which a
breach is alleged to have taken place to the
concerned Magistrate for appropriate
orders.

(4) The aggrieved person may, if
she so desires, make a complaint of breach
of protection order or interim protection
order directly to the Magistrate or the
Police, if she so chooses.

(5) If, at any time after a
protection order has been breached, the
aggrieved person seeks his assistance, the
Protection Officer shall immediately rescue
her by seeking help from the local police
station and assist the aggrieved person to
636 INDIAN LAW REPORTS ALLAHABAD SERIES
lodge a report to the local police
authorities in appropriate cases.

(6) When charges are framed
under section 31 or in respect of offences
under section 498-A of the Indian Penal
Code (45 of 1860), or any other offence not
summarily triable, the Court may separate
the proceedings for such offences to be
tried in the manner prescribed under Code
of Criminal Procedure, 1973 (2 of 1974)
and proceed to summarily try the offence of
the breach of protection order under
section 31, in accordance with the
provisions of Chapter XXI of the Code of
Criminal Procedure, 1973 (2 of 1974).

(7)
Any
resistance
to
the
enforcement of the orders of the Court
under the Act by the respondent or any
other person purportedly acting on his
behalf shall be deemed to be a breach of
protection order or an interim protection
order covered under the Act.

(8) A breach of a protection order
or an interim protection order shall
immediately be reported to the local police
station having territorial jurisdiction and
shall be dealt with as a cognizable offence
as provided under sections 31 and 32.

(9) While enlarging the person on
bail arrested under the Act, the Court may,
by order, impose the following conditions
to protect the aggrieved person and to
ensure the presence of the accused before
the Court, which may include-

(a) an order restraining the
accused from threatening to commit or
committing an act of domestic violence;

(b) an order preventing the
accused from harassing, telephoning or
making any contact with the aggrieved
person;

(c) an order directing the accused
to vacate and stay away from the residence
of the aggrieved person or any place she is
likely to visit;

(d) an order prohibiting the
possession or use of a firearm or any other
dangerous weapon;

(e) an order prohibiting the
consumption of alcohol or other drugs;

(f) any other order required for
protection, safety and adequate relief to the
aggrieved person."

15. Section 14 of the Domestic
Violence Act further provides that after
service of notice upon the respondent, the
Magistrate may try to arrange counseling
between the parties. Therefore, it is clear
that the proceeding of Application u/s 12 of
the Domestic Violence Act, as well as the
order, passed therein u/s 18, 19, 20, 21, and
22 of the Domestic Violence Act, are
essentially civil in nature. Therefore, the
provision of appeal is itself provided u/s 29
of the Domestic Violence Act.

16. Even though Section 28(1) of the
Domestic Violence Act provides that
except the procedure provided under this
Act all other proceedings u/s 18, 19, 20, 21,
22, 23 of Domestic Violence Act and also
the offence u/s 31 of Domestic Violence
Act shall be governed by the provision of
Cr.P.C. with further exception u/s 28(2) of
Domestic Violence Act which grants
discretion to Court to lay down its
procedure for the disposal of Application
under Section 12 or Section 23 of Domestic
Violence Act. In view of the discretion u/s
4 All. Amardeep Sonkar Vs. State of U.P. & Anr.
637
28(2) of the Domestic Violence Act, court
is not bound to follow the provision of
Cr.P.C. in stricto sensu while deciding the
application u/s 12 of the Domestic
Violence Act. For reference, Section 28 of
the Domestic Violence Act is quoted as
under:-

"Section 28. Procedure.

(1) Save as otherwise provided in
this Act, all proceedings under sections
12,18, 19, 20, 21, 22 and 23 and offences
under section 31 shall be governed by the
provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1)
shall prevent the Court from laying down
its own procedure for disposal of an
application under section 12 or under subsection (2) of section 23."

17. As the procedure for sending and
service of the notice itself provided in the
Domestic Violence Act to provide an
opportunity to the respondent before
passing any order u/s 18, 19, 20, 21, 22 of
the Domestic Violence Act and also to try
the offence u/s 31 of the Domestic
Violence Act, but merely because the
criminal Court is deciding the issues which
are of civil nature will not itself make the
proceeding as criminal.

18. The Apex Court, in the case of
S.A.L.
Narayan
Row
vs.
Ishwarlal
Bhagwandas;
AIR
1965
SC
1818,
explained the distinction between the civil
and criminal proceedings and also observed
that the character of the proceeding does
not depend upon the nature of the Tribunal,
which is invested with the authority grant
leave but depends upon the rights violated
and appropriate relief which may be
claimed. The relevant extract of the
judgement
of
S.A.L.
Narayan
Row
(supra)is quoted as under:-

"The
expression
"civil
proceeding"
is
not
defined
in
the
Constitution, nor in the General Clauses
Act. The expression in our judgment covers
all proceedings in which a party asserts the
existence of a civil right conferred by the
civil law or by statute, and claims relief for
breach thereof. A criminal proceeding on
the other hand is ordinarily one in which if
carried to its conclusion it may result in the
imposition of sentences such as death,
imprisonment,
fine
or
forfeiture
of
property. It also includes proceedings in
which in the larger interest of the State,
orders to prevent apprehended breach of
the peace, orders to bind down persons who
are a danger to the maintenance of peace
and order, or orders aimed at preventing
vagrancy
are
contemplated
to
be
passed............

..............The character of the
proceeding, in our judgment, depends not
upon the nature of the Tribunal which is
invested with authority to grant relief, but
upon the nature of the right violated and the
appropriate relief which may be claimed. A
civil proceeding is, therefore, one in which
a person seeks to enforce by appropriate
relief the alleged infringement of his civil
rights against another person or the State,
and which if the claim is proved would
result in the declaration express or implied
of the right claimed and relief such as
payment of debt, damages, compensation,
delivery of specific property, enforcement
of personal rights, determination of status
etc."

19. Therefore, in view of the
observation of the Apex Court in the case
638 INDIAN LAW REPORTS ALLAHABAD SERIES
of S.A.L. Narayan Row (supra), it is clear
that judging the character of the proceeding
depends upon the nature of the violated
right and relief claimed and not the Court
which is adjudicating such a proceeding.
Merely because the Magistrate is called
upon to adjudicate and enforce civil rights,
an application under Chapter IV of the
Domestic Violence Act will not be
sufficient to presume that it is of criminal
character. A Magistrate not exercising
function or determining cases of criminal
character cannot be said to be a criminal
court. The purpose of sending a notice to
the respondent through protection officer
u/s 12 of the Domestic Violence Act
instead of sending a summons as per
Section 61 of Cr.P.C. is to grant the
opportunity of hearing to the respondent
before passing any order and not to accuse
him of any offence. Even otherwise, none
of the provisions providing relief to the
aggrieved person is in the nature of the
offence. It is only when the protection or
interim protection order was breached
only
then
the
criminal
proceeding
commences u/s 31 & 32 of the Domestic
Violence Act. The word "complaint" is
defined u/s 2(d) of Cr.P.C. and the same is
quoted as under:-

"2(d)."complaint"
means
any
allegation made orally or in writing to a
Magistrate, with a view to his taking
action under this Code, that some person,
whether known or unknown, hascommitted
an offence, but does not include a police
report."

20. From the perusal of Section 2(d)
of Cr.P.C., it appears that where in an
application allegations are made against a
person who has committed an offence, but
in the case of notice issued u/s 12 of the
Domestic Violence Act, no allegation of
commission of an offence is made out. It
simply asks the respondent to reply to the
averments of the Application filed u/s 12 of
the Domestic Violence Act so that
appropriate civil remedy could be granted
to the aggrieved person. Rule 16(1) of
Rules, 2006 provides the format of
Application u/s 12 of the Domestic
Violence Act. This format (Form II)
nowhere provides any allegation to take
action on the part of the Magistrate for
committing any offence by the respondent.

21. From the above analysis, it is
clear that Application u/s 12 of the
Domestic Violence Act is not a complaint
as defined u/s 2(d) of Cr.P.C., the
procedure for the cognizance set out u/s
190(1)(a) of Cr.P.C. followed by the
procedure set out in Chapter XV of Cr.P.C.
for taking cognizance will have no
application to the proceeding under the
Domestic Violence Act. Therefore, Section
190(1)(a) of Cr.P.C. and the procedure
mentioned in Chapter XV of Cr.P.C. will
apply only in the cases of complaints u/s
2(d) Cr.P.C., filed before a Magistrate and
not an application u/s 12 of the Domestic
Violence Act. Therefore, the stage of the
issuing process contemplated u/s 204
Cr.P.C.
has
no
application
to
the
proceeding u/s 12 of the Domestic
Violence Act as the Court, while dealing
with the Application u/s 12 of the Domestic
Violence Act, is not taking cognizance of
any offence but simply dealing with an
application for civil relief. Consequently,
the procedure of Sections 200 & 202
Cr.P.C. will not be applicable for an
application u/s 12 of the Domestic
Violence Act.

22.

After
the
aforementioned
discussion, this Court comes to the
following conclusion:-
4 All. Sheshnath Singh @ Shishu Vs. State of U.P. & Anr.
639

(i) Nature of proceeding u/s 12 of
the Domestic Violence Act is a civil
proceeding, and Application u/s 12 of the
Domestic Violence Act is not the complaint
as mentioned u/s 2(d) Cr.P.C., therefore,
proceeding under the Domestic Violence
Act as well as order passed u/s 18, 19, 20,
21, 22 of the Domestic Violence Act are
civil in nature except the violation of
protection order which is punishable u/s 31
of the Domestic Violence Act;

(ii) Issuance of notice u/s 12 of
the Domestic Violence Act is not a
summon as mentioned u/s 61 of Cr.P.C.,
and
while
issuing
such
notice,
the
Magistrate does not take cognizance for
any offence as in the case of complaint
defined
u/s
2(d)
Cr.P.C.
Therefore,
procedure of Sections 200 & 202 Cr.P.C.
does not apply in the proceeding u/s 12 the
Domestic Violence Act.

23. In view of the foregoing
conclusion, the present Application is
dismissed.

24. The Registrar (Compliance) is
directed to circulate a copy of this order to
all the District Judges in the State of Uttar
Pradesh, who in turn will circulate the same
to all the judicial officers who are dealing
with applications u/s 12 of the Domestic
Violence Act.
----------
(2024) 4 ILRA 639
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482. No. 11714 of 2023

Sheshnath Singh @ Shishu ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Abhishek Pandey, Sri Raghvendra
Pratap Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Quashing of
Order Closing Prosecution Evidence - The
applicant
challenged
the
order
closing
prosecution evidence without deciding his
application for copies of case documents - Held,
the Trial Judge's failure to address the
application dated 21.11.2022 before closing
evidence
violated
the
applicant's
rights,
warranting quashing of the order. (Paras 1, 10,
29, 32)

B. Section 207 CrPC - Right to Documents -
The applicant, an accused in a murder trial,
sought copies of the case diary, inquest,
postmortem reports, and charge-sheet - Held,
Section 207 mandates furnishing Statements
recorded under Section 161 CrPC to the
accused, and non-compliance prejudiced the
applicant's right to cross-examine witnesses.
(Paras 11, 23, 24, 29)

C. Section 172 CrPC - Limited Access to Case
Diary - The St. argued the accused has no right
to case diary entries under Section 172 - Held,
the prohibition under Section 172(3) applies to
the Investigating Officer's observations, not to
witness Statements under Section 161, which
must be provided under Section 207. (Paras 13,
24, 26, 27)

D. Fair Trial and Natural Justice - The
applicant was denied the opportunity to crossexamine witnesses due to non-availability of
documents - Held, closing prosecution evidence
without providing mandated documents and
deciding the applicant's application infringed the
right to a fair trial, necessitating recall of
witnesses if required. (Paras 9, 10, 29, 32)

E. Judicial Discretion and Case Diary Use -
The applicant relied on precedents allowing