JUDGMENT 1. The 2nd respondent in the Criminal Petition is the wife of the 1st petitioner/respondent. The 2nd respondent herein filed Domestic Violence Case No.7 of 2014 that she was subjected to domestic violence by all the respondents in D.V.C case and prayed to return Rs.10, 00, 000.00 Rs.10, 00, 000.00 and 50 tulas of gold considered to be Sridhana given as dowry to the petitioners/respondents; to allow her into house of the 1 st petitioner/respondent on par with her husband; to pay an amount of Rs.6000.00 towards rent; not to commit further domestic violence; and also directed to pay compensation of Rs.10, 000.00 per month for unreunionment of life of the 2nd respondent. 2. On receiving notices from the Court, the respondents in Domestic Violence Case, have made their appearance and later they have remained exparte. Therefore, the learned Judicial Magistrate of First Class, Special Mobile Court at Anantapuramu, was constrained to allow the D.V.C. No.7/2014, as prayed for by an order dtd. 27/12/2016. 3. Assailing the said order in D.V.C. No.7 of 2014, dtd. 27/12/2016, the respondents in the DVC who are petitioners herein have filed Criminal Appeal No.98 of 2018 on the file of the Family Court-cum-Additional District Judge, Anantapuramu, under Sec. 29 of The Protection of Women From Domestic Violence Act (for short 'the Act'). Learned Judge by an order dtd. 14/11/2018 has dismissed the appeal as the 1st respondent failed to comply with the order of payment of maintenance and also failed to comply with the directions of this Hon'ble High Court divulging that the petitioners/respondents are not entitled to play hide and seek game and they are bound to obey the orders of the Court before questioning the legality of the orders passed by the trial Court. 4. The instant Criminal Petition is filed to quash the proceedings vide order dtd. 27/12/2016 in D.V.C. No.7/2014 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Anantapuramu, on the ground that the trial Court has passed the order without giving sufficient opportunity and the lower appellate Court has failed to consider the contentions of the petitioners/respondents and in DVC, the Magistrate has exceeded his jurisdiction without any substantial material or proof. The petitioners 2 to 6 herein nothing to do with the affairs between the 1st petitioner in the Criminal Petition and the 2nd respondent, since they are residing separately.
The petitioners 2 to 6 herein nothing to do with the affairs between the 1st petitioner in the Criminal Petition and the 2nd respondent, since they are residing separately. On the aforesaid grounds it is implored to quash the proceedings in DVC No.7 of 2014. 5. As seen from the order in DVC No.7 of 2014, the petitioners herein who are respondents therein have remained exparte. The lower appellate Court conferred by the statute under Sec. 29 of the Act, has dismissed the appeal on the ground that the petitioners/respondents herein have not complied with the directions of the trial Court. 6. Against an order passed by the Court of Sessions under Sec. 29 of the Act, whether a revision under Sec. 397/401 of the Code of Criminal Procedure, 1973 is maintainable before the High Court? 7. There is no provision in the Act as to what action can be taken against an appellate order passed by the Sessions Court and there is no specific bar to prefer revision against such an order keeping in view of the provision of Sub-Sec. (2) of Sec. 28 of the Act. 8. As against this, the very question was examined by a Full Bench of the Andhra Pradesh High Court in Public Prosecutor (A.P.) v. L. Ramayya: 1974 SCC OnLine AP 180 = (1975) Criminal Law Journal 144). held in the following which is verbatim extracted here under: From what was discussed the following 'conclusions would follow: (1) Where, by statute, matters are referred to the determination of a Court with no further provision, the necessary implication is that the Court will determine the matters as a court. Its jurisdiction is enlarged with all the incidents of such jurisdiction. (2) Where a person is indicated not by name but by official designation the question always arises whether the intention was to single him out as a persona designata, i.e. as an individual, the designation being merely his further description. The question whether such a person is a persona designata or not depends upon the intention to be gathered from the words used, nature of the functions to be performed and object and purpose to be achieved.
The question whether such a person is a persona designata or not depends upon the intention to be gathered from the words used, nature of the functions to be performed and object and purpose to be achieved. (3) When a reference is made to an officer presiding over a Court and not the Court itself it does not necessarily follow that such a person is intended to act as a "persona designata" and not as a Court because it is quite an ordinary practice for a reference to be made to the officer presiding over the Court even when the intention is to refer to the Court. The mention of the officer presiding over the court instead of the Court does not by itself imply that he is intended to act as a persona designata and not as a Court. (4) When a statute confers authority on a judicial officer one should be slow in saying that the Legislature confers such authority on the said officer as a personal designata. (5) Where a judicial officer who presides over a Court is appointed to perform a function under any statute and he is intended by the statute to act not otherwise than in a judicial capacity, in the absence of any other indication to the contrary he cannot come within the expression "persona designata" and he acts as a Court only. (6) When a Judicial Authority, like an officer who presides over a Court, is appointed to perform a function, that is to judge and decide in accordance with law and nothing has been mentioned about the finality or otherwise of the decisions made by that authority, it is an indication that the authority is to act as a Court in which case only it is not necessary to mention whether they are final or not as all the incidents of exercising jurisdiction as a Court would necessarily follow. (7) Whether the authority functions as a persona designata or as a Court does not necessarily depend on the question whether it is acting against the decisions of designated persons or Tribunals or not. Statutes are full of instances where appeals or revisions to courts are provided even as against the decisions of designated persons and Tribunals, 9.
(7) Whether the authority functions as a persona designata or as a Court does not necessarily depend on the question whether it is acting against the decisions of designated persons or Tribunals or not. Statutes are full of instances where appeals or revisions to courts are provided even as against the decisions of designated persons and Tribunals, 9. The contention raised is that even if the District and Sessions Judge exercises the powers under Sec. 6-C of the Essential Commodities Act as a Court it cannot be said to be an inferior Criminal Court within the meaning of Sec. 435, Criminal Procedure Code. We do not think this question can detain vis for long. As already discussed above, if the District and Sessions Judge acts as a Court to hear appeals under Sec. 6-C it has necessarily to be as a Sessions Court as the confiscation proceedings are criminal in nature. If he acts as a Sessions Court certainly it would become an inferior criminal court with regard to the High Court within the meaning of Sec. 435, Criminal Procedure Code. Since it is not provided in the Act as to what would become of the orders passed in the appeals under Sec. 6-C the ordinary incidents of the procedure of the Sessions Court would attach to those orders. If that is the rule, there is no difficulty in holding that the order passed in appeal under Sec. 6-C of the Act by the Sessions Court would be liable to revision as provided under Sec. 435 and Sec. 439, Criminal Procedure Code. In (1913) AC 546, reference about which had already been made above, the rule was very succinctly stated in these terms: "When a question is stated to be referred to an established Court without more, it 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." 38. The same view was expressed by their Lordships of the Privy Council in Adalkapa Chettial v. Chandrasekhar Thavar (23) AIR 1948 P.C. P-12, wherein it was said.
The same view was expressed by their Lordships of the Privy Council in Adalkapa Chettial v. Chandrasekhar Thavar (23) AIR 1948 P.C. P-12, 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 authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal" 10. If it is held to be an inferior criminal court, whether a revision is maintainable under Sec. 435 (present 397 Crl.P.C.)or 439 (present 401 Crl.P.C.) Cr.P.C. against the order of the appellate authority under Sec. 6-C of the Essential Commodities Act in spite of the fact that such proceedings are not held under the Code of Criminal Procedure. (emphasis supplied) 11. Eventually held that an inferior criminal Court within the ambit of Sec. 435 (present (397 Crl.P.C.) of the Code and consequently a revision can be entertained by the High Court under Sec. 435 or under Sec. 439 (present 401 Crl.P.C.), Cr. P. C. When the inferior court is not persona designate. 12. A similar issue as in the present criminal petition under the Act before Allahabad High Court, the full Bench after considering myriad of judicial pronouncements and after considering the provisions of the Act in Dinesh Kumar Yadav (Vs) State of U.P. and Another, 2016 SCC OnLine All 3848. The reference was answered in the following: 13. 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 Sec. 6 read with Sec. 7 and 9 of the Cr P C, as the Act, 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 (1953 SCC Online 87), 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 v. Postmaster-General W.P. No: 7926 (MS) of 2015 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." 14. The same view was expressed by their Lordships of the Privy Council in Adalkappa Chettiar v. Chandresekhara Thevar (1978) 1 SCC 27 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." 15. Rendering a concurring judgment in ITI Ltd. v. Siemens Public Communications Networks Ltd (2002) 5 SCC 510 in the said case D.M. Dharmadhikari, J of the Supreme Court observed in paragraph 19 thereof thus: "...when a special Act on matters governed by that Act confers a jurisdiction on an established Court, as distinguished from a persona designata, without any words of limitation, then the ordinary incident of procedure of that Court including right of appeal or revision against its decision is attracted..." 16. A perusal of the Act, specially Sec. 28 thereof, reveals that all proceedings under Sec. 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 Sec. 31 are also to be governed by the said Code. Sub-sec.
A perusal of the Act, specially Sec. 28 thereof, reveals that all proceedings under Sec. 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 Sec. 31 are also to be governed by the said Code. Sub-sec. (2) of Sec. 28 permits the Court to lay down its own procedure for disposal of an application under Sec. 12 or under subsec. (2) of Sec. 23 notwithstanding anything in sub- Sec. (1) thereof. Sub-sec. (2) is not attracted in the present case. 17. Sec. 36 of the Act, 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. 18. Sec. 29 of the Act, provides that "there shall lie an appeal to the Court of Sessions." Sec. 29 does not indicate the procedure applicable to such proceedings of an appeal. There is no provision in the Act, which permits the Court to lay down its own procedure for hearing an appeal under Sec. 29. The Rule making power under Sec. 37, even if stretched to include the power to make rules of procedure for an appeal under Sec. 29 by virtue of the generality of the provision contained in sub-sec. (1) thereof, none of the parties have placed before the Court any Rules prescribing such procedure for an appeal as aforesaid. 19. The analogy of these judgments applies to the present case also for the reasons already mentioned herein above specially as a court of Sessions mentioned in Sec. 29 is not a persona designata but a Court established under the Code of Criminal Procedure, without saying anything more, and as there is nothing in the Act, 2005 excluding the applicability of Code of Criminal Procedure, therefore, the procedure followed before a court of Sessions which includes a Revision under Sec. 397/401 of the Code of Criminal Procedure against its orders, will be maintainable. (emphasis supplied) 20.
(emphasis supplied) 20. As per Sec. 5 of the Code of Criminal Procedure, 1973 nothing contained in this Code shall, in absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 21. In deed Sec. 28(1) of DVC Act postulates that the proceedings under the aforesaid provisions including Sec. 31 shall be governed by the Code of Criminal Procedure, 1973. Sec. 29 refers to an appeal before the court of Sessions if the normal procedure applies then revision lies under Sec. 397 r/w 401 under Code of criminal Procedure. "397. Calling for records to exercise of powers of revision.- -(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending and examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-sec. and of Sec. 398. (2) The powers of revision conferred by sub-sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this Sec. has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." 22. Under Sec. 397 of the Criminal Procedure Code the High Court may call for examination of the record before any inferior Court situate within its or his local jurisdiction for the purpose to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed.
Under Sec. 397 of the Criminal Procedure Code the High Court may call for examination of the record before any inferior Court situate within its or his local jurisdiction for the purpose to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed. The Court of Sessions referred to in Sec. 29 of the Act, 2005 is a Criminal Court inferior to the High Court and in the present case it is situated within its limits or local jurisdiction of this High Court 23. As seen from the Full Bench judgment of Andhra Pradesh High Court Legisetty Ramayya case and Judgment of Allahabad High Court (FB) in Dinesh Kumar case that both the judgments unequivocally held that that an inferior criminal Court within the ambit of Sec. 435 (present (397 Crl.P.C.) of the Code and consequently a revision can be entertained by the High Court under Sec. 435 or under Sec. 439 (present 401 Crl.P.C.), Cr.P.C. When the inferior court is not persona designate or special Act on matters governed by that Act confers a jurisdiction on an established Court. 24. This Court is also of the view that revision against the appellate order passed by the Sessions Court in a case dismissing the appeal under Sec. 29 of the Act, is maintainable. 25. As per the Full Bench judgments referred supra the criminal petition under Sec. 482 Criminal Procedure Code is not maintainable, hence the petitioner is at liberty to assail the order in Criminal Appeal No.98 of 2018 on the file of the Family Court-cum-Additional District Judge, Anantapuramu, by way of revision under Secs. 397 and 401 of the Criminal Procedure code in accordance with law. And it is needless to say Sec. 14 of the Limitation Act, 1963 is applicable to the petition, which assailing the order against DVC, which is impugned in the present Criminal Petition. 26. Accordingly, the Criminal Petition is dismissed. As a sequel, interlocutory applications, if any pending in this Criminal Petition shall stand closed.