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