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2024 DIGILAW 2423 (ALL)

Devendra Agarwal v. State of U. P.

2024-11-27

ARUN KUMAR SINGH DESHWAL

body2024
JUDGMENT : Arun Kumar Singh Deshwal, J. 1. In all the connected applications either the proceedings under the DOMESTIC VIOLENCE ACT , 2005 (hereinafter referred to as "D.V. Act, 2005") or the orders passed therein are challenged or prayer is made to expedite the proceeding under the D.V. Act, 2005. 2. During the hearing Sri Pankaj Saxena, learned A.G.A., has raised a preliminary objection that in view of the judgement of coordinate Bench of this Court in the case of Smt. Suman Mishra vs. State of U.P. and others; Application u/s 482 No. 6975 of 2013 , the application filed under Section 482 Cr.P.C. is not maintainable against the proceeding or orders passed under the D.V. Act, 2005. Therefore, a common question was framed with the consent of all the learned counsel appearing for the parties to determine whether in view of the judgement of the coordinate Bench in the case of Suman Mishra (supra), an application filed under Section 482 Cr.P.C. is not maintainable against the proceeding or order passed under the D.V. Act, 2005. The matter was heard at great length and judgement was reserved on 23.10.2024. Submission of learned counsel for the applicants 3. Km. Preete, learned counsel for the applicants in Application u/s 482 No. 18994 of 2024 addressed the Court in support of the maintainability of the application filed under Section 482 Cr.P.C. against the proceeding of the D.V. Act, 2005. 4. First submission of Km. Preete, learned counsel for the applicants, is that in the case of Suman Mishra (supra), the coordinate Bench has heavily relied upon the judgement of Kamatchi vs. Laxmi Narayanan; (2022) 15 SCC 50 as well as the Full Bench judgement of Madras High Court in Arul Daniel vs. Suganya; 2022 SCC OnLine Mad 5435 which was itself based on the judgement of Kamatchi (supra), though in the judgement of Kamatchi (supra ) the issue of maintainability of application u/s 482 Cr.P.C. against the proceeding under the D.V. Act, 2005 was not before the Court and the only issue before the Apex Court was whether the period of limitation for taking cognizance as prescribed under Section 468 Cr.P.C. is applicable in the proceeding of the D.V. Act, 2005. 5. It is further submitted by Km. 5. It is further submitted by Km. Preete that while delivering the judgement in Kamatchi (supra), the Apex Court itself ignored the three Judge Bench judgment of the Apex Court in Satish Chander Ahuja vs. Sneha Ahuja; (2021) 1 SCC 414 in which the Apex Court observed that the proceeding under the D.V. Act, 2005 is akin to the proceeding under Section 125 Cr.P.C. as well as proceeding under Section 145 Cr.P.C. and the proceeding under the D.V. Act, 2005 is the proceeding which is to be governed by the Cr.P.C. In support of her contention, Km. Preete also relied upon paragraphs No. 112, 113, 114, 130, 131, 136 of Satish Chander Ahuja (supra). It is further submitted by Km. Preete that the Cr.P.C. has not been specifically excluded by any provision of the D.V. Act, 2005 and even Section 36 of the D.V. Act, 2005 provides that provisions of this Act is in addition to, and not in derogation of provisions of the Cr.P.C. 6. Km. Preete also relied upon a single Bench judgement of the Karnataka High Court in A. Ramesh Babu and others vs. Smt. Dharani S.; Criminal Petition No. 3578 of 2022 in which it is observed that the order passed under the D.V. Act, 2005 can be challenged through an application under Section 482 Cr.P.C. It is further submitted by Km. Preete that the coordinate Bench of this Court, while passing the judgement in Suman Mishra (supra), failed to take into account the full Bench judgement of this Court dated 27.10.2016 in the case of Dinesh Kumar Yadav vs. State of U.P. and another; Criminal Revision No. 582 of 2016 wherein it is observed that the order passed in an appeal under Section 29 of the D.V. Act, 2005 can be challenged by way of revision under Section 397 Cr.P.C. Therefore, the application under Section 482 Cr.P.C. is maintainable against the order passed in the proceeding under the D.V. Act, 2005 and the judgement of Suman Mishra (supra) is per incuriam, hence it has no binding force. 7. 7. Sri Shrey Sharma, learned counsel for the applicant in Application u/s 482 No. 24818 of 2024 also submitted that as per Rule 6(5) of the Protection of Women from the DOMESTIC VIOLENCE RULES , 2006 (hereinafter referred to as "D.V. Rules, 2006") proceeding under the D.V. Act, 2005 will be akin to the proceeding under Section 125 Cr.P.C. which is though civil in nature, the procedure of the same is summary trial, as per the provision of Cr.P.C. It is also submitted that the Full Bench of the Bombay High Court in Nandkishor Pralhad Vyawahare vs. Sau. Mangala; 2018 SCC OnLine Bom 923 , also observed that the provision of Cr.P.C. would apply even at the initial stage of the proceeding of the D.V. Act, 2005. Therefore, an application under Section 482 Cr.P.C. would be maintainable against the proceeding of the D.V. Act, 2005 and the judgement of Suman Mishra (supra) is per incuriam being ignorance of statutory provisions of D.V. Act, 2005 and Rule 6(5) of the D.V. Rules, 2006. 8. Sri Ashish Jaiswal, learned counsel for the applicants in Applications u/s 482 No. 27893 of 2024, as well as 29106 of 2024, has also vehemently contended that though the relief granted under the D.V. Act, 2005 is civil in nature, the proceeding of the D.V. Act, 2005 is governed by the Cr.P.C. in view of Section 28 of the D.V. Act, 2005, therefore, judgement of Suman Mishra (supra) is per incuriam and having no force of law. Submission of learned counsel for the opposite parties 9. Sri Pankaj Saxena, learned A.G.A. for the State, advanced his argument very fairly in support of and against the issue involved. He submitted that the proceeding under the D.V. Act, 2005 is conducted as per the provision of the Cr.P.C. and an application under Section 482 Cr.P.C. is maintainable to prevent the abuse of process of any court. As per Section 27 of the D.V. Act, 2005, the court of Judicial Magistrate of Ist class will have the jurisdiction to decide the cases under the D.V. Act, 2005 and Section 2(i) of the D.V. Act, 2005 further provides that "Magistrate" means the Judicial Magistrate of first class, exercising jurisdiction under the Cr.P.C. 10. Section 6 of the Cr.P.C. provides the definition of "criminal court" and the same also includes the Judicial Magistrate of first class. Section 6 of the Cr.P.C. provides the definition of "criminal court" and the same also includes the Judicial Magistrate of first class. Therefore, the Court that exercises its jurisdiction for deciding the proceeding under the D.V. Act, 2005 is the criminal court and any abuse of process of that court will be amenable to Section 482 Cr.P.C. 11. It is further submitted by Sri Pankaj Saxena, learned A.G.A. that though the proceeding under the D.V. Act, 2005 is essentially a civil in nature and it gets converted into criminal proceeding for the violation of the order passed under Section 18 of the D.V. Act, 2005. It is further submitted that the word used in Section 12 of the D.V. Act, 2005 is "application" which is akin to the application filed under Section 125 Cr.P.C. and proceeding under Section 12 of the D.V. Act, 2005 as well as Section 125 Cr.P.C. are summary and civil in nature and all the proceedings under Section 125 Cr.P.C. are amenable to Section 482 Cr.P.C. and breach of any order, passed under the D.V. Act, 2005 as well as under Section 125 Cr.P.C., attracts criminal action. It is also submitted by learned A.G.A. that in the proceeding under Section 12 of the D.V. Act, 2005 warrant cannot be issued and on service of notice upon the respondent, the proceeding can proceed ex parte against him if he does not appear and a warrant can be issued for ensuring presence of the accused only when the orders, passed under the D.V. Act, 2005, has been violated. 12. It is further submitted by Sri Pankaj Saxena that in the case of S. Vijikumari vs. Mowneshwarachari C.; Criminal Appeal No. 3989 of 2024 the Apex Court entertained the petition against the order passed in criminal revision filed against the order of criminal appeal under Section 29 of the D.V. Act, 2005. Reliance was placed by learned A.G.A. on paragraph No. 5 of S. Vijikumari (supra). It is also submitted by learned A.G.A. that the full Bench decision of the Bombay High Court passed in Nandkishor Pralhad Vyawahare (supra) in which it is held that application under Section 482 Cr.P.C. is maintainable against proceeding under the D.V. Act, 2005 has been referred to a larger Bench in the case of Linsen Lewis Thomanna and others vs. Lina Linsen Thomanna; Criminal Application No. 928 of 2024 13. Learned A.G.A. also submitted that the Apex Court in the case of Kunapareddy v. Kunapareddy Swarna Kumari; (2016) 11 SCC 774 has observed in paragraphs No. 12 and 13 that the proceeding under the D.V. Act, 2005 is civil in nature and only on violation of the order passed under Section 12 of the D.V. Act, 2005, a criminal proceeding is initiated against the violator. 14. It is lastly submitted by Sri Pankaj Saxena, learned A.G.A., that though in Suman Mishra (supra) case the coordinate Bench ignored some of the provisions of the D.V. Act, 2005, Rule 6(5) as well as some of the observations of Satish Chander Ahuja (supra) case, but that is not sufficient to say that judgement of Suman Mishra (supra) is per incuriam. 15. Sri Rajeev Kr. Singh, learned A.G.A. has also submitted that the single Bench of this Court in the case of Amardeep Sonkar vs. State of U.P. and another; Application u/s 482 No. 8732 of 2024 has also observed that the procedure under the D.V. Act, 2005 is a civil proceeding, therefore, an application under Section 482 Cr.P.C. is not maintainable against the proceeding under Section 12 of the D.V. Act, 2005. 16. Before proceeding to consider the rival submissions of learned counsel for the parties, it would be appropriate to mention the statement of objects and reasons of the D.V. Act, 2005. Statement of Objects and Reasons 17. Domestic violence is undoubtedly a human rights issue and a serious deterrent to development. The Vienna Accord of 1994, the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (Cedaw), in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family 18. The D.V. Act, 2005 was enacted in response to the obligations under the Convention on Elimination of All Forms of Discrimination Against Women to which India had become a signatory in 1983. The object of the legislature is to provide women with civil remedies against the acts of domestic violence. The D.V. Act, 2005 was enacted in response to the obligations under the Convention on Elimination of All Forms of Discrimination Against Women to which India had become a signatory in 1983. The object of the legislature is to provide women with civil remedies against the acts of domestic violence. Therefore, from the statement of objects and reasons, the basic purpose of domestic violence is as follows:- "The purpose to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India to provide for a remedy under the civil law, which is intended to protect the women from being victims of domestic violence and to prevent occurrence of the domestic violence in the society." 19. Before considering the submission of learned counsel for the parties in detail, it would be appropriate to mention that learned counsel for the applicants have submitted that the judgement of Suman Mishra (supra) is per incuriam being ignorant of the judgement of three judge Bench of the Apex Court in the case of Satish Chander Ahuja (supra) as well as full Bench judgement of this Court in the case of Dinesh Kumar Yadav (supra) Therefore, it is necessary to discuss the relevant part of Suman Mishra (supra) . While deciding the case of Suman Mishra (supra) , Hon'ble Mr. Justice Om Prakash Shukla mainly relied upon the judgement of the Apex Court in Kamatchi (supra) as well as full Bench judgement of the Madras High Court in Arul Daniel (supra) which affirmed the single Bench judgement of the Madras High Court in the case of P. Pathmanathan vs. V. Monika; 2021 SCC OnLine Mad. 8731 . The full Bench in Arul Daniel (supra) relied upon the judgement of Kamatchi (supra) . Paragraph No. 31 of Suman Mishra (supra) is quoted as under:- " (31) Keeping in mind the totality of the facts and circumstances and the aforesaid decisions of the Hon’ble Supreme Court as well as the Hon’ble Madras High Court, this Court is of the considered view that the application made under Section 482 of Cr.P.C. challenging the proceeding under Section 12 of the D.V. Act is not maintainable." 20. Therefore, in the Suman Mishra (supra) , the coordinate Bench of this Court held that application u/s 482 Cr.P.C., challenging the proceeding under Section 12 of the D.V. Act, 2005 is not maintainable. Therefore, in the Suman Mishra (supra) , the coordinate Bench of this Court held that application u/s 482 Cr.P.C., challenging the proceeding under Section 12 of the D.V. Act, 2005 is not maintainable. Consideration of submissions of the parties 21. Km. Preete, learned counsel for the applicants, submits that in the judgement of the Apex Court in Kamatchi (supra) there was no issue regarding the maintainability of an application under Section 482 Cr.P.C. The only question was whether the limitation prescribed for taking cognizance as per Section 468 Cr.P.C. is applicable in the proceeding of D.V. Act, 2005, but the full Bench of the Madras High Court in Arul Daniel (supra) incorrectly interpreted the judgement of the Kamatchi (supra) and erroneously held that the application under Section 482 Cr.P.C. is not maintainable against the proceeding of the D.V. Act, 2005 and for this reason the judgement of the coordinate Bench of this Court in Suman Mishra (supra) is not correct. Paragraphs No. 19, 27, 28, 30 of Kamatchi (supra) are being quoted as under:- " 19. Let us now consider the applicability of these principles to cases under the Act. The provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the Magistrate concerned. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act. 27 . Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act. 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 [P. Pathmanathan v. V. Monica, 2021 SCC OnLine Mad 8731] as under: “19. In the first instance, it is, therefore, necessary to examine the areas where the DV Act or the DV Rules have specifically set out the procedure thereby excluding the operation of CrPC as contemplated under Section 28 (1) of the Act. This takes us to the DV Rules. At the outset, it may be noticed that a “complaint” as contemplated under the DV Act and the DV Rules is not the same as a “complaint” under CrPC. A complaint under Rule 2(b) of the DV 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 DV Rules. A complaint under the DV Rules is made only to a Protection Officer as contemplated under Rule 4(1) of the DV 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. 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.” 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. 30 . Lastly, we deal with the submission based on the decision in Adalat Prasad [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 : 2004 SCC (Cri) 1927] . 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 the rival submissions, appropriate order can be issued. Thus, the matter stands on a different footing and the dictum in Adalat Prasad [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 : 2004 SCC (Cri) 1927] would not get attracted at a stage when a notice is issued under Section 12 of the Act." 22. It is also relevant to mention here that though in the judgement of the Apex Court in the case of Kamatchi (supra) part of the ratio of the single Bench of the Madras High Court in P. Pathmanathan (supra) was relied upon, but only to the extent whether an application under Section 12 of the D.V. Act, 2005 is a complaint as per Section 2(d) Cr.P.C. or simply an application. In Arul Daniel (supra) the full Bench of the Madras High Court, after considering the single Bench judgement in P. Pathmanathan (supra) as well as the judgement of the Apex Court in Kamatchi (supra) , observed that a Magistrate, while deciding the application under Section 12 of the D.V. Act, 2005, is not conducting any trial, but an enquiry as he does not take cognizance. Therefore, the Magistrate cannot be said to be a criminal court merely because he is following the provision of Cr.P.C. in deciding the application under Section 12 of the D.V. Act, 2005. Paragraphs No. 12, 13, 15, 21, 33, 36, 39 of Arul Daniel (supra) are quoted as under:- " 12 . It is apparent that Section 6 Cr.P.C. does not purport to define a Criminal Court, and merely enumerates the various classes of Criminal Courts under the Code, and also includes those Courts ‘constituted under any law’ other than the Code. For instance, the High Court of Madras, which is a creature of the Letters Patent read with the Indian High Courts Act, 1861, has also been classified as a Criminal Court. In the absence of any statutory definition of a “Criminal Court” in the Cr.P.C., the Court must look to the dictionary meaning of the term as was pointed out by the Supreme Court in CIT v. Raja Benoy Kumar Sahas Roy. 13. A Criminal Court is defined in the Black's Law Dictionary (9th Edition) to mean “A court with jurisdiction over criminal matters”. In an earlier edition of the same dictionary (3rd Edition), a Criminal Court was defined to mean “One where criminal cases are tried and determined, not one where civil cases are tried, or persons charged with criminal offenses are held for action by proper authority.” Therefore, an application under Section 12 of the D.V. Act, not being a proceeding involving the trial and determination of offences, does not, textually or contextually, fit in the aforesaid definition of a Criminal Court as it is not a criminal matter by any stretch of imagination. 15 . An application under Section 12 of the D.V. Act does not lead to the imposition of any sentence. In fact, as has been pointed out by the Supreme Court in Kamatchi, supra, at the stage of an application under Section 12 of the D.V. Act, there is no offence at all. 15 . An application under Section 12 of the D.V. Act does not lead to the imposition of any sentence. In fact, as has been pointed out by the Supreme Court in Kamatchi, supra, at the stage of an application under Section 12 of the D.V. Act, there is no offence at all. The enquiry under Section 12 may culminate with the granting of one or more of the civil reliefs set out in Sections 17-23, and does not lead to the imposition of any sentence. Nor can such a proceeding be characterised as one to prevent an apprehended breach of peace which is governed by Chapter VIII of the Code. Thus, by applying the aforesaid test, it is clear that the character of the proceeding before the Court in an application under Section 12 of the D.V. Act is civil and not criminal in nature. 21 . Looking at the scheme of Section 28 of the D.V. Act, we are of the opinion that the legislature was conscious of the fact that the Magistrate was required to grant civil reliefs under Sections 18 to 22 of the D.V. Act. A wholesale application of the provisions of the Cr.P.C. would have been unworkable and therefore, a special procedure was devised. In the Code of Criminal Procedure, there are five forms of trial for offences, to wit, Sessions Trial (Chapter XVIII), Magisterial Trial on a police report (Chapter XIX-A), Magisterial Trial otherwise than on a police report (Chapter XIX-B), Summons Trial (Chapter XX) and Summary Trial (Chapter XXI). In special penal enactments like the Prevention of Corruption Act, NDPS Act, etc., wherein, establishment of Special Courts for trial of the offences therein is envisaged, the statutes themselves prescribe the mode of inquiry and trial by telescoping one of the five modes stated above. However, under the D.V. Act, the legislature did not say so because of two-fold reasons : (a) The aforesaid five chapters would apply for trial of offences, whereas, Sections 18 to 22 of the D.V. Act are not penal provisions; (b) The Magistrate in D.V. proceedings is not conducting a trial, but, an enquiry. 33 . In view of the above, the power of the Magistrate to entertain and decide an application under Section 12 and grant one or more reliefs under the D.V. Act is an aspect of his jurisdiction. 33 . In view of the above, the power of the Magistrate to entertain and decide an application under Section 12 and grant one or more reliefs under the D.V. Act is an aspect of his jurisdiction. It is settled law that jurisdiction is an issue that belongs to the realm of substantive law. Procedural law, on the other hand, prescribes the mode and manner in which such jurisdiction is to be exercised. A character of the Court is an essential aspect of its substantive jurisdiction, and would depend on the nature or subject matter of the case before it. 36. From the aforesaid, it is evident that where the subject matter for decision before the Magistrate is purely a civil matter, he cannot be said to be exercising criminal jurisdiction or be dealing with a criminal matter. We are in respectful agreement with the aforesaid conclusion of the learned Chief Justice. We also find that this conclusion is fortified by the decision of the Supreme Court in S.A.L. Narayan Row v. Ishwarlal Bhagwandas, wherein, it was observed as under: “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 etc.” 39. We are, therefore, of the considered opinion that in a proceeding under Chapter IV of the D.V. Act, a Magistrate exercises civil jurisdiction to grant one or more civil reliefs under Sections 18-23 of that Act. Consequently, we affirm the view of N. Anand Venkatesh, J. in Pathmanathan, supra, that a Magistrate exercising jurisdiction under Section 12 of the D.V. Act, is not a Criminal Court for the purpose of Chapter IV of the said Act." 23. Km. Consequently, we affirm the view of N. Anand Venkatesh, J. in Pathmanathan, supra, that a Magistrate exercising jurisdiction under Section 12 of the D.V. Act, is not a Criminal Court for the purpose of Chapter IV of the said Act." 23. Km. Preete also relied upon the judgement of Satish Chander Ahuja (supra) on the ground the judgement in Satish Chander Ahuja (supra) is a three Judge Bench judgement but the coordinate Bench in Suman Mishra (supra) has failed to consider the ratio of Satish Chander Ahuja (supra) in which it is observed that the proceeding under the D.V. Act, 2005 can be challenged under Section 482 Cr.P.C. Paragraph No. 30 of Satish Chander Ahuja (supra) shows the questions which were before the Court for determination. The same is quoted as under:- " 30 . From the submissions of the learned counsel for the parties the following questions arise for determination in this appeal: 30.1. (1) Whether definition of “shared household” under Section 2(s) of the Protection of Women from DOMESTIC VIOLENCE ACT , 2005 (“the 2005 Act”) has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share? 30.2. (2) Whether judgment of this Court in S.R. Batra v. Taruna Batra [S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 : (2007) 2 SCC (Cri) 56] has not correctly interpreted the provision of Section 2(s) of the Protection of Women from DOMESTIC VIOLENCE ACT , 2005 and does not lay down a correct law? 30.3. (3) Whether the High Court has rightly come to the conclusion that suit filed by the appellant could not have been decreed under Order 12 Rule 6 CPC? 30.4. (4) Whether, when the defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the trial court could have decreed the suit of the plaintiff without deciding such claim of the defendant which was permissible to be decided as per Section 26 of the 2005 Act? 30.5. (5) Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2(q) of the 2005 Act? 30.6. 30.5. (5) Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2(q) of the 2005 Act? 30.6. (6) What is the meaning and extent of the expression “save in accordance with the procedure established by law” as occurring in Section 17(2) of the 2005 Act? 30.7. (7) Whether the husband of aggrieved party (defendant) is necessary party in the suit filed by the plaintiff against the defendant? 30.8. (8) What is the effect of orders passed under Section 19 of the 2005 Act whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction?" 24. From the perusal of paragraph No. 30 of Satish Chander Ahuja (supra), it is clear that there was no issue before the Court whether the proceeding before the Magistrate under the D.V. Act, 2005 is a civil proceeding or a criminal proceeding and there is no finding that the application under Section 482 Cr.P.C. is maintainable against the proceeding under the D.V. Act, 2005. Therefore, the judgement in Satish Chander Ahuja (supra) will not help the applicants and non consideration of this judgement by the coordinate Bench in Suman Mishra (supra) will not make it a case of per incuriam 25. Kr. Preete also relied upon the full Bench judgment of this Court in the case of Dinesh Kumar Yadav (supra) wherein this Court has observed that against the order passed under the D.V. Act, 2005, an appeal lies under Section 29 of the D.V. Act, 2005 and order of the appellate court can be challenged in criminal revision under Section 397 Cr.P.C. Paragraphs No. 14, 15, 16, 17, 18, 23, 23.1, 23.2 of Dinesh Kumar Yadav (supra) are being quoted as under:- "14. In view of the above discussion, we are of the considered view that the observations of the Supreme Court in Shalu Ojha's case (supra) as contained in paragraph 19 do not tie our hands in considering the questions referred to us as the same did not fall for consideration directly and substantially before the Supreme Court. 15. A perusal of the Act, 2005, specially Section 28 thereof, reveals that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 are to be governed by the provisions of Cr P C, save as otherwise provided in the said Act. 15. A perusal of the Act, 2005, specially Section 28 thereof, reveals that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 are to be governed by the provisions of Cr P C, save as otherwise provided in the said Act. The offences under Section 31 are also to be governed by the said Code. Sub-section (2) of Section 28 permits the Court to lay down its own procedure for disposal of an application under Section 12 or under Sub-section (2) of Section 23 notwithstanding anything in Sub-section (1) thereof. Sub-section (2) is not attracted in the present case. 16. Section 36 of the Act, 2005 says that "the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. 17. Section 29 of the Act, 2005 provides that "there shall lie an appeal to the Court of Sessions." Section 29 does not indicate the procedure applicable to such proceedings of an appeal. There is no provision in the Act, 2005 which permits the Court to lay down its own procedure for hearing an appeal under Section 29 . The Rule making power under Section 37, even if stretched to include the power to make rules of procedure for an appeal under Section 29 by virtue of the generality of the provision contained in Sub-section (1) thereof, none of the parties have placed before the Court any Rules prescribing such procedure for an appeal as aforesaid. 18. The question is what is the procedure prescribed for an appeal under Section 29 . After all there has to be some procedure in this regard. The answer lies in the use of the words "there shall lie an appeal to the Court of Sessions." The Court of Sessions referred therein is a Court of Sessions referred in Section 6 read with Sections 7 and 9 of the Cr P C, as the Act, 2005 does not define the said term. It is trite that whenever a remedy is provided before an already established Court, without saying anything more, the procedure ordinarily applicable to such a Court applies for the purposes of such remedy also. Reference may be made in this regard to the pronouncement of the Supreme Court in the case of National Sewing Thread Co. It is trite that whenever a remedy is provided before an already established Court, without saying anything more, the procedure ordinarily applicable to such a Court applies for the purposes of such remedy also. Reference may be made in this regard to the pronouncement of the Supreme Court in the case of National Sewing Thread Co. Ltd, Chidambaram (supra), wherein it was observed thus: "...The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co. Ltd. vs. Postmaster-General, (1913) AC 546 (A), in these terms:- "When a question is stated to be referred to an established court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches." The same view was expressed by Their Lordships of the Privy Council in - Adalkappa Chettiar vs. Chandresekhara Thevar, AIR 1948 PC 12 (B), wherein it was said: "Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal." The ratio contained in the said judgment, as quoted hereinabove, applies on all its fours to the present case before us. 23. 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. 23. 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. 23.1 Section 4 (2) Cr P C does not have any application to the present case. Since the Act, 2005 does not prescribe any special form of procedure either for the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 or for an appeal under Section 29 , therefore, Section 5 is also not attracted. 23.2 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." 26. Mr. Mr. Shrey Sharma, learned counsel for one of the applicants, has relied upon the full Bench judgement of Bombay High Court in the case of Nandkishor Pralhad Vyawahare (supra) in which the full Bench held that the proceeding under the D.V. Act, 2005 is governed as per the provision of Cr.P.C., therefore, power under Section 482 Cr.P.C. can be exercised by the High Court, not only to quash the proceeding but also to give effect to any order under the Code or prevent the abuse of process of the court or otherwise to secure the ends of justice. Therefore, the provision of Section 482 Cr.P.C. is very well applicable to the proceeding under Section 12 of the D.V. Act, 2005, not primarily at the instance of respondents (man) but at the instance of aggrieved person (woman) to give effect to any order or to prevent abuse of process of the court. The full Bench of the Bombay High Court also observed that the provision of Cr.P.C. would become applicable in the proceeding of the D.V. Act, 2005 even at the initial stage when the Magistrate applies his mind to the contents of the application and passes any judicial order, including issuance of notice. Paragraphs No. 58 and 59 of the judgement Nandkishor Pralhad Vyawahare (supra) is quoted as under:- "58. A plain reading of section 482 of CRIMINAL PROCEDURE CODE , which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice. This would mean that not only the respondent-man but also the aggrieved person-woman may feel like approaching the High Court to give effect to any order or to prevent abuse of the process of Court or to secure ends of justice. This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under section 12 of the D.V. Act. If this power is removed from section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated. 59. Now, one incidental question would arise as to from what stage the provisions of the CRIMINAL PROCEDURE CODE would become applicable and in our view, the answer could be found out from the provisions of sections 12 and 13 of the D.V. Act. A combined reading of these provisions shows that the commencement of the proceedings would take place the moment, the Magistrate applies his mind to the contents of the application and passes any judicial order including that of issuance of notice. Once, the proceeding commences, the procedure under section 28 of the D.V. Act, subject to the exceptions provided in the Act and the rules framed thereunder, would apply. In other words, save as otherwise provided in the D.V. Act and the rules framed thereunder and subject to the provisions of sub-section (2) of section 28, the provisions of the CRIMINAL PROCEDURE CODE shall govern the proceedings under sections 12 to 23 and also those relating to an offence under section 31 of the D.V. Act on their commencement." 27. So far as the contention of Sri Ashish Jaiswal, learned counsel for one of the applicants, that though the relief granted under the D.V. Act, 2005 is essentially civil in nature, the proceeding of D.V. Act, 2005 is governed by Cr.P.C. in view of Section 28 of the D.V. Act, 2005 is concerned, for that purpose Sections 28 and 36 of the D.V. Act, 2005 are relevant to be considered, hence mentioned 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). (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. 36. Act not in derogation of any other law.—The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force." 28. However, the main contention of Sri Pankaj Saxena, learned A.G.A., is that the Magistrate who exercises jurisdiction as per Section 27 of the D.V. Act, 2005 is a criminal court for the purpose of Section 482 Cr.P.C. Section 6 of Cr.P.C. defines "criminal court" which also includes Judicial Magistrate of first class. For this purpose Section 27 of the D.V. Act, 2005 as well as Section 6 Cr.P.C. are relevant to be mentioned as follows:- " Section 27 DOMESTIC VIOLENCE ACT . Jurisdiction.—(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which— (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made under this Act shall be enforceable throughout India. Section 6 Cr.P.C. . (2) Any order made under this Act shall be enforceable throughout India. Section 6 Cr.P.C. . Classes of Criminal Courts.—Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:— (i) Courts of Session; (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates." 29. As the main thrust of Sri Pankaj Saxena on the word used in Section 482 Cr.P.C. is "court" under Cr.P.C and for the purpose of Cr.P.C., the courts are designated as criminal courts. Section 482 Cr.P.C. is quoted as under:- "482. Saving of inherent powers of High Court.—Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 30. Sri Pankaj Saxena also relied upon the judgement of S. Vijikumari (supra) in which the Apex Court entertained the petition against the order passed in criminal revision by the High Court, in which order passed under Section 29 of the D.V. Act, 2005 was challenged. In the case of S. Vijikumari (supra) the Apex Court also observed that proceeding under the D.V. Act, 2005 is analogous to Section 125 & 127 Cr.P.C. Paragraphs No. 11, 12, 13, 15 of S. Vijikumari (supra) are being quoted as under:- "11. The Act is a piece of Civil Code which is applicable to every womanin India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship. 12. Section 25(2) of the Act contemplates an eventuality where an order passed under the Act can be altered, modified or revoked. Section 25(2) of the Act provides that the aggrieved person or the respondent, as defined under the Act, may approach the Magistrate by filing an application for alteration, modification or revocation of “any order” made under the Act. 12. Section 25(2) of the Act contemplates an eventuality where an order passed under the Act can be altered, modified or revoked. Section 25(2) of the Act provides that the aggrieved person or the respondent, as defined under the Act, may approach the Magistrate by filing an application for alteration, modification or revocation of “any order” made under the Act. Thus, the scope of Section 25(2) of the Act is broad enough to deal with all nature of orders passed under the Act, which may include orders of maintenance, residence, protection, etc. If any such application is filed before the Magistrate by any of the two parties, i.e., the aggrieved person or the respondent, then the Magistrate may, for reasons to be recorded in writing, pass an order as he may deem appropriate. Thus, an order passed under the Act remains in force till the time that order is either set aside in an appeal under Section 29 of the Act, or altered/modified/revoked in terms of Section 25(2) of the Act by the Magistrate. 13. However, the Magistrate while exercising his discretion under Section 25(2) of the Act has to be satisfied that a change in the circumstances has occurred, requiring to pass an order of alteration, modification or revocation. The phrase “a change in the circumstances” has not been defined under the Act. The said phrase was present under Section 489 of the now repealed Code of Criminal Procedure, 1898, as well as under Section 127(1) of the Code of Criminal Procedure, 1973 (CrPC, 1973), now repealed, as is also found under Section 146(1) of the present Bharatiya Nagarik Suraksha Sanhita, 2023 (BNNS, 2023), but the legislature (Parliament) has intentionally not provided a definition for the same in the repealed Codes or the present Sanhita. Thus, the Magistrate has to adjudge the change in the circumstances based on the material put forth by the parties in a case and having regard to the circumstances of the said case. Thus, the Magistrate has to adjudge the change in the circumstances based on the material put forth by the parties in a case and having regard to the circumstances of the said case. A change in the circumstances under the Act may be of either a pecuniary nature, such as a change in the income of the respondent or an aggrieved person or it could be a change in other circumstances of the party paying or receiving the allowance, which would justify an increase or decrease of the maintenance amount ordered by the Magistrate to pay or any other necessary change in the relief granted by the Magistrate including a revocation of the earlier order. The phrasing of the provision is wide enough to cover factors like the cost of living, income of the parties, etc. Further, a change in the circumstances need not just be of the respondent but also of the aggrieved person. For example, a change in the financial circumstances of the husband may be a vital criterion for alteration of maintenance but may also include other circumstantial changes in the husband or wife’s life which may have taken place since the time maintenance was first ordered. 15. The position is analogous to Sections 125 and 127 of the CrPC, 1973, wherein the legislature under Section 125 (2) of the CrPC, 1973 had given power to the Magistrate to grant maintenance from the date of the application, but did not give any such power under Section 127 of the CrPC, 1973. Therefore, under the Act, the order of alteration or modification or revocation could operate from the date of the said application being filed or as ordered by the Magistrate under Section 25(2) of the Act. Thus, the applicant cannot seek its retrospective applicability, so as to seek a refund of the amount already paid as per the original order." 31. In Kunapareddy (supra), the Apex Court observed that the nature of relief under the D.V. Act, 2005 is civil, but on violation of said orders, proceeding under the D.V. Act, 2005 assumes the character of criminality. The relevant extract of paragraphs No. 12, 13, 14, 15 Kunapareddy (supra) are quoted as under:- "12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. The relevant extract of paragraphs No. 12, 13, 14, 15 Kunapareddy (supra) are quoted as under:- "12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. 13. Procedure for obtaining order of reliefs is stipulated in Chapter IV of the DV Act which comprises Sections 12 to 29. Under Section 12 an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person. The Magistrate is empowered, under Section 18, to pass protection order. Section 19 of the DV Act authorises the Magistrate to pass residence order which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or directing the respondent to remove himself from the shared household or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides, etc. Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act includes giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. Custody can be decided by the Magistrate which was granted under Section 21 of the DV Act. Custody can be decided by the Magistrate which was granted under Section 21 of the DV Act. Section 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are of civil nature. Section 23 vests the Magistrate with the power to grant interim ex parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are of civil nature. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence. 14. In the aforesaid scenario, merely because Section 28 of the DV Act provides for that the proceedings under some of the provisions including Sections 18 and 20 are essentially of civil nature. We may take some aid and assistance from the nature of the proceedings filed under Section 125 of the Code. Under the said provision as well, a woman and children can claim maintenance. At the same time these proceedings are treated essentially as of civil nature. 15. In Capt. Ramesh Chander Kaushal v. Veena Kaushal [Capt. Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 : 1978 SCC (Cri) 508], Krishna Iyer, J., dealing with the interpretation of Section 125 of the Code, observed as follows: “9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause — the cause of the derelicts.”" 32. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause — the cause of the derelicts.”" 32. Learned A.G.A. has also relied upon the judgement of this Court in Amardeep Sonkar (supra) wherein it is observed that the proceeding under Section 12 of the D.V. Act, 2005 is a civil proceeding and issuance of notice under Section 12 of the D.V. Act, 2005 is not a summon, but simply a notice and also the fact that merely the Magistrate is exercising power to adjudicate and enforce civil rights will not make its character as criminal proceeding. Paragraphs No. 19, 21, 22 are being quoted as under:- "19. Therefore, in view of the observation of the Apex Court in the case of S.A.L. Narayan Row (supra), it is clear that judging the character of the proceeding depends upon the nature of the violated right and relief claimed and not the Court which is adjudicating such a proceeding. Merely because the Magistrate is called upon to adjudicate and enforce civil rights, an application under Chapter IV of the DOMESTIC VIOLENCE ACT will not be sufficient to presume that it is of criminal character. A Magistrate not exercising function or determining cases of criminal character cannot be said to be a criminal court. The purpose of sending a notice to the respondent through protection officer u/s 12 of the DOMESTIC VIOLENCE ACT instead of sending a summons as per Section 61 of Cr.P.C. is to grant the opportunity of hearing to the respondent before passing any order and not to accuse him of any offence. Even otherwise, none of the provisions providing relief to the aggrieved person is in the nature of the offence. It is only when the protection or interim protection order was breached only then the criminal proceeding commences u/s 31 & 32 of the DOMESTIC VIOLENCE ACT . The word "complaint" is defined u/s 2(d) of Cr.P.C. and the same is quoted as under:- "2(d). It is only when the protection or interim protection order was breached only then the criminal proceeding commences u/s 31 & 32 of the DOMESTIC VIOLENCE ACT . The word "complaint" is defined u/s 2(d) of Cr.P.C. and the same is quoted as under:- "2(d). "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." 21. From the above analysis, it is clear that Application u/s 12 of the DOMESTIC VIOLENCE ACT is not a complaint as defined u/s 2(d) of Cr.P.C., the procedure for the cognizance set out u/s 190(1)(a) of Cr.P.C. followed by the procedure set out in Chapter XV of Cr.P.C. for taking cognizance will have no application to the proceeding under the DOMESTIC VIOLENCE ACT . Therefore, Section 190(1)(a) of Cr.P.C. and the procedure mentioned in Chapter XV of Cr.P.C. will apply only in the cases of complaints u/s 2(d) Cr.P.C., filed before a Magistrate and not an application u/s 12 of the DOMESTIC VIOLENCE ACT . Therefore, the stage of the issuing process contemplated u/s 204 Cr.P.C. has no application to the proceeding u/s 12 of the DOMESTIC VIOLENCE ACT as the Court, while dealing with the Application u/s 12 of the DOMESTIC VIOLENCE ACT , is not taking cognizance of any offence but simply dealing with an application for civil relief. Consequently, the procedure of Sections 200 & 202 Cr.P.C. will not be applicable for an application u/s 12 of the DOMESTIC VIOLENCE ACT . 22. Consequently, the procedure of Sections 200 & 202 Cr.P.C. will not be applicable for an application u/s 12 of the DOMESTIC VIOLENCE ACT . 22. After the aforementioned discussion, this Court comes to the following conclusion:- (i) Nature of proceeding u/s 12 of the DOMESTIC VIOLENCE ACT is a civil proceeding, and Application u/s 12 of the DOMESTIC VIOLENCE ACT is not the complaint as mentioned u/s 2(d) Cr.P.C., therefore, proceeding under the DOMESTIC VIOLENCE ACT as well as order passed u/s 18, 19, 20, 21, 22 of the DOMESTIC VIOLENCE ACT are civil in nature except the violation of protection order which is punishable u/s 31 of the DOMESTIC VIOLENCE ACT ; (ii) Issuance of notice u/s 12 of the DOMESTIC VIOLENCE ACT is not a summon as mentioned u/s 61 of Cr.P.C., and while issuing such notice, the Magistrate does not take cognizance for any offence as in the case of complaint defined u/s 2(d) Cr.P.C. Therefore, procedure of Sections 200 & 202 Cr.P.C. does not apply in the proceeding u/s 12 the DOMESTIC VIOLENCE ACT . " Analysis 33. After considering the submission of the parties, the sole question arises whether the judgement of the coordinate Bench in Suman Mishra (supra) is per incuriam being contrary to the full Bench of this Court in Dinesh Kumar Yadav (supra) and it has incorrectly relied upon the judgement of the Apex Court in Kamatchi (supra) though there was no issue regarding the maintainability of application u/s 482 Cr.P.C. against the proceeding of D.V. Act, 2005. Before proceeding further, it would be profitable to refer Section 482 Cr.P.C. (Section 528 B.N.S.S.), which is quoted as under:- " 482. Saving of inherent powers of High Court. —Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 34. From the perusal of Section 482 Cr.P.C., it appears that the inherent power of the High Court can be exercised for the following purposes:- (i) to give effect to any order passed/issued under the Cr.P.C.; (ii) to prevent abuse of the process of court and; (iii) to secure the ends of justice 35. From the perusal of Section 482 Cr.P.C., it appears that the inherent power of the High Court can be exercised for the following purposes:- (i) to give effect to any order passed/issued under the Cr.P.C.; (ii) to prevent abuse of the process of court and; (iii) to secure the ends of justice 35. The orders passed under Sections 12, 17, 18, 19, 20, 21, 22, 23, 29 of the D.V. Act, 2005 cannot be said to be passed under the Cr.P.C. as specific provision has been provided under the D.V. Act, 2005 to pass such orders which are essentially civil in nature except the order under Section 31 & 33 of the D.V. Act, 2005. The issue regarding the nature of proceeding under the D.V. Act, 2005 is no more res integra. 36. The Apex Court in the case of Kunapareddy (supra) has already observed that the order and relief, granted under the D.V. Act, 2005, are of a civil nature. However, a breach of protection order, granted under Section 18 of the D.V. Act, 2005, is punishable under Section 31 of the D.V. Act, 2005. Similarly, failure in the discharge of duty as per protection order on the part of the protection officer is also punishable under Section 33 of the D.V. Act, 2005. Therefore, orders as well as the proceeding, under Section 31 & 33 of the D.V. Act, 2005, would become absolutely criminal in nature, but these orders are still in D.V. Act, 2005 and not in Cr.P.C. However, as per Rule 6(5) of the D.V. Rules, 2006, the order passed under Section 12 of the D.V. Act, 2005 would be enforced in the manner prescribed under Section 125 Cr.P.C. Rule 6(5) of the D.V. Rules, 2006 is quoted as under:- " Section 6(5) in The Protection of Women From DOMESTIC VIOLENCE RULES , 2006 (5)The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)." 37. From the perusal of Rule 6(5) of the D.V. Rules, 2006, it is clear that orders passed under Section 12 of the D.V. Act, 2005 would be enforced as per the procedure under Section 125 (3) Cr.P.C., which provides issuance of a warrant for levying the amount, due in the manner provided for levying the fines and may sentence such persons up to one month. Section 125 (3) Cr.P.C. is quoted as under:- " 125(3). If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months 4[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him." 38. The procedure for issuing a warrant for levying fines is provided under Section 421 Cr.P.C. Similarly, for the execution of a sentence as provided under Section 125 (3) Cr.P.C., the court may issue a warrant under Section 418 Cr.P.C. (corresponding to Section 458 B.N.S.S.). 39. The procedure for issuing a warrant for levying fines is provided under Section 421 Cr.P.C. Similarly, for the execution of a sentence as provided under Section 125 (3) Cr.P.C., the court may issue a warrant under Section 418 Cr.P.C. (corresponding to Section 458 B.N.S.S.). 39. From the above analysis, it is clear that for the execution of orders passed under Section 12 of the D.V. Act, 2005, procedure of Cr.P.C. (now B.N.S.S.) is adopted, therefore, all processes for the execution of orders passed under D.V. Act, 2005, are issued under the Cr.P.C. Therefore, these processes/orders which includes a warrant for levying fines as well as a warrant of arrest would come under the first part of Section 482 Cr.P.C., therefore, are amenable to Section 482 Cr.P.C. (now Section 528 B.N.S.) 40. So far as the second part of Section 482 Cr.P.C. is concerned that is regarding to prevent the process of abuse of court. For that purpose word "court" is necessary to be explained. 41. It is not in dispute that the word "court" mentioned in the second part of Section 482 Cr.P.C. is "criminal court". Criminal court has been defined under Section 6 of Cr.P.C. which includes courts of Session as well as Judicial Magistrates. As per Section 27 of the D.V. Act, 2005, the Judicial Magistrate of first class or Metropolitan Magistrate is competent to pass protection orders as well as other orders under Section 12 of the D.V. Act, 2005 and also try the offences under this Act. Similarly, appeals against orders passed under Section 12 of the D.V. Act, 2005 is heard by session courts under Section 29 of the D.V. Act, 2005. Though proceeding as well as relief under the D.V. Act, 2005 except the violation of protection orders are civil in nature, Section 27 and 28 of the D.V. Act, 2005 itself authorize the criminal courts like Judicial Magistrates as well as court of session to conduct the proceeding under the D.V. Act, 2005 as per the provision of the Cr.P.C. Though Section 28 (2) of the D.V. Act, 2005 authorizes the criminal court to lay down its own procedure, but this procedure is in addition to the procedure, prescribed under Cr.P.C. for speedy and effective disposal of applications filed under Section 12 of the D.V. Act, 2005. Such power cannot be construed in a way that confers more power than intended by the Parliament so as to exclude the provision of Cr.P.C. forever. This reasoning also finds support from the Full Bench judgement of Bombay High Court in the case of Nandkishor Pralhad Vyawahare (supra) . The Full Bench of the Bombay High Court also observed that the High Court can exercise its power under Section 482 Cr.P.C. in respect of the proceeding under the D.V. Act, 2005. 42. The full Bench of this Court in the case of Dinesh Kumar Yadav (supra) also observed in paragraph No. 23 that the "session court" mentioned in Section 29 of the D.V. Act, 2005 is a criminal court and permitted to file criminal revision against the appellate order, before the High Court under Section 397 Cr.P.C. However in Suman Mishra (supra), the Court has heavily relied upon the judgement of Arul Daniel (supra) in which the definition of "criminal court" has been taken from Black's Law Dictionary, ignoring the fact that the legislature is competent to deviate from the general meaning of "criminal court", mentioned in the Black's Law Dictionary and in the case of D.V. Act, 2005, the legislature knowingly designated criminal court to grant relief under the D.V. Act, 2005 by following the procedure of Cr.P.C. for the purpose of expeditious disposal of the applications filed under Section 12 of the D.V. Act, 2005. 43. Even otherwise, the ratio of Arul Daniel (supra) case is against the ratio of full Bench judgement of the Allahabad High Court in Dinesh Kumar Yadav (supra) which is binding on this Court and the ratio of full Bench judgement in Arul Daniel (supra) has persuasive value so far as this Court is concerned. Therefore, the courts under the D.V. Act, 2005 whether the Judicial Magistrates or the courts of session are criminal courts and fall within the second part of Section 482 Cr.P.C. Therefore, to prevent the abuse of the process of courts, exercising power under the D.V. Act, 2005, an application under Section 482 Cr.P.C. is very well maintainable. 44. Therefore, the courts under the D.V. Act, 2005 whether the Judicial Magistrates or the courts of session are criminal courts and fall within the second part of Section 482 Cr.P.C. Therefore, to prevent the abuse of the process of courts, exercising power under the D.V. Act, 2005, an application under Section 482 Cr.P.C. is very well maintainable. 44. In Suman Mishra (supra) case, the judgement of the Apex Court passed in Kamatchi (supra) was relied upon, though in the case of Kamatchi (supra) the Apex Court nowhere observed that the courts, exercising power under the D.V. Act, 2005, are not criminal courts because the issue in the case of Kamatchi (supra) was whether the limitation prescribed for taking cognizance under Section 468 Cr.P.C. is applicable on the application filed under Section 12 D.V. Act, 2005 and the Hon'ble Court rightly observed that while issuing notice under Section 12 of the D.V. Act, 2005, the court does not take cognizance like in a complaint because the application filed under Section 12 of the D.V. Act, 2005 is not a complaint. Even the Apex Court, while relying upon the single Bench judgement of the Madras High Court in the case of P. Pathmanathan (supra), has relied only on that much part which is relating to the nature of application under Section 12 D.V. Act, 2005 not with regard to the nature of the court, exercising power under the D.V. Act, 2005. However, the coordinate Bench in Suman Mishra (supra) failed to consider this aspect and also ignored the ratio of full Bench judgement of this Court in Dinesh Kumar Yadav (supra) that the court, exercising jurisdiction under the D.V. Act, 2005, is a criminal court. Therefore, the High Court to secure the ends of justice can interfere in appropriate cases; in proceedings as well as orders passed by the courts under the D.V. Act, 2005. 45. However, it would be appropriate to mention that issuance of notice under Section 12 of the D.V. Act, 2005 is not like issuance of summon in complaint case. Therefore, aforesaid notice can be recalled by the court on filing the objection by opposite party No.2 as observed by the Apex Court in the case of Kamatchi (supra) as well as by this Court in the case of Amardeep Sonkar (supra) . Therefore, aforesaid notice can be recalled by the court on filing the objection by opposite party No.2 as observed by the Apex Court in the case of Kamatchi (supra) as well as by this Court in the case of Amardeep Sonkar (supra) . Therefore, normally the Court should not interfere in exercise of power under Section 482 Cr.P.C. against the issuance of notice in the proceeding under Section 12 of the D.V. Act, 2005, otherwise it will defeat the basic object of the D.V. Act, 2005. 46. From the above analysis, it is clear that application under Section 482 Cr.P.C. (now Section 528 B.N.S.S.) is maintainable against the orders and proceedings passed under the D.V. Act, 2005 to prevent the abuse of process of court and also to secure the ends of justice. Conclusion (i) The Court of Judicial Magistrate as mentioned in Section 27 of the D.V. Act, 2005 and the Court of Session as mentioned in Section 28 of the D.V. Act, 2005 are criminal courts. (ii) Application under Section 482 Cr.P.C. (now Section 528 B.N.S.S.) is maintainable against the proceeding or orders passed under the D.V. Act, 2005 in appropriate cases to prevent abuse of the process of court and to secure the ends of justice. (iii) Judgement of Suman Mishra (supra) is per incuriam as the same was against the ratio of full Bench judgement of Allahabad High Court in the case of Dinesh Kumar Yadav (supra) 47. In view of the above, all the above questions are decided in favour of the applicants and this Court will proceed to hear the bunch of cases on merit.