An application under Section 12 of the Domestic Violence Act is not barred by the limitations set out in Section 468 of the Criminal Procedure Code: Karnataka High Court
When the application under Section 12 of the DV Act is not covered under the term ‘offence’, section 468 of Cr. P.C is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is a misconception. The judgement was passed by the High Court of Karnataka in the case of Sri Puttaraju v. Smt.Shivakumari [Criminal Revision Petition No.730/2019] by Single Bench consisting of Hon’ble Justice K.S.Mudagal. A petition filed by Puttaraju challenging the order passed by the Additional Chief Judicial Magistrate, directing him to pay an amount of Rs 8,000 per month to his wife and children as maintenance and house rent. The husband challenged the order which directed him to deposit an amount of Rs 4,32,000. The court had directed the amount to be transferred to the magistrate court from where the wife could withdraw the same. Learned Counsel for the petitioner opposes the application on the ground that the petition was filed 10 years from the date of the alleged domestic incident, therefore the petition itself was not maintainable. Relying on Section 28 of the DV Act, learned Counsel for the petitioner submits that to file application under Section 12 of the DV Act, the Code of Criminal procedure is applicable. Therefore he submits that Section 468 of Cr.P.C. is applicable Learned Counsel for the respondent refutes the contention regarding limitation on the ground that Section 468 of Cr.P.C. applies only to the petition under Section 31 of the DV Act and not to the application under Section 12 of the DV Act filed for the reliefs under Sections 20 and 21 of the DV Act. The court opined that “Section 12 of the DV Act is only an enabling provision to initiate an enquiry to find out whether such act or omission is committed.” Finally, it concluded by saying “Section 31 of the DV Act makes it clear that the only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishably. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence.”
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL 2021 THE HON’BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL REVISION PETITION No.730 2019 SRI PUTTARAJU S O LATE MUDDAPPA AGED ABOUT 55 YEARS R AT SHIVAKOTE VILLAGE AND POST HESARAGHATTA HOBLI BANGALORE NORT TALUK 560 088 BY SRI RAJANNA L ADVOCATE) W O PUTTARAJU AGED ABOUT 48 YEARS R AT SHIVAKOTE VILLAGE AND POST HESARAGHATTA HOBLI BANGALORE NORT TALUK 560 088 BY SRI PATEEL G.S. ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 11.04.2016 PASSED BY THE II ADDITIONAL CHIEF JUDICIAL MAGISTRATE BENGALURU RURAL DISTRICT BENGALURU IN CRL.MISC.NO.206 2011 AND THE ORDER DATED 16.04.2019 PASSED BY THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE BENGALURU RURAL DISTRICT BENGALURU IN CRIMINAL APPEAL NO.19 2016. THIS CRIMINAL REVISION PETITION COMING ON FOR ORDERS THIS DAY THE COURT MADE THE FOLLOWING: ORDER ON I.A.No.1 2020 The respondent has filed the above application for release of Rs.4 32 000 deposited before the trial Court in her The petitioner and the respondent are husband and wife. The respondent filed Crl.Misc.No.206 2011 against the petitioner before the trial Court under Section 12 of the Protection of Women from Domestic Violence Act 2005 seeking monetary relief and custody order as contemplated under Sections 20 and 21 of the DV Act on the ground that she was subjected to domestic violence in the hands of the petitioner. The trial Court by order dated 11.04.2016 partly allowed the said petition awarded Rs.8 000 per month to the respondent and her children as maintenance and house rent. The petitioner was also restrained from taking away the children from her custody and committing domestic violence. The petitioner challenged the said order of the trial Court before IX Additional District & Sessions Judge Bengaluru Rural District Bengaluru in Crl.A.No.19 2016. The First Appellate Court granted interim stay subject to the petitioner depositing Rs.4 32 000 before the First Appellate Court towards arrears of maintenance. Accordingly the petitioner deposited the said amount before First Appellate Ultimately on hearing the parties the First Appellate Court by the impugned order dismissed the appeal and confirmed the order of the trial Court. Further the First Appellate Court directed to transmit the amount in deposit to the trial Court with a further direction to the trial Court to release the said amount to the respondent wife. Accordingly the said amount is transmitted to the trial Court and pending in Court deposit. The respondent has filed the above application seeking release of the said amount. Sri L.Rajanna learned Counsel for the petitioner opposes the application on the ground that the petition was filed 10 years from the date of the alleged domestic incident therefore the petition itself was not maintainable. In support of his contentions he relies upon the following judgments: Inderjit Singh Grewal v. State of Punjab & Anr.1 J.Srinivas vs. G.Dhanalakshmi2 iii) Gurudev & Anr. vs. Jayashree3 Sri G.S.Pateel learned Counsel for the respondent refutes the contention regarding limitation on the ground that Section 468 of Cr.P.C. is applicable only to the petition under Section 31 of the DV Act and not to the application under Section 12 of the DV Act filed for the reliefs under Sections 20 and 21 of the DV Act. In support of his contentions he relies upon the following judgments: Krishna Bhattacharjee v. Sarathi Choudhury4 Vikas and others v. Smt. Usha Rani & Anr.5 1 2012 Cri.L.J.309 2 Crl.P.No.2419 2009 DD 05.04.2013 3 Crl.P.No.11476 2013 DD 08.01.2014 42 SCC 705 5 Crl.R.No.3084 2016DD 17.04.2018 The relationship between the parties is not in dispute. The only question for consideration is for an application under Section 12 of the DV Act whether Section 468 of Cr.P.C. which prescribes the limitation is applicable 10. Relying on Section 28 of the DV Act learned Counsel for the petitioner submits that to file application under Section 12 of the DV Act the Code of Criminal procedure is applicable. Therefore he submits that Section 468 of Cr.P.C. is applicable. Section 28(1) of the DV Act relied upon by learned Counsel for the petitioner reads as follows: “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 1973of Cr.P.C which reads as follows: “468. Bar to taking cognizance after lapse of the period of limitation 1) Except as otherwise provided elsewhere in this Code no Court shall take cognizance of an offence of the category specified in sub section after the expiry of the period of limitation. 2) The period of limitation shall be— a) …. b) one year if the offence is punishable with imprisonment for a term not exceeding one year.” 12. Reading of Section 468 and 468(2)(b) of Cr.P.C. itself shows that the bar of limitation for taking cognizance is intertwined with an offence. Section 468 of Cr.P.C. comes into picture only if there is an offence. If there is no offence no limitation. 13. Then the question is whether the act alleged in the application under Section 12 of the DV Act itself constitutes an offence by the respondent. 7 14. Section 12(1) & of the DV Act which are relevant for our purpose read 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 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 1908or any other law for the time 8 being in force be executable for the balance amount if any left after such set off. Thus in Section 12 of the DV Act if domestic violence is not called or treated as an offence it speaks of Court granting relief and not of conviction and sentence. 15. So far this petition Sections 20(d) and 21 of the DV Act are relevant. They read as follows: “20. Monetary reliefs.—While disposing of an application under sub sectionof section 12 the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to— a) …. b) …. c) …. d)the maintenance for the aggrieved person as well as her children if any including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973 or any other law for the time being in force. anything contained in any other law for the time being in force the Magistrate may at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify if necessary the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children the Magistrate shall refuse to allow such visit.” Therefore even Sections 20 and 21 of the DV Act do not treat the domestic violence as offence. 16. To attract Section 468 of Cr.P.C essentially the Act alleged must be an offence. Under the DV Act the offence is not defined as defined in Section 40 of IPC. Therefore we have to revert to the General Clauses Act 1897. Section 3(38) of the General Clauses Act defines the offences as follows: “3(38). “Offence” shall mean any act or omission made punishable by any law for the time being in force.” 17. Perusal of the above provision makes it clear that to call an act as offence act or omission must be made punishable under law. As already pointed out under Sections 12 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed. reads as follows: 18. Section 31 of the DV Act is Penalty Clause which “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 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 Codeor any other provision of that Code or the Dowry Prohibition Act 1961 as the case may be if the facts disclose the commission of an offence under those provisions.” 19. Perusal of Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. As held by Punjab High Court in Vikas’s case referred to supra Section 12 of the DV Act is only enabling provision. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence. 20. When the application under Section 12 of the DV Act is not covered under the term ‘offence’ Section 468 of Cr.P.C. is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception. 21. One has to bear in mind that the proceedings under the DV Act are neither purely criminal nor civil proceedings. The very object of the DV Act as could be seen from the preamble is to protect the women against violence of any kind occurring within the family. If at all the Act intended to make each and every Act of domestic violence offences then Parliament would not have legislated separate law i.e. IPC dealing with offences against Women like 498A 306 304B or offences against body in Chapter XVI of IPC. The purpose of the DV Act is to protect and save the family. In Inderjit Singh Grewal’s case referred to supra it was held that there was already decree of judicial separation. In that context in para 25 of the judgment it was held as follows: “25. In view of the above we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus the process amounts to abuse of the process of the court. Undoubtedly for quashing a complaint the court has to take its contents on its face value and in case the same discloses an offence the court generally does not interfere with the same. However in the backdrop of the factual matrix of this case permitting the court to proceed with the complaint would be travesty of justice. Thus interest of justice warrants quashing of the same.” Emphasis Supplied) 23. Reading of the above paragraph shows that the Hon ble Supreme Court also held that generally it does not interfere with such cases and in the backdrop of the factual matrix of the case continuation of the proceedings amounts to abuse of the process of the Court. 24. Distinguishing Inderjit Singh Grewal’s case the Hon ble Supreme Court in subsequent judgment in Krishna Bhattacharjee’s case referred to supra held that the observation regarding domestic relationship in Inderjit Singh Grewal’s case were based on the facts and circumstances of the said case and they are not of general 14 25. Further in para 32 of the judgment in Krishna Bhattacharjee’s case referred to supra the Hon ble Supreme Court held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts the term ‘continuing offence’ therefore does not get time barred. In the judgments of the Hon’ble Supreme Court referred to above the interplay of Section 3(38) of the General Clauses Act Section 31 of the DV Act and Section 468 of Cr.P.C. had not fallen for consideration. In view of the later judgment of the Hon ble Supreme Court in Krishna Bhattacharjee’s case referred to supra the judgments of this Court in Srinivas’s case and Gurudev’s case cannot be followed. Therefore this Court does not find any merit in the contention that the petition was time barred. Under the circumstances the respondent is entitled for withdrawal of the amount. The application is allowed. The trial Court shall release Rs.4 32 000 to the respondent herein subject to the result of this petition. At this stage learned Counsel for the petitioner submits that trial Court awarded Rs.4 32 000 as maintenance to the respondent including her children who are major. Therefore he submits only her share shall be released to her. First of all the trial Court has not made any such apportionment. Secondly it was not the case of the petitioner husband that children and mother have any conflicting interest nor he examined any children before the trial Court to state so. Therefore this Court finds the said submission as vexatious and rejected accordingly. Sd 