# Smt. Suman Mishra v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 524
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-31
- **Case number:** Application U/S 482. No. 6975 of 2013
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-suman-mishra-v-state-of-u-p-ors-52229
- **Pages:** 14

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 6, 190(1)(a) & 482 -
Domestic Violence Act, 2005 - Sections 12,
22, 28 & 29: - Application U/s 482 - against
impugned orders - wherein her prayer for
quashing the proceedings initiated against her
under D.V. Act, arsing out from a complaint case
as well as to delete her name from that
complaint case was rejected which was affirmed
by the revisional court below - question of
maintainability - preliminary objection, on the
ground that, proceeding u/section 482 of the
Cr.P.C. for quashing the proceeding initiated
u/section 12 of the D.V. Act is not maintainable
by relying upon the decision of the Hon'ble
supreme court in a case of 'Arul Danial Vs
Suganya' and the remedy available to such a
party would be a statutory appeal before the
Session Court u/section 29 of the D.C. Act, -
court finds that, the provision of section 482
Cr.P.C. cannot be allowed to short-circuit the
7 All. Smt. Suman Mishra Vs. State of U.P. & Ors.
525
proceedings under the provisions of D.V. Act, -
the power of quashing a criminal proceeding u/s
482 should be exercise very sparingly and with
circumspection and that too in the rarest of rare
case - held, application made under section 482
Cr.P.C. challenging the proceeding under section
12 of the D.V. Act is not maintainable -
accordingly, application is dismissed with liberty
to the applicant to take recourse as provided
under law if so desires.(Para - 17, 29, 31, 32)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,643 of 47,616. This is a partial read: ask again with offset=39643 for what follows._

524 INDIAN LAW REPORTS ALLAHABAD SERIES

18.

In
other
words,
the
Magistrate/Court of competent jurisdiction
while dealing with an application under
Section 156(3) Cr.P.C. is empowered to
pass an order for registration of FIR and
investigate into the matter or to treat such
application as a 'Complaint Case', if
Investigation in the matter is not required
and he is fully empowered to reject the
application under Section 156(3) Cr.P.C.

19. From the application under
consideration as also the application under
Section 156(3) Cr.P.C. which is on record
as Annexure No. 3, this Court finds that
applicant and opposite party No.5/Jagdish
Kumar are real brother and opposite party
No.2 to 4 namely Avdhesh Kumar, Krishna
Kumar and Dinesh Kumar are nephew of
the
applicant
and
opposite
party
No.6/Rakraksha Pandey is the father-in-law
of opposite party No.5/Jagdish Pandey,
who
based
upon
the
"Will"
dated
28.07.1990, alleged to have been forged,
claimed right over the property of the
testator (father of applicant and opposite
party No.5/Jagdish Kumar) by filing a Case
No. 681-682/913 under Section 34 of the
U.P. Land Revenue Act, 1901 in the year
2008 and thereafter the applicant after huge
delay
preferred
an
application
dated
27.08.2015 under Section 156(3) Cr.P.C.
before the Magistrate.

20. Having considered the aforesaid
facts and circumstances of the case as also
the settled principle of law on the issue, this
Court is of the view that the impugned
order(s) dated 29.01.2016 and 28.07.2023
have rightly been passed as the dispute
essentially appears to be a civil dispute and
application under Section 156(3) Cr.P.C.
was moved after huge delay and the
Hon'ble
Apex
Court
in
various
pronouncements has stated that a person
should not be permitted to give a criminal
colour to a civil dispute.

21. For the reasons aforesaid, this
Court finds no force in the present
application. It is accordingly dismissed.
Costs made easy.
----------
(2024) 7 ILRA 524
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.07.2024

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Application U/S 482. No. 6975 of 2013

Smt. Suman Mishra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Shishir Pradhan

Counsel for the Opposite Parties:
G.A., Ashok Kr. Verma

Criminal Law - Criminal Procedure Code,
1973 - Sections 6, 190(1)(a) & 482 -
Domestic Violence Act, 2005 - Sections 12,
22, 28 & 29: - Application U/s 482 - against
impugned orders - wherein her prayer for
quashing the proceedings initiated against her
under D.V. Act, arsing out from a complaint case
as well as to delete her name from that
complaint case was rejected which was affirmed
by the revisional court below - question of
maintainability - preliminary objection, on the
ground that, proceeding u/section 482 of the
Cr.P.C. for quashing the proceeding initiated
u/section 12 of the D.V. Act is not maintainable
by relying upon the decision of the Hon'ble
supreme court in a case of 'Arul Danial Vs
Suganya' and the remedy available to such a
party would be a statutory appeal before the
Session Court u/section 29 of the D.C. Act, -
court finds that, the provision of section 482
Cr.P.C. cannot be allowed to short-circuit the
7 All. Smt. Suman Mishra Vs. State of U.P. & Ors.
525
proceedings under the provisions of D.V. Act, -
the power of quashing a criminal proceeding u/s
482 should be exercise very sparingly and with
circumspection and that too in the rarest of rare
case - held, application made under section 482
Cr.P.C. challenging the proceeding under section
12 of the D.V. Act is not maintainable -
accordingly, application is dismissed with liberty
to the applicant to take recourse as provided
under law if so desires.(Para - 17, 29, 31, 32)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

1. Sou. Sandhya Manoj Wankhade Vs Manoj Bhimrao
Wankhade & ors.- 2011 (3) SCC 650,

2. Prabha Tyagi Vs Kamlesh Devi - (2022) 8 SCC 90,

3. Kamatchi Vs Laxmi Narayanan - (2022) 15 SCC
50,

4. Dr. P. Pathamanathan & ors.Vs Tmt. Vs Monika &
ors.- 2021 SCC Online (Madras) 8731,

5. Adalat Prasad Vs Ruplal Jindal, reported in (2004)
7 SCC 338,

6. Preeti Gupta & anr. Vs St. of Jharkhand & anr.
(Criminal Appeal No. 1512/2010, decided on
13.08.2010),

7. St. of Har. and Bhajan Lal & ors.- 1992 Supp. (1)
SCC 335,

8. Mohammad Maqeenuddin Ahmed Vs St. of Andhra
Pradesh & anr.- 2007CriLJ 3361,

9. Arul Daniel Vs Suganya - 2022 SCC OnLine Mad
5435,

10. Dr. P. Pathmanathan Vs Vs Monica - 2021 SCC
OnLine Mad 8731,

11. Sarah Mathew Vs Institute of Cardio Vascular
Diseases - (2014) 2 SCC 62,

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

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

A. Prelude

1. Applicant, Smt. Suman Mishra,
who is the sister-in-law of opposite party
no.2-Smt. Parul Mishra, has filed the
instant application under Section 482 of the
Code
of
Criminal
Procedure,
1973,
assailing the order dated 13.04.2012 passed
by the Chief Judicial Magistrate, Barabanki
in Complaint Case No. 744 of 2012 : Smt.
Parul Mishra and another Vs. Nishant
Mishra and others, as well as the order
dated 21.09.2013 passed by the learned
Additional Sessions Judge/Special Judge
(E.C. Act), Barabanki in Criminal Revision
No. 112 of 2012 : Smt. Suman Mishra Vs.
Smt. Parul Mishra and others.

2. Apparently, by the impugned order
dated 13.04.2012, application filed by the
applicant dated 09.08.2011 seeking to
quash the proceeding instituted against her
by Smt. Parul Mishra (opposite party no.2
herein) in Complaint Case No. 744 of 2012
and a prayer to delete her name arrayed as
opposite party No.7 in Complaint Case No.
744 of 2012, was rejected, which came to
be affirmed by the learned Additional
Sessions Judge/Special Judge (E.C. Act),
Barabanki in Criminal Revision No. 112 of
2012 while rejecting the revision, by the
impugned order dated 21.09.2013.

B. Factual background

3. Shorn of unnecessary details, facts
in brief, as borne out from the pleadings,
are that opposite party no.2-Smt. Parul
Mishra had approached the Court of Chief
Judicial Magistrate, Lucknow by filing
application/complaint under Section 12 of
the Protection of Woman from Domestic
Violence Act, 2005 (hereinafter referred to
as 'DV Act, 2005') against nine persons
including the applicant, thereby seeking
526 INDIAN LAW REPORTS ALLAHABAD SERIES
protection orders, residence orders and
compensation orders to be passed under
various provisions of DV Act, 2005 and
also seeking for monetary reliefs under
Section 22 of the DV Act, 2005.

4. It was stated in the aforesaid
application/complaint case by the opposite
party no.2-Smt. Parul Mishra that her
marriage was solemnized with Nishant
Mishra in accordance with Hindu rites,
rituals and customs on 20.02.2007. At the
time of marriage, her parents and relatives
gave
sufficient
dowry
and
Stridhan,
including one Maruti WagonR Car, cash,
Jewellery, furniture and household items,
value of which would be Rs.20,00,000/-.
Out of the said wedlock, one daughter,
namely, Km. Garvita alias Vibhu was born.
Her husband Nishant Mishra is working as
Assistant Engineer (Mechanical Boiler
Maintenance
Care)/Chief
General
Manager, Parichha Thermal Power Station,
Jhansi and his monthly salary from all
sources was Rs.50,000/-. After marriage,
opposite party no.2 was living her marital
life in a joint family, but her husband,
father-in-law, mother-in-law, brother-inlaw, sister-in-law (applicant herein) and
other opposite parties in the aforesaid
complaint case used to torture her by
insulting and harassing her in various ways
and they also used to assault and abuse her
from time to time and they even were
planning to kill her by giving slipping pill.

5. Apparently, vide order dated
15.04.2011, the Chief Judicial Magistrate,
in view of the aforesaid complaint of the
opposite party No.2, directed to register the
aforesaid
complaint/
application
as
miscellaneous case and also directed the
Protection Officer to submit a domestic
incident report. In compliance thereof, the
complaint/ application of the opposite party
no.2-Smt. Parul
Mishra
and
Kumari
Garvita alias Vibhu was registered as
Complaint Case No. 774 of 2012.

6. On perusal of Annexure No.2,
which is an application filed by the
applicant
before
the
Chief
Judicial
Magistrate, Barabanki, it seems that a
preliminary inquiry was conducted by the
Protection Officer for compliance of the
aforesaid order of the Chief Judicial
Magistrate dated 15.04.2011 and for this
purpose, the Protection Officer had issued
notice to the applicant requiring to submit
her reply, however, it appears that instead
of participating in the preliminary inquiry
before the Protection Officer, the applicant
had filed an application before the Chief
Judicial Magistrate, Barabanki, seeking to
quash the proceedings instituted against her
and also praying to delete her name as
opposite party No.7 from the array of the
parties in Complaint Case No. 774 of 2012.
The learned Chief Judicial Magistrate, after
going through the averments made in the
complaint,
opined
that
complainants/opposite parties no.2 and 3
herein had sought relief in para No.26 of
the Complaint Case No. 774 of 2012
against all the opposite parties including
the applicant, therefore, , application filed
by the applicant was not acceptable and
accordingly, vide order dated 13.04.2012,
application of the applicant was rejected by
the Chief Judicial Magistrate, Barabanki.

7. The applicant being aggrieved had
filed Criminal Revision No. 112 of 2012
before
the
Additional
Sessions
Judge/Special Judge (E.C. Act), Barabanki,
challenging the aforesaid order dated
13.04.2012 passed by the Chief Judicial
Magistrate, Barabanki, which was rejected
while affirming the order dated 13.04.2012
by the Additional Sessions Judge/Special
7 All. Smt. Suman Mishra Vs. State of U.P. & Ors.
527
Judge (E.C. Act), Barabanki vide order
dated 21.09.2013.

8. In the aforesaid backdrops, the
applicant has approached this Court under
Section 482 Cr.P.C., challenging the
aforesaid two orders i.e. dated 13.04.2012
passed by the Chief Judicial Magistrate,
Barabanki and the order dated 21.09.2013
passed
by
the
Additional
Sessions
Judge/Special Judge (E.C. Act), Barabanki.

9. Heard Shri Shishir Pradhan,
learned Counsel for the applicant, Shri
Mayank
Singh,
learned
Additional
Government Advocate for the State and
Shri Ashok Kumar Verma, learned Counsel
for the opposite parties no. 2 and
3/complainant.

C. Preliminary Objection

10. At the outset, Shri Ashok Kumar
Verma, learned Counsel representing the
complainants/opposite parties no. 2 and 3
have questioned the maintainability of the
present application filed under Section 482
of the Cr.P.C.

11. In order to canvas the issue of
maintainability of the application under
Section 482 of Cr.P.C., learned Counsel
placing reliance on the decision of the
Hon'ble Supreme Court in the case of Sou.
Sandhya Manoj Wankhade Vs. Manoj
Bhimrao Wankhade and others : 2011
(3) SCC 650, Prabha Tyagi Vs. Kamlesh
Devi : (2022) 8 SCC 90, Kamatchi Vs.
Laxmi Narayanan : (2022) 15 SCC 50.
The learned counsel has stated that in
Kamatchi vs. Laxmi Narayanan's case
(supra), the Apex Court has considered the
decision of learned Single Judge of Madras
High Court rendered in the case of Dr. P.
Pathamanathan and others vs. Tmt. V.
Monika and others : 2021 SCC Online
(Madras) 8731 and has approved the said
decision. According to the learned Counsel,
Hon'ble Supreme Court in Kamatchi's case
(supra), while dealing with the arguments
advanced
by
the
Counsel
for
the
respondents in that case, relied on the
judgment of Adalat Prasad vs. Ruplal
Jindal, reported in (2004) 7 SCC 338 and
held that the matter where the order of
issuance of process is issued in a complaint
on taking cognizance, stands on a different
footing and cannot be compared with the
proceeding under Section 12 of the D.V.
Act because the scope of notice under
Section 12 of the D.V. 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. Hon'ble Apex Court, by relying
upon the decision in the case of Adalat
Prasad's case (supra), has held that
considering the nature of the proceedings
under the D.V. Act, the same cannot be
challenged under Section 482 of the
Cr.P.C. Thus, his submission is that a
Magistrate exercising jurisdiction under the
D.V. Act is not a Criminal Court within the
meaning of Section 6 of the Cr.P.C.
Moreso, in the instant case, the Chief
Judicial Magistrate, while exercising under
Section 12 of the D.V. Act, only directed
the Protection Officer to inquire into the
matter and submit its report and in response
thereof, the Protection Officer had issued
notice to the opposite parties arrayed in the
complaint including the applicant herein,
but instead of giving reply to the notice of
the Protection Officer, the applicant had
filed application seeking to delete her name
from the array of the opposite parties in the
complaint.
According
to
the
learned
Counsel, as the Chief Judicial Magistrate
under the D.V. Act was not a Criminal
Court and the Chief Judicial Magistrate had
528 INDIAN LAW REPORTS ALLAHABAD SERIES
not issued any notice or summon the
opposite parties of the complaint and the
applicant is only aggrieved by the notice
issued to her by the Protection Officer, the
instant petition/application filed under
Section 482 Cr.P.C. is not maintainable to
quash the proceedings of the complaint/
application filed under Section 12 of the
D.V. Act.

12. Per contra, Shri Shishir Pradhan,
learned Counsel representing the applicant
has submitted that in Kamatchi's case, the
issue involved was with regard to the
limitation for filing the proceeding under
Section 12 of the D.V. Act in view of
section 468 of the Code of Criminal
Procedure, 1973. According to learned
Counsel, Kamatchi's case (supra), does not
deal with the issue of maintainability of the
application under Section 482 of Cr.P.C.
for quashing the proceeding filed under
Section 12 of the D.V. Act,. The
observations made by the Hon'ble Supreme
Court in paragraph 30 of the decision in
Kamatchi's case cannot be relied upon to
substantiate the argument that Hon'ble
Supreme Court has held that the proceeding
under Section 482 of the Cr.P.C., seeking
relief of quashing of the D.V. Act
proceeding, is not maintainable. Thus, it
has been submitted that the argument
advanced on behalf of complainants/
opposite parties No. 2 and 3 on the point of
maintainability of the present petition
should not be entertained.

13. Drawing attention of this Court to
Section 28 of the D.V. Act, learned
Counsel has submitted that the provisions
of Code of Criminal Procedure, 1973 are
made applicable to the proceedings under
the D.V. Act and, therefore, application
under Section 482 of Cr.P.C. cannot be
excluded.
According
to
the
learned
Counsel, main relief claimed by the
complainant in the application filed under
Section 12 of the D.V. Act was against her
husband, who is opposite party no.1 in the
complaint and the applicant being the
sister-in-law of the complainant has no
concern with the relief as claimed in the
complaint and as such, the name of the
applicant ought to be deleted from the array
of the parties in the complaint filed by the
complainant under Section 12 of the D.V.
Act, however, the learned trial Court has
erroneously rejected the application of the
applicant in this regard by means of the
impugned order.

14. To strengthen his submission,
learned Counsel for the applicant has
placed reliance upon the judgment of the
Hon'ble Supreme Court in Preeti Gupta
and another Vs. State of Jharkhand and
another (Criminal Appeal No. 1512 of
2010, decided on 13.08.2010), State of
Haryana and Bhajan Lal and others :
1992 Supp. (1) SCC 335 and the judgment
of the Hon'ble Andhra Pradesh High Court
rendered in the case of Mohammad
Maqeenuddin Ahmed
Vs. State
of
Andhra Pradesh and another : 2007CriLJ
3361.

D.
Analysis
of
the
aforesaid
Preliminary Objection

15. In view of the rival submissions
on the point of maintainability of the
present proceedings under Section 482
Cr.P.C., this Court has gone through the
record
and
proceedings
and
more
particularly the judgments relied upon by
the learned Counsel for the parties.

16. Much emphasis has been laid by
the learned Counsel for the opposite parties
no. 2 and 3 on the decision of Hon'ble
7 All. Smt. Suman Mishra Vs. State of U.P. & Ors.
529
Supreme Court in Kamatchi's case (supra)
in support of the contention that application
under Section 482 of Cr.P.C. is not
maintainable for quashing the proceeding
filed under Section 12 of the D.V. Act. On
the other hand, learned Counsel for the
applicant submits that the said decision of
Hon'ble
Supreme
Court
was
mainly
concerned with the point of limitation for
the purpose of filing application and not on
the
point
of
maintainability
of
the
proceedings under Section 482 of Cr.P.C.

17. Before considering the Judgment
of
the
Hon'ble
Supreme
Court
in
Kamatchi's case, it would be profitable to
note that a Full Bench of Madras High
Court in Arul Daniel v. Suganya : 2022
SCC OnLine Mad 5435 has relying on the
decision of Hon'ble Supreme Court in
Kamatchi's case (supra) has observed that
the proceeding under Section 482 of the
Cr.P.C. for quashing the proceeding under
Section 12 of the D.V. Act is not
maintainable and the remedy available to
such a party would be a statutory appeal
before the Sessions Court under Section 29
of the D.V. Act. Pertinently, the Hon'ble
Supreme Court in Kamatchi's case has
considered and approved the decision of a
learned Single Judge of Madras High Court
in Dr. P. Pathmanathan Vs. V. Monica :
2021 SCC OnLine Mad 8731. Therefore,
this Court deems it apt that before
proceeding to appreciate the submissions
made
by
the
parties,
it
would
be
appropriate to consider the decision of
learned Single Bench of Madras High
Court in Dr. P. Pathmanathan's case
(supra).

18. In Dr. P. Pathmanathan's case
(supra), a batch of cases related to the
jurisdiction of the High Court to quash a
complaint under Section 12 of the D.V. Act
in exercise of its inherent power under
Section 482 of the Code of Criminal
Procedure Code, 1973 was engaging the
attention of the learned Single Judge of the
Madras High Court, wherein the scheme of
the provisions of the D.V. Act was
considered. The learned Single Judge
relying on various precedents of the
Hon'ble Supreme Court as well as the High
Court, gave a slew of observation and
directions in that batch of cases, which
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 ex-parte
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
530 INDIAN LAW REPORTS ALLAHABAD SERIES
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 ex-parte.

(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 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 Code of Civil Procedure, 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
7 All. Smt. Suman Mishra Vs. State of U.P. & Ors.
531
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, 1888 11 ILR All 267).

(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."

19. Having noted the judgment passed
by the Hon'ble Madras High Court in Dr.
P. Pathmanathan's case (supra), it would be
necessary to consider the main question
involved before Hon'ble Supreme Court in
Kamatchi's case (supra). In Kamatchi's case
(supra), the respondents/(husband and inlaws) had challenged the proceeding
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 the father-in-law
and sister-in-law under Section 482 of
Cr.P.C. was allowed. However, with regard
to the application filed by the husband,
although the Hon'ble Madras High Court
had
rejected
the
contention
of
the
respondent/husband on merits, 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
532 INDIAN LAW REPORTS ALLAHABAD SERIES
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 is not provided for
filing application under Section 12 of the
D.V. Act and the limitation provided under
Section 468 of the Cr.P.C. would be
applicable only for initiation of criminal
prosecution under Sections 31 and 33 of the
D.V. 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 Dr. P. Pathmanathan's case (supra).
Learned
Counsel
representing
the
respondent/husband
relied
upon
the
decision in the case of Sarah Mathew vs.
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's
case (supra). Hon'ble Supreme Court in
Kamatchi's case has reproduced the said
written submission in paragraph 10. Said
paragraph 10 of the judgment in Kamatchi's
case needs to be extracted, which reads as
under :-

"11. In the written submissions, it
is also submitted that: -

"This Hon'ble Court in Adalat
Prasad v. Rooplal Jindal 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 Dr. P.
Pathamanathan's
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 of Cr.P.C
for quashing the proceedings filed under
Section 12 of the D.V. Act. In order to
meet this argument advanced on behalf of
the appellant/wife relying upon the decision
in Dr. P. Pathmanathan's case, learned
Counsel for the respondent/ husband before
Hon'ble Supreme Court relied upon the
decision in Adalat Prasad's 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 of the Cr.P.C.
Negating the argument of the husband, the
Hon'ble Supreme Court made the relevant
observations in paragraphs 27 to 30, which
are being extracted as herein below:

"28. 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 Dr. P.Padmanathan &
Ors. as under:

"19. In the first instance, it is,
therefore, necessary to examine the areas
where the D.V. Act or the D.V. Rules have
specifically set out the procedure thereby
excluding the operation of Cr.P.C. 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 D.V. Act and the
D.V. Rules is not the same as a "complaint"
7 All. Smt. Suman Mishra Vs. State of U.P. & Ors.
533
under Cr.P.C. 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)
of the Cr.P.C. 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) of the Cr.P.C, 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 D.V.
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) of Cr.P.C, given to a
Magistrate and not to an application under
Section 12 of the Act."

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
2.08.2018, there appears to be a period of
almost 10 years after 16.09.2008, 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. 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 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 paragraph 19
of Dr. P. Pathmanathan's case has been
considered by the Hon'ble Supreme Court
in Kamatchi's case and after considering
the same, it was held by the Hon'ble
Supreme Court that an application under
Section 12 of the D.V. Act cannot be
equated with the lodging of complaint or
534 INDIAN LAW REPORTS ALLAHABAD SERIES
initiation of the prosecution under the Code
of Criminal Procedure, 1973. It was also
held by the Hon'ble Supreme Court that the
decision in the case of Adalat Prasad
(supra) would not come to any rescue, so as
to justify the argument to invoke Section
482 Cr.P.C. in DV Act proceeding when a
notice is issued under Section 12 of the DV
Act. It was also specifically held that
Adalat Prasad's case would be applicable
when a Magistrate takes cognizance of the
offense in terms of Section 190 (1) (a) of
the Code of Criminal Procedure, 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 D.V.
Act stands on different footing and
therefore, the decision in Adalat Prasad's
case would not get attracted at the stage
when notice is issued under Section 12 of
the Act by the concerned Magistrate.

22. This Court is also in humble
agreement with the said analogy drawn by
the Hon'ble Supreme Court, more so,
Sections 28 and 29 of the DV Act provides
as under :-

"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)...

29. Appeal.-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 or the respondent, as the
case may be, whichever is later."

23. In terms of Section 28 of the DV
Act, proceedings under Sections 12 to 23 of
the DV Act would be governed by
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,
7 All. Smt. Suman Mishra Vs. State of U.P. & Ors.
535
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."

24. In the instant application, there is
no dispute to the fact that the opposite
parties no. 2 and 3 had filed an application
under Section 12 of the D.V. Act against
the applicant and other persons. The Chief
Judicial Magistrate, after going through the
contents of the said application, gave
directions to register the said complaint as
miscellaneous case and also called for a
report from the Protection Officer. In
compliance thereof, the Protection Officer,
in order to get the inquiry being conducted,
issued notice to the applicant, however,
instead of replying to the said notice,
applicant has filed an application before the
Chief Judicial Magistrate seeking to quash
the said proceedings instituted against her
under Section 12 of the D.V. Act, which
was
rejected
by
the
Chief
Judicial
Magistrate by the impugned order and the
same was confirmed by the Additional
Sessions Judge by means of the impugned
order. As has been held by the learned
Single Judge of the Madras High Court, the
issuance of notice by the Chief Judicial
Magistrate to the Protection officer or for
that matter a notice having been issued by
the Protection officer to the appellant is not
a summon under Section 61 of the Code of
Criminal Procedure, 1973, but rather is to
be construed as a notice as set out in Form
VII appended to the D.V Rules, 2006. In
fact, the Hon'ble Supreme Court in
Kamatchi's case has held that the scope of
notice under section 12 of the Act is to call
for a response from the respondents in
terms of
the statute,
so that
after
considering rival submission, appropriate
order can be issued.

25.