High Court Punjab-Haryana High Court

Smt.Gita vs Smt.Raj Bala & Others on 26 November, 2008

Punjab-Haryana High Court
Smt.Gita vs Smt.Raj Bala & Others on 26 November, 2008
Criminal Misc.-M No.47145 of 2007                              :1 :

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                 CHANDIGARH


                    DATE OF DECISION: November 26, 2008



Smt.Gita

                                                             .....Petitioner

                           VERSUS



Smt.Raj Bala & others

                                                              ....Respondents



CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?



PRESENT:            Mr.Manoj Kaushik, Advocate,
                    for the petitioner.

                    Mr.Rohit Ahuja, Advocate,
                    for respondent No.1.

                           ****

RANJIT SINGH, J.

Smt.Gita seeks quashing of notice/summoning order

dated 19.7.2006 passed by ACJM, Faridabad. She is a married

sister-in-law of the complainant and is separately residing at her

matrimonial home at Palwal, but is summoned to face prosecution

under the provisions of Protection of Women from Domestic Violence

Act, 2005. (for short “the Act”).

The primary submission made on behalf of the petitioner
Criminal Misc.-M No.47145 of 2007 :2 :

is that she has wrongly and illegally been summoned for an offence

under the provisions of the Act, which was not even applicable on the

date the cognizance of the offence was taken. It is accordingly

pleaded that ACJM, Faridabad erred in taking cognizance of the

offence which was not an offence on the date he took cognizance of

the same.

The averment in the petition would show that the Act was

notified and came into effect w.e.f. 26.10.2006. The Magistrate,

however, has summoned the petitioner and his co-accused on

19.7.2006. The petitioner and her co-accused were summoned for

offences under Sections 12, 19, 20, 21, 22 and 23 of the Act. This is

stated to be an illegality as on 19.7.2006, the Act was not in force

and hence the so-called alleged offences under the Act, as noticed,

were not the offences on the Statute Book. Though other

submissions on merits have also been made, but need not be

noticed. The fact that this Act is enforced w.e.f. 26.10.2006 is not in

any serious dispute. Section 1(3) of the Act provides that the Act

shall come into force on such date as the Central Government may

by notification in the official Gazette appoint. The Central

Government has appointed 26 day of October, 2006 as the date on

which the said Act shall come into force as per Notification

No.S.O.1776(E) dated 17th October, 2006. It is, thus, clear that the

Act came into force w.e.f.26.10.2006. The learned counsel for

respondent No.1 did not dispute this factual position, but still insisted

in submitting that the Magistrate had rightly taken cognizance of

offence in this case as the Act is of the year 2005, i.e., prior to the

date, the Magistrate took cognizance on 19.7.2006. Without much
Criminal Misc.-M No.47145 of 2007 :3 :

justification, the counsel referred to a case of Pt.Rishikesh & Anr.

Vs. Smt.Salma Begum, 1995(3) RRR 429 in support of his plea. In

this case, the Hon’ble Supreme Court has observed that the

commencement of the Act is distinct from making the law. As per the

Hon’ble Supreme Court, as soon as the assent is given by the

President to the law passed by the Parliament it becomes law and

the commencement of the Act may be expressed in the Act itself,

namely, from the moment the assent was given by the President and

published in the Gazette, it becomes operative. However, it is also

observed that the operation may be postponed giving power to the

executive or delegated legislation to bring the Act into force at a

particular time unless otherwise provided. It is not understood as to

how this ratio of law would benefit the plea raised by the counsel for

the respondents. As already noticed, it is clearly provided in the Act

that it shall come into force on such date as the Central Government

may by notification in the official Gazette appoint. This Act came into

force on 26.10.2006, as already noticed. Thus, the legislature had

given power to the Central Government, delegated authority to notify

the date from which the Act was to come into force. This course is

permissible in terms of the law laid down in Pt.Rishikesh’s case

(supra). There is no need, thus, to pursue further the argument

raised by the counsel for the respondent that the Act is of 2005 and,

so the Magistrate could take cognizance on 19.7.2006. This, if

permitted would violate the provisions of Article 20 of Constitution of

India. Article 20 grants protection in respect of conviction for

offences by providing that no person shall be convicted of any

offence except for violation of law in force at the time of the
Criminal Misc.-M No.47145 of 2007 :4 :

commission of the act charged as an offence. As per this Article,

when a certain act is not an offence according to law in force at the

time when the act is done, the person who does that act must not be

held guilty of an offence merely because subsequently a law is made

making such act an offence. When the petitioner is alleged to have

committed the offences under various sections of the Domestic

Violence Act, which is not in force on the date of such acts, then the

charge framed under the said sections would not be maintainable in

view of Art. 20(1) of the Constitution as the said penal provisions

were not in existence when the alleged offences were committed. In

fact, there was no law in force at the time when the petitioner

allegedly committed these acts and, therefore, would be entitled to

the protection of Art.20(1) of the Constitution. Once the Act came

into operation on 26.10.2006, the various provisions of the Act

creating offences would not be an offences for which the petitioner

can be put to trial. The action of the court in taking cognizance on the

basis of this complaint on 19.7.2006, as such, cannot be sustained.

The summoning order, thus, cannot be sustained and the same is

set-aside.

The petition is allowed.

November 26, 2008                              ( RANJIT SINGH )
ramesh                                             JUDGE