# Ram Lotan Vishwakarma & Ors v. State of U.P. & Anr

- **Citation:** (2025) 2 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-06
- **Case number:** Application U/S 482 No. 8107 of 2022
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-lotan-vishwakarma-ors-v-state-of-u-p-anr-53109
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - The Bhartiya Nagarik
Suraksha Sanhita, 2023 - Section 528 -
Protection of Women from Domestic
Violence Act, 2005 - Section 12 -
Allahabad High Court Rules, 1952, -
Chapter V Rule 6, - Constitution of India,
1950 - Article 226 & 227 - Application U/s
482 - to assail the proceeding initiated
under the provisions of the D.V. Act, 2005
- Preliminary Objection of Maintainability -
in view of the conflicting decisions of Coordinate Benches of this Court - Invocation of
Inherent Power - Conflicting Decisions of
the Co-ordinate Benches on the issue of
maintainability of a petition under Section 482
Cr.P.C for quashing an order passed on notice
issued under Section 12 of D.V. Act, 2005 - in
case of Smt. Suman Mishra, this court held
that the application under Section 482 Cr.P.C
was not maintainable - in case of Sandeep
Kishor, another Co-ordinate Bench held that an
application filed under Section 482 Cr.P.C would
not lie against an order passed under Section 12
of the D.V. Act, 2005 - in Case of Devendra
Agarwal, another Co-ordinate Bench held that
an application under Section 482 Cr.P.C is
maintainable - Referral to Larger Bench -
court referred the matter to a larger Bench for
reconsideration to settle the legal position and
bring about certitude on the subject - matter to
be placed before the Hon'ble Chief Justice for
requisite orders - The instant application shall
be adjourned by the trial court till final outcome
of the reference. (Para - 19, 20, 21, 23)

Application Pending. (E-11)

List of Cases cited:

## Text

_Characters 0–39,848 of 40,895. This is a partial read: ask again with offset=39848 for what follows._

142 INDIAN LAW REPORTS ALLAHABAD SERIES
9.In view of what has been stated
herein above, I do not find any merit in the
petition. The petition being devoid of merit
is dismissed.

The pending application, if any
stands disposed of.
---------
(2025) 2 ILRA 142
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.02.2025

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Application U/S 482 No. 8107 of 2022

Ram Lotan Vishwakarma & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sachin Chaturvedi

Counsel for the Opposite Parties:
G.A., Amit Kumar Singh

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - The Bhartiya Nagarik
Suraksha Sanhita, 2023 - Section 528 -
Protection of Women from Domestic
Violence Act, 2005 - Section 12 -
Allahabad High Court Rules, 1952, -
Chapter V Rule 6, - Constitution of India,
1950 - Article 226 & 227 - Application U/s
482 - to assail the proceeding initiated
under the provisions of the D.V. Act, 2005
- Preliminary Objection of Maintainability -
in view of the conflicting decisions of Coordinate Benches of this Court - Invocation of
Inherent Power - Conflicting Decisions of
the Co-ordinate Benches on the issue of
maintainability of a petition under Section 482
Cr.P.C for quashing an order passed on notice
issued under Section 12 of D.V. Act, 2005 - in
case of Smt. Suman Mishra, this court held
that the application under Section 482 Cr.P.C
was not maintainable - in case of Sandeep
Kishor, another Co-ordinate Bench held that an
application filed under Section 482 Cr.P.C would
not lie against an order passed under Section 12
of the D.V. Act, 2005 - in Case of Devendra
Agarwal, another Co-ordinate Bench held that
an application under Section 482 Cr.P.C is
maintainable - Referral to Larger Bench -
court referred the matter to a larger Bench for
reconsideration to settle the legal position and
bring about certitude on the subject - matter to
be placed before the Hon'ble Chief Justice for
requisite orders - The instant application shall
be adjourned by the trial court till final outcome
of the reference. (Para - 19, 20, 21, 23)

Application Pending. (E-11)

List of Cases cited:

1. Smt. Suman Mishra Vs The St. of U.P -
Application U/S 482 No. 6975 of 2013 decided
on 31.07.2024,

2. Sandeep Kishore & anr. Vs St. of U.P -
Application U/s No. 11130 of 2024 - decided on
09.08.2024,

3. Devendra Agarwal & ors.Vs the St. of U.P. &
anr. - Application U/S 482 No.18994 of 2024
decided on 27.11.2024,

4. P. Pathamanathan Vs Monica : (2021) SCC
Online Mad 8731,

5. Kunapareddy Vs Kunapareddy Swarna Kumari
: (2016) 11 SCC 774,,

6. Kamatchi Vs Laxmi Narayanan: (2022) 15
SCC 50,

7. Dinesh Kumar Yadav Vs St. of U.P: 2016 SCC
OnLine All 3848,

8. St. of Bihar Vs Kalika Kuer : (2003) 5 SCC
448,

9. Mary Pushpam Vs Telvi Curusumary &
ors.(2024) 3 SCC 224,

10. UP Power Corporation Ltd. Vs Rajesh Kumar
(2012) 7 SCC 1
2 All. Ram Lotan Vishwakarma & Ors. Vs. State of U.P. & Anr.
143
11. Shri Bhagwan Vs Ram Chand, AIR 1965 SC
1767,

12. Sundarjas Kanyalal Bhatija Vs Collector,
(1989) 3 SCC 396,

13. Kamatchi Vs Laxmi Narayanan reported in
2022 SCC Online SC 446.

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Shri Sachin Chaturvedi,
learned Counsel for the applicants, Shri
S.N.
Tilhari,
learned
Additional
Government
Advocate
for
respondent
no.1/State, Shri Amit Kumar Singh, learned
Counsel for the respondent no.2.

(2) This application/petition was
taken up for hearing on the preliminary
objection of maintainability in view of the
conflicting
decisions
of
Co-ordinate
Benches of this Court.

(3) Inherent power of this Court is
sought to be invoked under Section 528 of
Bharatiya
Nagarik
Suraksha
Sanhita
(B.N.S.S.), 2023 (corresponding Section
482 of the Code of Criminal Procedure,
1973), to assail the proceedings initiated
against the applicants under the provisions
of Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to
as 'D.V. Act').

(4) Conflicting decisions of the Coordinate Benches have been brought to the
notice of this Court on the issue of
maintainability of a petition under Section
482 Cr.P.C for quashing an order passed on
notice issued under Section 12 of D.V. Act.
On the one hand are the decisions of this
Court (Corum: Hon'ble Om Prakash
Shukla, J.) dated 31.07.2024 passed in
Application U/S 482 No. 6975 of 2013:
Smt. Suman Mishra Vs. The State of U.P.
and a decision of a Co-ordinate Bench of
this Court (Coram : Hon'ble Anish Kumar
Gupta, J.) dated 09.08.2024 passed in
Application U/s No. 11130 of 2024 :
Sandeep Kishore and another Vs. State of
U.P. and another, whereas on the other
hand is the decision of another Co-ordinate
Bench of this Court (Coram: Hon'ble Arun
Kumar Singh Deshwal J.) dated 27.11.2024
taking a divergent view in a bunch of
applications/petitions filed under Section
482 Cr.P.C., leading Application U/S 482
No.18994 of 2024 : Devendra Agarwal & 3
Others Vs. the State of U.P. and another.
Whereas the decisions passed by this Court
i.e. in Smt. Suman Mishra's (supra) and
decision passed by a Co-ordinate Bench of
this Court i.e. in Sandeep Kishore (supra),
hold that application filed under Section
482 of Cr.P.C. challenging the notice
issued by the Protection Officer for the
purpose of inquiry in pursuance of the
order of the Magistrate passed on an
application under Section 12 of the D.V.
Act is not maintainable, the later decision
passed by another Co-ordinate Bench of
this Court (Coram : Hon'ble Arun Kumar
Singh Deshwal J.) i.e. in Devendra
Agarwal's case (supra) has decided in
favour of the maintainability of the
application filed under Section 482 Cr.P.C.
seeking to quash the proceeding under
Section 12 of the D.V. Act.

(5) In Smt. Suman Mishra Vs the
State of U.P. and another (supra), this
Court was dealing with a situation wherein
the Magistrate on an application filed by
the victim under D.V. Act had directed to
register it as miscellaneous case and also
directed the Protection Officer to submit a
domestic incident report after conducting a
preliminary enquiry. The Protection Officer
in turn, while conducting the said enquiry
in compliance to the said order of the
144 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate,
issued
notice
to
the
applicant/petitioner requiring her to submit
reply, however, instead of participating in
the
preliminary
inquiry,
applicant/
petitioner had approached the Magistrate,
seeking
to
quash
the
said
notice/proceedings and delete her name,
which was rejected by the Magistrate.
Feeling aggrieved, applicant/ petitioner had
filed revision, which too was rejected by
the revisional Court. In the aforesaid
background, the applicant interdicted both
the aforesaid orders before this Court in
Application U/s. 482 Cr.P.C. No. 6975 of
2013 and this Court after hearing the
parties regarding maintainability of the
application filed under Section 482 Cr.P.C,
noted the ratio laid down by the Hon'ble
Madras High Court in a batch of matters,
leading being P. Pathamanathan Vs
Monica : ( 2021) SCC Online Mad 8731,
wherein the Madras High court extensively
dealt with the object & various provisions
of the Domestic Violence Act, 2005 and
had also relied on the authoritative
judgment
of
the
Apex
Court
in
Kunapareddy v. Kunapareddy Swarna
Kumari : (2016) 11 SCC 774, to hold that
all the reliefs contemplated under ChapterVI of the D.V. Act were civil in nature.

(6) Further, this Court in the said
Suman Mishra's case (Supra) also relied on
the judgment of the Hon'ble Apex Court in
the
case
of
Kamatchi
Vs.
Laxmi
Narayanan: (2022) 15 SCC 50, and
expressed its agreement with decision of
the learned Single Judge of Hon'ble
Madras
High
Court
in
P.
Pathamanathan's case and decision of the
Apex Court rendered in Kamatchi's case
(supra). This Court had also taken note of
decision of Full Bench in Dinesh Kumar
Yadav v. State of U.P: 2016 SCC OnLine
All 3848. In the said backdrop, this Court
in Smt. Suman Mishra's case (Supra),
while
examining
the
issue
of
maintainability of an application preferred
under Section 482 Cr.P.C challenging the
issuance of a notice by the Magistrate
leading to initiation of proceedings by a
Protection Officer under Section 12 of the
D.V. Act, held the application to be not
maintainable in the facts of the said case
and rejected it.

(7) In Sandeep Kishor and
another Vs. State of U.P. and another
(Supra), relying on Smt. Suman Mishra
(Supra), Dinesh Kumar Yadav (Supra),
Dr. P. Pathmanathan (Supra) another
Co-ordinate Bench has also held that
application filed under Section 482 Cr.P.C.
would not lie against an order passed under
Section 12 of the D.V. Act.

(8)
However,
in
Devendra
Agarwal and 3 others Vs. the State of
U.P. (supra), another Co-ordinate Bench
of this Court (Coram: Hon'ble Arun Kumar
Singh
Deshwal,
J.),
has
held
after
considering the judgment in Smt. Suman
Mishra (Supra) as per incuriam being
contrary to the Full Bench of this Court in
Dinesh Kumar Yadav (Supra), incorrectly
relying upon the judgment of the Apex
Court in Kamatchi (Supra) and as a
corollary, an Application under Section 482
Cr.P.C. (now Section 528 of BNSS) has
been held to be maintainable against an
order passed in or the entire proceeding
under D.V. Act, 2005.

(9)
Learned
Counsel
for
the
respondent No.2 has submitted that in
Kamatchi (Supra), the Apex Court has
noted with approval the decision rendered
by the learned Single Judge in Dr. P.
Padmanathan Vs. Tmt. V. Monica (Supra).
According to the learned Counsel, at the
2 All. Ram Lotan Vishwakarma & Ors. Vs. State of U.P. & Anr.
145
stage of issuance of notice, the provisions
of Cr.P.C. will not apply as the application
under Section 12 of the DV Act is not a
complaint. According to him, the Single
Judge in Dr. P. Padmanathan (Supra)
relying on the Supreme Court judgment in
Kunapareddy (Supra), held that such an
application was not maintainable under
section 482 Cr.P.C and in that regard also
issued a slew of observations and directions
in that batch of cases, which also makes for
an interesting enumeration, as herein below
:-

"The following directions are,
therefore, issued:

i. An application under Section
12 of the D.V. Act, is not a complaint under
Section 2(d) of the Cr.P.C. Consequently,
the procedure set out in Section 190(1)(a)
& 200 to 204, Cr.P.C. as regards cases
instituted
on
a
complaint
has
no
application to a proceeding under the D.V.
Act. The Magistrate cannot, therefore, treat
an application under the D.V. Act as
though it is a complaint case under the
Cr.P.C.

ii. An application under Section
12 of the Act shall be as set out in Form II
of the D.V. Rules, 2006, or as nearly as
possible
thereto.
In
case
interim exparte orders
are
sought
for
by
the
aggrieved person under Section 23(2) of
the Act, an affidavit, as contemplated under
Form III, shall be sworn to.

iii. The Magistrate shall not issue
a summon under Section 61, Cr.P.C. to a
respondent(s) in a proceeding under
Chapter IV of the D.V. Act. Instead, the
Magistrate shall issue a notice for
appearance which shall be as set out in
Form VII appended to the D.V. Rules,
2006. Service of such notice shall be in the
manner prescribed under Section 13 of the
Act and Rule 12(2) of the D.V. Rules, and
shall be accompanied by a copy of the
petition and affidavit, if any.

iv. Personal appearance of the
respondent(s) shall not be ordinarily
insisted upon, if the parties are effectively
represented through a counsel. Form VII of
the D.V. Rules, 2006, makes it clear that
the
parties
can
appear
before
the
Magistrate either in person or through a
duly authorized counsel. In all cases, the
personal appearance of relatives and other
third parties to the domestic relationship
shall be insisted only upon compelling
reasons
being
shown.
(See Siladitya
Basak v. State of West Bengal (2009 SCC
OnLine Cal 1903).

v. If the respondent(s) does not
appear either in person or through a
counsel in answer to a notice under Section
13, the Magistrate may proceed to
determine the application exparte.

vi. It is not mandatory for the
Magistrate to issue notices to all parties
arrayed as respondents in an application
under Section 12 of the Act. As pointed out
by this Court in Vijaya Baskar (cited
supra), there should be some application of
mind on the part of the Magistrate in
deciding the respondents upon whom
notices should be issued. In all cases
involving relatives and other third parties
to
the
matrimonial
relationship,
the
Magistrate must set out reasons that have
impelled them to issue notice to such
parties. To a large extent, this would
curtail the pernicious practice of roping in
all and sundry into the proceedings before
the Magistrate.

vii. As there is no issuance of
process as contemplated under Section
204, Cr.P.C. in a proceeding under the
D.V. Act, the principle laid down in Adalat
Prasad v. Rooplal Jindal ((2004) 7 SCC
338) that a process, under Section 204,
Cr.P.C, once issued cannot be reviewed or
146 INDIAN LAW REPORTS ALLAHABAD SERIES
recalled, will not apply to a proceeding
under the D.V. Act. Consequently, it would
be open to an aggrieved respondent(s) to
approach the Magistrate and raise the
issue
of
maintainability
and
other
preliminary issues. Issues like the existence
of
a
shared
household/domestic
relationship
etc.,
which
form
the
jurisdictional basis for entertaining an
application under Section 12, can be
determined as a preliminary issue, in
appropriate cases. Any person aggrieved
by such an order may also take recourse to
an appeal under Section 29 of the D.V. Act
for
effective
redress
(See V.K.
Vijayalekshmi Amma v. Bindu V., (2010) 87
AIC 367). This would stem the deluge of
petitions challenging the maintainability of
an application under Section 12 of the D.V.
Act, at the threshold before this Court
under Article 227 of the Constitution.

viii.
Similarly,
any
party
aggrieved may also take recourse to
Section 25 which expressly authorises the
Magistrate to alter, modify or revoke any
order under the Act upon showing change
of circumstances.

ix. In Kunapareddy (cited supra),
the Hon'ble Supreme Court upheld the
order
of
a
Magistrate
purportedly
exercising powers under Order VI, Rule 17
of The Civil Procedure Code, 1908
(hereinafter referred to as "C.P.C."), to
permit the amendment of an application
under Section 12 of the D.V. Act. Taking a
cue therefrom, it would be open to any of
the respondent(s), at any stage of the
proceeding, to apply to the Magistrate to
have their names deleted from the array of
respondents if they have been improperly
joined as parties. For this purpose, the
Magistrate can draw sustenance from the
power under Order I Rule 10(2) of the
C.P.C. A judicious use of this power would
ensure that the proceedings under the D.V.
Act do not generate into a weapon of
harassment and would prevent the process
of Court from being abused by joining all
and sundry as parties to the lis.

x. The Magistrates must take note
that the practice of mechanically issuing
notices to the respondents named in the
application has been deprecated by this
Court nearly a decade ago in Vijaya
Baskar (cited supra). Precedents are meant
to be followed and not forgotten, and the
Magistrates would, therefore, do well to
examine the applications at the threshold
and confine the inquiry only to those
persons whose presence before it is proper
and necessary for the grant of reliefs under
Chapter IV of the D.V. Act.

xi.
In Satish
Chandra
Ahuja (cited supra), the Hon'ble Supreme
Court has pointed out the importance of the
enabling provisions under Section 26 of the
D.V.
Act
to
avoid
multiplicity
of
proceedings. Hence, the reliefs under
Chapter IV of the D.V. can also be claimed
in a pending proceeding before a civil,
criminal or family court as a counter claim.

xii. While recording evidence, the
Magistrate may resort to chief examination
of the witnesses to be furnished by affidavit
(See Lakshman v. Sangeetha, (2009) 3
MWN (Cri) 257. The Magistrate shall
generally follow the procedure set out in
Section 254, Cr.P.C. while recording
evidence.

xiii. Section 28(2) of the Act is an
enabling
provision
permitting
the
Magistrate to deviate from the procedure
prescribed under Section 28(1), if the facts
and circumstances of the case warrants
such a course, keeping in mind that in the
realm of procedure, everything is taken to
be
permitted
unless
prohibited
(See
Muhammad Sulaiman Khan v. Muhammad
Yar Khan, ILR (1888) 11 All 267).
2 All. Ram Lotan Vishwakarma & Ors. Vs. State of U.P. & Anr.
147

xiv. A petition under Article 227
of
the
Constitution
may
still
be
maintainable if it is shown that the
proceedings before the Magistrate suffer
from a patent lack of jurisdiction. The
jurisdiction under Article 227 is one of
superintendence and is visitorial in nature
and will not be exercised unless there exists
a clear jurisdictional error and that
manifest or substantial injustice would be
caused if the power is not exercised in
favour of the petitioner. (See Abdul Razak
v. Mangesh Rajaram Wagle, (2010) 2 SCC
432,
Virudhunagar
Hindu
Nadargal
Dharma Paribalana Sabai v. Tuticorin
Educational Society, (2019) 9 SCC 538). In
normal circumstances, the power under
Article 227 will not be exercised, as a
measure of self-imposed restriction, in view
of the corrective mechanism available to
the
aggrieved
parties
before
the
Magistrate, and then by way of an appeal
under Section 29 of the Act."

(10) According to the learned
Counsel for the respondent no.2, in the
present case, the learned Magistrate, on
presentation of application filed under
Section 12 of D.V. Act. has registered the
case and directed the Protection Officer to
make an inquiry and submit his report,
therefore, in the facts and circumstances of
the case, the present application under
Section 482 Cr.P.C., is not maintainable
and referred to paragraph 19, 20 and 21 of
the Smt. Suman's case (Supra) in this
regard, which are being quoted herein
below:

"19. Having noted the judgment
passed by the Hon'ble Madras High Court in
Dr. P.C Pathmanathan's case (supra), it
would be necessary to consider the main
question involved nefore Hon'ble Supreme
Court in Kamatchi case (supra), the
Respondent (husband and in-laws) had
challenged the proceedings initiated by the
Appellant/Wife under Section 12 of the D.V.
Act by filing an application under Section
482 of the Cr.P.C. The Application of fatherin-law was allowed. However, with regard to
the Application filed by the husband,
although the Hon'ble High Court had
rejected
the
contention
of
the
Respondent/Husband on merit, however on
the point of limitation, the application under
Section 12 of the D.V. Act was dismissed by
the High Court as the same was filed after
one year by the appellant/wife. The said
order was challenged by the wife by filing an
appeal before the Hon'ble Supreme Court.
Before, the Hon'ble Supreme Court, on
behalf of the wife, two submissions were
advanced; firstly, that the limitation for filing
application under Section 12 of the D.V. Act
and the limitation provided under Section 468
CrPC would be applicable only for initiation of
criminal prosecution under Sections 31 and 33
of the DV Act; and secondly that the judgments
relied upon by the High Court were
distinguishable and for that purpose reliance
was placed on the decision of learned Single
Judge
of
Madras
High
Court
in
P.
Pathmanathan
case.
Learned
counsel
representing the respondent/ husband relied
upon the decision in Sarah Mathew v. Institute of
Cardio Vascular Diseases (2014) 2 SCC 62 to
substantiate his submission that period of
limitation would be one year and the same has to
be reckoned from the date of the application. The
second submission was made by relying upon
the decision in Adalat Prasad case. Hon'ble
Supreme
Court
in
Kamatchi
case
has
reproduced the said written submission in para
10. Said para 10 of the judgment in Kamatchi
case needs to be extracted, which reads as
under: (Kamatchi case, p. 61, para 10)

"11. In the written submissions, it
is also submitted that:
148 INDIAN LAW REPORTS ALLAHABAD SERIES

'This Hon'ble Court in Adalat
Prasad v. Rooplal Jindal (2004) 7 SCC 338
held that if a Magistrate takes cognizance
of an offence, issues process without there
being any allegation against the accused,
or any material implicating the accused, or
in contravention of provisions of Sections
200 and 202, the order of the Magistrate
may be vitiated. However, the relief an
aggrieved accused can obtain at that stage
is not by invoking Section 203 of the Code,
because the Code does not contemplate a
review of an order. Hence in the absence of
any review power, or inherent power with
the subordinate criminal courts, the remedy
lies in invoking Section 482 of the Code.'"

20. It is to be noted that in P.
Pathmanathan case the issue of limitation
was not raised nor the same was dealt with.
The issue involved in the said case was
with
regard
to
maintainability
of
proceedings under Section 482 CrPC for
quashing the proceedings filed under
Section 12 of the DV Act. In order to meet
this argument advanced on behalf of the
appellant wife relying upon the decision in
P. Pathmanathan case learned counsel for
the respondent/husband before Hon'ble
Supreme Court relied upon the decision in
Adalat Prasad case and submitted that in
absence of review power or inherent power
with the subordinate criminal courts, the
remedy lies only by invoking Section 482
CrPC Negating the argument of the
husband, the Hon'ble Supreme Court made
the relevant observations in paras 27 to 30,
which are being extracted as herein below:

"27. The special features with
regard to an application under Section 12
of the Act were noticed by a Single Judge of
the High Court in P. Pathmanathan case as
under:

'19. In the first instance, it is,
therefore, necessary to examine the areas
where the DV Act or the D.V. Rules have
specifically set out the procedure thereby
excluding the operation of the CrPC as
contemplated under Section 28(1) of the
Act. This takes us to the D.V. Rules. At the
outset,
it
may
be
noticed
that
a
"complaint" as contemplated under the DV
Act and the D.V. Rules is not the same as a
"complaint" under CrPC. A complaint
under Rule 2(b) of the D.V. Rules is defined
as an allegation made orally or in writing
by any person to a Protection Officer. On
the other hand, a complaint, under Section
2(d) CrPC is any allegation made orally or
in writing to a Magistrate, with a view to
his taking action under the Code, that some
person, whether known or unknown has
committed
an
offence.
However,
the
Magistrate dealing with an application
under Section 12 of the Act is not called
upon to take action for the commission of
an offence. Hence, what is contemplated is
not a complaint but an application to a
Magistrate as set out in Rule 6(1) of the
D.V. Rules. A complaint under the D.V.
Rules is made only to a Protection Officer
as contemplated under Rule 4(1) of the
D.V. Rules.

20. Rule 6(1) sets out that an
application under Section 12 of the Act
shall be as per Form II appended to the
Act. Thus, an application under Section 12
not being a complaint as defined under
Section 2 (d) CrPC, the procedure for
cognizance set out under Section 190(1) (a)
of the Code followed by the procedure set
out in Chapter XV of the Code for taking
cognizance will have no application to a
proceeding under the DV Act. To reiterate,
Section 190(1)(a) of the Code and the
procedure set out in the subsequent
Chapter XV of the Code will apply only in
cases of complaints, under Section 2(d)
CrPC, given to a Magistrate and not to an
application under Section 12 of the Act.'
2 All. Ram Lotan Vishwakarma & Ors. Vs. State of U.P. & Anr.
149

28. It is thus clear that the High
Court wrongly equated filing of an
application under Section 12 of the Act to
lodging of a complaint or initiation of
prosecution. In our considered view, the
High Court was in error in observing that
the application under Section 12 of the Act
ought to have been filed within a period of
one year of the alleged acts of domestic
violence.

29. It is, however, true that as
noted by the Protection Officer in his
domestic inspection report dated 2-8-2018,
there appears to be a period of almost 10
years after 16-9-2008, when nothing was
alleged by the appellant against the
husband. But that is a matter which will
certainly be considered by the Magistrate
after response is received from the husband
and the rival contentions are considered.
That is an exercise which has to be
undertaken
by
the
Magistrate
after
considering
all
the
factual
aspects
presented before him, including whether
the allegations constitute a continuing
wrong.

30. Lastly, we deal with the
submission based on the decision in Adalat
Prasad case. The ratio in that case applies
when a Magistrate takes cognizance of an
offence and issues process, in which event
instead of going back to the Magistrate, the
remedy lies in filing petition under Section
482 of the Code. The scope of notice under
Section 12 of the Act is to call for a
response from the respondent in terms of
the statute so that after considering rival
submissions, appropriate order can be
issued. Thus, the matter stands on a
different footing and the dictum in Adalat
Prasad case would not get attracted at a
stage when a notice is issued under Section
12 of the Act."

21. It is to be noted that para 19
of P. Pathmanathan case has been
considered by the Hon'ble Supreme Court
in Kamatchi case and after considering the
same, it was held by the Hon'ble Supreme
Court that an application under Section 12 of
the DV Act cannot be equated with the
lodging of complaint or initiation of the
prosecution under the Criminal Procedure
Code, 1973. It was also held by the Hon'ble
Supreme Court that the decision in Adalat
Prasad case would not come to any rescue,
so as to justify the argument to invoke Section
482 CrPC in the DV Act proceeding when a
notice is issued under Section 12 of the DV
Act. It was also specifically held that Adalat
Prasad case would be applicable when a
Magistrate takes cognizance of the offense in
terms of Section 190(1)(a) of the Criminal
Procedure Code, 1973 and issue process and
not in the matter of issuance of notice under
Section 12 of the DV Act. Thus, it was
concluded by the Hon'ble Supreme Court that
the matter of taking cognizance for issuance
of process and matter under Section 12 of the
DV Act stands on different footing and
therefore, the decision in Adalat Prasad case
would not get attracted at the stage when
notice is issued under Section 12 of the Act by
the Magistrate concerned."

(11) It has also been submitted by
the learned Counsel for the respondent no.2
that this Court in Smt. Suman Mishra's
case (Supra) expressing its agreement with
the judgment of the learned Single Judge of
Madras High Court in P. Pathmanathan
case(supra) and Hon'ble Supreme Court in
Kamatchi's case (supra), also relied on
the judgment of a Full Bench of this Court
in Dinesh Kumar Yadav v. State of U.P:
2016 SCC OnLine All 3848, in the
following words:

 "(23) In terms of Section 28 of
the DV Act, proceedings under Sections 12
to 23 of the DV Act would be governed by
150 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of the Cr.P.C. Further, as per
Section 29 of the DV Act, an appeal against
the order of the Magistrate shall lie to the
Sessions Court. The DV Act does not
provide for any further appeal against the
order passed by the Sessions Court. This
Court in Dinesh Kumar Yadav v. State of
U.P : 2016 SCC OnLine All 3848, has held
that a revision to the High Court is
maintainable against an order passed by
the Sessions Court under Section 29 of the
DV Act. Relevant observations of the said
judgment are set out below:

"35. Under section 397 of Cr.
P.C. "the High Court or any Sessions
Judge may call for and examine the record
of any proceeding before any inferior
Criminal Court...". That the Court of
Sessions is as an inferior Court to the High
Court, cannot be disputed. Thus, the Court
of Sessions before which an appeal has
been prescribed under section 29 of the
Act, 2005 is a Criminal Court inferior to
the High Court and, therefore, a revision
against its order passed under section 29
will lie to the High Court under section 397
Cr.P.C.
section
401
Cr.
P.C.
is
supplementary to section 397 Cr.P.C.
xxxx xxxx xxxx xxxx

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
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, 2005."

(12) Learned Counsel for the
respondent no.2 draws the attention of this
Court to the conflicting decision by another
Co-ordinate Bench in Devendra Agarwal
and 3 others Vs. the State of U.P. (supra)
to contend that without discussing or
touching or considering the facts and
circumstances of the case involved in Smt.
Suman Mishra (Supra), the Co-ordinate
Bench of this Court had erroneously came
to the conclusion that the judgment of Smt.
Suman Mishra (supra) is per incurium.

(13) According to the learned Counsel
for the respondent no.2, the Apex Court in
catena of decisions have held that when a
decision of a Co-ordinate Bench of the
same High Court is brought to the notice of
the Bench, it is to be respected and is
binding subject to right of the Bench of
such co-equal quorum to take a different
view and refer the question to a larger
Bench. It is the only course of action open
to a Bench of co-equal strength, when
faced with the previous decision taken by a
Bench with same strength. In support of his
submission, he has placed reliance upon the
judgment of Apex Court in "State of Bihar
Vs. Kalika Kuer : (2003) 5 SCC 448",
"Mary Pushpam Vs. Telvi Curusumary &
Ors. (2024) 3 SCC 224" and "UP Power
Corporation Ltd. V/s Rajesh Kumar",
(2012)
7
SCC
1.
Learned Counsel
submitted that in Kalika Kuer (Supra), the
Apex Court has held as under :-

"10. Looking at the matter, in
view of what has been held to mean by per
incuriam, we find that such element of
rendering a decision in ignorance of any
provision of the statute or the judicial
2 All. Ram Lotan Vishwakarma & Ors. Vs. State of U.P. & Anr.
151
authority of binding nature, is not the
reason indicated by the Full Bench in the
impugned judgment, while saying that the
decision in the case of Ramkrit Singh [AIR
1979 Pat 250 : 1979 Pat LJR 161 (FB)]
was rendered per incuriam. On the other
hand, it was observed that in the case
of Ramkrit Singh [AIR 1979 Pat 250 : 1979
Pat LJR 161 (FB)] the Court did not
consider the question as to whether the
Consolidation Authorities are courts of
limited jurisdiction or not. In connection
with this observation, we would like to say
that an earlier decision may seem to be
incorrect to a Bench of a coordinate
jurisdiction considering the question later,
on the ground that a possible aspect of the
matter was not considered or not raised
before the court or more aspects should
have been gone into by the court deciding
the matter earlier but it would not be a
reason to say that the decision was
rendered per incuriam and liable to be
ignored. The earlier judgment may seem to
be not correct yet it will have the binding
effect on the later Bench of coordinate
jurisdiction. Easy course of saying that
earlier decision was rendered per incuriam
is not permissible and the matter will have
to be resolved only in two ways - either to
follow the earlier decision or refer the
matter to a larger Bench to examine the
issue, in case it is felt that earlier decision
is not correct on merits. Though hardly
necessary, we may however, refer to a few
decisions on the above proposition."
(Emphasis supplied)

(14)
Learned
Counsel
for
the
respondent no.2 has further stated that in Mary
Pushpam Vs. Telvi Curusumary & Ors.
(Supra), the Apex Court has held as under :-

"1.
The
rule
of
"Judicial
Discipline and Propriety" and the doctrine
of precedents has a merit of promoting
certainty
and
consistency
in
judicial
decisions providing assurance to individuals
as to the consequences of their actions. The
Constitution Benches of this Court have time
and again reiterated the rules emerging from
judicial discipline. Accordingly, when a
decision of a coordinate Bench of the same
High Court is brought to the notice of the
Bench, it is to be respected and is binding
subject to right of the Bench of such co-equal
quorum to take a different view and refer the
question to a larger Bench. It is the only
course of action open to a Bench of co-equal
strength, when faced with the previous
decision taken by a Bench with same
strength."

(15) In this backdrop, learned
Counsel for the respondent No.2 has
contended that the only course available to
a Co-ordinate Bench in case of taking a
different view was to "frame the question
of law" and refer the said questions to a
Larger Bench.

(16) According to the learned
Counsel for the respondent no.2, it was not
open on the part of a Bench of co-equal
strength to decide as to whether the
judgment passed by the earlier Bench of
equal strength was per incuriam or not.
Hence, he prays that in view of conflicting
decisions of Co-ordinate Benches, this
Court may refer these issues to a larger
Bench for its consideration.

(17)
Learned
AGA
has
also
supported the submission of the learned
Counsel for the respondent no.2 with
regard to referring the matter to a larger
Bench.

(18) Learned Counsel for the
applicants/petitioners, on the other hand,
152 INDIAN LAW REPORTS ALLAHABAD SERIES
has no objection in referring the issue to the
larger Bench, however, he prays that some
protection
may
be
granted
to
the
applicants/petitioners till final outcome of
the decision of larger Bench.

(19) This Court may refer to the
decision of the Hon'ble Supreme Court in
the case of "UP Power Corporation Ltd.
V/s Rajesh Kumar": (2012) 7 SCC 1,
which is relevant to the context. In the said
judgment, the Hon'ble Supreme Court,
after referring and quoting passage from
the judgment of 'Shri Bhagwan Vs Ram
Chand,
AIR
1965
SC
1767'
and
'Sundarjas
Kanyalal
Bhatija
V/s
Collector, (1989) 3 SCC 396', held at
paragraph 20 of the said judgment, which
makes for an interesting read and is being
quoted as herein below :-

"20.
The
aforesaid
pronouncements clearly lay down what is
expected from the Judges when they are
confronted with the decision of a Coordinate Bench on the same issue. Any
contrary attitude, however adventurous and
glorious may be, would lead to uncertainty
and inconsistency. It has precisely so
happened in the case at hand. There are
two decisions by two Division Benches
from the same High Court. We express our
concern about the deviation from the
judicial decorum and discipline by both the
Benches and expect that in future, they
shall
be
appositely
guided
by
the
conceptual eventuality of such discipline
as laid down by this Court from time to
time. We have said so with the fond hope
that
judicial
enthusiasm
should
not
obliterate the profound responsibility that
is expected from the Judges."

(20)
Having
regard
to
the
submissions advanced by the learned
Counsel for the parties, which this Court
concerns and considering the conflicting
judgment on the subject; one in the case of
Smt. Suman Mishra (supra) and another
in the case of Devendra Agarwal (supra),
as also the proprietary of a Single Judge
Bench declaring decision of Co-ordinate
Bench per incurium, without referring the
issue to a larger bench, this Court is of the
opinion that matter requires reconsideration
by a Larger Bench so that the legal position
in this regard is settled so as to bring about
certitude on the subject.

(21) In this view of the matter, this
Court refers the following questions for
consideration by a Bench of such strength
as Hon'ble the Chief Justice may deem
appropriate under Chapter V Rule 6 of the
Allahabad High Court Rules, 1952 :-

I. Whether it was open for the
learned
Single
Judge
in
Devendra
Agarwal (supra) to declare the judgment
of a Co-ordinate bench as per incurium,
rather than refer its correctness to a larger
Bench ?;

II. Whether for the purpose of
seeking quashing of proceedings filed
under Section 12 of the D.V.Act, 2005 at
the stage of issuance of notice, remedy is
under Section 482 Code of Criminal
Procedure, 1973 and/or under Article
226/227 of the Constitution of India?;

III. Whether section 528 BNSS
(corresponding section 482 Cr.P.C) can be
invoked and/or is maintainable against any
and all proceedings under the provisions of
Domestic Violence Act, 2005 in view of
the decision of the Apex Court in the case
of Kamatchi Vs. Laxmi Narayanan
reported in 2022 SCC Online SC 446?

IV. Whether judgment rendered
in the case of Devendra Agarwal and 3
others Vs. Sate of U.P. and another
2 All. Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.
153
(Supra), lays down the law correctly on the
issue
of
maintainability
of
an
application/petition under Section 482
Cr.P.C. for quashing of the proceedings
under Section 12 of the D.V.Act at the
stage of issuance of notice or it is the
judgment in Smt. Suman Mishra's case
(supra) lays down the law correctly?

V. Whether a notice issued by the
Protection
Officer
for
conducting
a
preliminary enquiry pursuant to a direction
by the Magistrate under Section 12 of the
D.V. Act, 2005 is amenable to section 528
BNSS (erstwhile section 482 Cr.P.C) or
other proceedings like Article 226 or 227 of
the Constitution of India?.

VI. Whether a Co-ordinate Bench
of a High Court can frame an issue without
considering the factum of another case
rendered by another Co-ordinate Bench of
this Court and hold a Judgment per
incurium of another Co-ordinate Bench of
equal strength, without first expressing its
own view and then referring both the
earlier Judgment and its own view, to a
larger
Bench,
for
reconciliation
and
restating the law for clarity, consistency
and certainty?; and

VII. Whether the principle of
stare decisis should be followed by a Coordinate Bench of equal strength and is to
be respected and binding subject to right of
the Bench of such co-equal quorum to take
a different view and refer the question to a
larger Bench ?.

(22) Let the matter be placed before
Hon'ble the Chief Justice for requisite
orders.

(23) As noted above, since the matter
is
being
referred,
in
case
the
applicants/petitioners move an application
for adjournment of the case before the trial
Court, this Court hopes and trusts that it
shall be adjourned by the trial Court till
final outcome of the reference.
---------
(2025) 2 ILRA 153
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.02.2025

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 11952 of 2024

Brij Bhushan Sharan Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sushil Kumar Singh, Janardan Singh

Counsel for the Opposite Parties:
G.A.