Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 291 (UTT)

Ritu Kaushal v. Jaswant Kaur

2023-05-03

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The present petitioner, who is a plaintiff, in a Suit No. 2 of 2020, Ritu Kaushal vs. Jaswant Kaur and Others. The suit, thus, instituted by the plaintiff/petitioner, was for the grant of decree of permanent injunction in relation to the property more appropriately described in the body of plaint itself, but since, the issue involved in the present writ petition being entirely distinct, the detailed scrutiny of the factual backdrop of the case is not required to be gone into by this Court. 2. The short controversy, which is being attempted to be argued by the learned counsel for the petitioner, is that as to whether the evidence, which has been led in the proceedings under section 12 of the Domestic Violence Act, they could be borrowed to be read in the civil proceedings. The said attempt made by the learned counsel for the petitioner was foiled by the trial court’s order as rendered on 16.03.2023, by virtue of which, there was a denial by the court of Civil Judge (Senior Division) Nainital, to permit the plaintiff to lead the evidence, which was adduced in the proceedings under the Domestic Violence Act holding thereof that the evidence laid in the criminal proceedings cannot be read while deciding the civil suit. 3. In support of his contentions, the learned counsel for the petitioner has referred to a judgment as rendered by the Hon’ble Apex Court and reported in 2021 SCC Online Mad. 8731, Dr. P. Pathmanathan and Others vs. Tmt. V. Monica and Another, wherein, particularly, the learned counsel for the petitioner has made a reference to the paragraph nos.32 and 75, and ultimately, the analysis made by the aforesaid judgment, in its paragraph no. 29, in fact the logic, which has been drawn by the Hon’ble Apex Court for the purposes of leading the evidence, which has been adduced in the criminal proceedings while deciding the civil litigation. If paragraph no. 30, is taken into consideration in fact it was not laying down any law, as such, but rather the ultimate conclusion, which has been drawn by the Hon’ble Apex Court. The same is extracted hereunder: “29. If paragraph no. 30, is taken into consideration in fact it was not laying down any law, as such, but rather the ultimate conclusion, which has been drawn by the Hon’ble Apex Court. The same is extracted hereunder: “29. The distinction between a “civil” and “criminal” proceeding was explained by a Constitution Bench of the Hon’ble Supreme Court in S.A.L. Narayan Row vs. Ishwarlal Bhagwandas, AIR 1965 SC 1818 , wherein it was observed thus: “The expression “civil proceeding” is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed.” 30. The Supreme Court eventually formulated the following test for examining the character of a proceeding before a Court or authority: “The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status.” 4. In the said judgment rendered by the three Judges Bench of the Hon’ble Apex Court, it has been observed that the evidence, which has been adduced in the proceedings of the Domestic Violence Act, the same could be utilized to be read in evidence in the civil court in order to determine the issue in the civil proceedings on the basis of the evidence, which has been laid by the parties in the domestic violence case. 5. Learned counsel for the petitioner, has yet again referred to a judgment rendered by the coordinate Bench of the Karnataka High Court as rendered in Criminal Revision No. 730 of 2019, Sri Puttaraju vs. Smt. Shivakumari and particularly, he has made a reference to paragraph no. 21, which is extracted hereunder: “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.” 6. It has been observed in the said judgment that the proceedings under the Domestic Violence Act, are neither purely criminal or civil and as such the evidences which are led in the proceedings under the Domestic Violence Act, it has been argued that it can be read in a civil proceedings. 7. In both these cases, on which, the reliance has been made by the learned counsel for the petitioner is that, in fact, either the Hon’ble Apex Court or the coordinate Bench of the Karnataka High Court, have not considered the judgment of the Constitution Bench of the Hon’ble Apex Court as reported in Iqbal Singh Marwah and Another vs. Meenakshi Marwah and Another, 2005 (4) SCC 370 where the Court in its paragraph no. 32, while deriving its conclusion on the basis of the earlier judgment reported in M.S. Sheriff and Another vs. State of Madras, AIR 1954 SC 397 has observed, that the civil proceedings and the criminal proceedings are not at a common pedestal, because the gravity of the evidence, which is required to be adduced in the two nature of the litigation are entirely different because the civil case could be decided on an aspect of the preponderance, whereas, in the criminal proceedings, the evidence, which is required to be led has had to be established beyond a reasonable doubt. Relevant paragraph no. 32 is extracted hereunder: “32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code, the following observations made by a Constitution Bench in M.S. Sheriff vs. State of Madras give a complete answer to the problem posed: “(15) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. (16) Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.” 8. Since the said principles and the distinction drawn by the Constitution Bench about the vitalities of the evidence, to be laid in the civil or a criminal case, has been considered by the Constitution Bench of the Hon’ble Apex Court, the relevant paragraph of which, has been extracted above, it would rendered the earlier judgments relied by the learned counsel for the applicants as to be perincurium. 9. Since both the judgments have not considered the impact of the Constitution Bench Judgment of the Hon’ble Apex Court, thereafter, even in Dr. P. Pathmanathan and Others vs. Tmt. V. Monica and Another, 2021 SCC Online 8731 the Madras High Court has observed in its paragraph no. 46, 47 and 48, that the proceedings under the Domestic Violence Act, are of criminal nature, and accordingly, as per the observation made in paragraph no. P. Pathmanathan and Others vs. Tmt. V. Monica and Another, 2021 SCC Online 8731 the Madras High Court has observed in its paragraph no. 46, 47 and 48, that the proceedings under the Domestic Violence Act, are of criminal nature, and accordingly, as per the observation made in paragraph no. 7, it has referred to that the relief claimed under Chapter 4 of the Act, which are civil in nature for the enforcement of the civil rights, they cannot be borrowed to be read in the criminal proceedings or vice versa. Relevant paragraph nos.46, 47 and 48 are extracted hereunder: “46. In fact, the litmus test as to whether a proceeding is civil or criminal in nature has been authoritatively settled by a three judge bench of the Hon’ble Supreme Court in Ram Kishan Fauji vs. State of Haryana, (2017) 5 SCC 533 . The Hon’ble Supreme Court reiterated the test laid down in S.A.L. Narayan Row (cited supra), and opined as under: “31. The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as criminal proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of (i) sentence and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peace and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed.” 47. The Hon’ble Supreme Court eventually concluded that it is conceptually fallacious to determine the nature of the proceeding with reference to the nature of the Court, since the litmus test is the nature of the proceeding, nothing more nothing less. Applying the aforesaid test, it is beyond a pale of controversy that all of the reliefs claimed under Chapter IV of the Act are civil in nature for the enforcement of civil rights, as was held by the Supreme Court in Kunapareddy (cited supra) and a proceeding before the Magistrate would, therefore, partake the character of a civil and not a criminal proceeding. 48. 48. As the proceedings before a Magistrate exercising jurisdiction under Chapter IV is not a criminal proceeding before a Criminal Court, the next question is whether a petition under Section 482 of the Code would lie to quash an application under Section 12 of the D.V. Act. It is settled law that a petition under Section 482, Cr.P.C. would lie only against an order of a criminal court. In State of West Bengal vs. Sujit Kumar Rana, (2004) 4 SCC 129 , the Supreme Court has opined as under: “33. From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court amounts to abuse of the process of court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a court; which in the context of the Code of Criminal Procedure would mean “a criminal court” or whence a power is exercised by the court under the Code of Criminal Procedure.” 10. In paragraph no. 48, of the aforesaid judgment, it has been observed that the Magistrate exercising the jurisdiction under Chapter 4 of the criminal proceedings, it will be absolutely a criminal court and as such the basis, of that inferences, is on the logic, which has been assigned by the Hon’ble Apex Court in the earlier judgment of 2004 (2) SCC 129, wherein, it has been observed that the order which has been passed by the criminal court, it is exclusively for the purposes of drawing a definite conclusion, in relation of the criminal proceedings under the Domestic Violence Act, and the proceedings under the Domestic Violence Act, since has been classified as to be a criminal proceedings, its evidence cannot be read in the civil proceedings even in the light of the judgment of the Constitution Bench, as referred to hereinabove. 11. In that eventuality, this writ petition lacks merit and the same is accordingly dismissed.