The Allahabad High Court is vested with inherent powers under Section 528 of Bhartiya Nagarik Suraksha Sanhita to give effect to any order, or to prevent the abuse of process of any court, or otherwise to secure the ends of justice.
The short question that requires some discussion is whether the High Court can invoke its inherent jurisdiction under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) to quash proceedings initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
The above-noted question has been succinctly answered by the Hon’ble Apex Court in the recent judgment of Shaurabh Kumar Tripathi vs. Vidhi Rawal.
Application under Section 12 of the DV Act
Section 12 of the Protection of Women from Domestic Violence Act, 2005 is as follows:
“12. Application to 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: 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 sub-section (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.”
Hence, an application under Section 12 of the DV Act can be made by the aggrieved person, protection officer, or any other person on behalf of the aggrieved person seeking reliefs mentioned under the Chapter IV of the DV Act, which include Right to reside in a shared household, Protection Orders, Residence Orders, Monetary Reliefs, Custody Orders, or Compensation Orders.
Procedure under the DV Act
After the Application is made before the Magistrate as provided under Section 12 of the DV Act, the learned Magistrate is duty-bound to 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.
Section 13(1) provides that a notice of the date fixed in terms of Sub-section (4) of Section 12 shall be served on the respondent or any other person in the manner laid down therein. Rule 2 of the DV Rules, 2006 lays down the methods and means of service of notice issued under Section 13(1).
The Magistrate is also empowered to pass interim and ex parte orders as provided under Section 23 of the DV Act.
The proceedings of the DV Act are governed by the Criminal Procedure Code/ Bhartiya Nagarik Suraksha Sanhita. However, Section 28 of the DV Act empowers the Court to lay down its own procedure for the disposal of an application under Section 12 or Section 23(2) of the DV Act.
Section 28 of the DV Act, 2005 reads thus:
“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 sub-section (2) of Section 23.”
Hence, Section 28 provides overriding powers to the Magistrate vis-à-vis laying down the procedure, and hence, he is not bound by the procedure provided under the Criminal Procedure Code or the Bhartiya Nagarik Suraksha Sanhita.
Powers of High Court
In the case of Shaurabh Kumar Tripathi vs. Vidhi Rawal, the Hon’ble Apex Court has held that the proceedings under the DV Act may be quashed by the High Court in exercise of its powers under Section 528 BNSS or 482 CrPC. The relevant portion of the judgment is as follows:
“The second part of Section 482 saves the inherent power of the High Court to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Therefore, in a given case where a learned Magistrate is dealing with an application under Section 12(1), the High Court can exercise the power under the second part of Section 482 to prevent abuse of the process of any Court or to secure the ends of justice. Hence, the High Court can exercise jurisdiction under Section 482 of the CrPC to quash proceedings of an application under Section 12(1) or orders passed in accordance with Sections 18 to 23 of the DV Act, 2005.”
The Hon’ble Apex Court held the view that since proceedings under the DV Act are predominantly civil in nature, they are not liable to be quashed under Section 528 BNSS, as incorrect.
Grounds of exercising powers for quashing DV Act proceedings
The Allahabad High Court may quash the proceedings under the DV Act, if the grounds are found to be sufficient to conclude that the proceedings are a gross abuse of the process of the Court, or if it is necessary to quash the same to secure the ends of justice due to gross illegality.
In this regard, the Hon’ble Apex Court holds as follows:
“When it comes to exercise of power under Section 482 of the CrPC in relation to application under Section 12(1), the High Court has to keep in mind the fact that the DV Act, 2005 is a welfare legislation specially enacted to give justice to those women who suffer from domestic violence and for preventing acts of domestic violence. Therefore, while exercising jurisdiction under Section 482 of the CrPC for quashing proceedings under Section 12(1), the High Court should be very slow and circumspect. Interference can be made only when the case is clearly of gross illegality or gross abuse of the process of law. Generally, the High Court must adopt a hands-off approach while dealing with proceedings under Section 482 for quashing an application under Section 12(1). Unless the High Courts show restraint in the exercise of jurisdiction under Section 482 of the CrPC while dealing with a prayer for quashing the proceedings under the DV Act, 2005, the very object of enacting the DV Act, 2005, will be defeated.”