{"id":40657,"date":"2010-10-28T00:00:00","date_gmt":"2010-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijaya-baskar-vs-suganya-devi-on-28-october-2010"},"modified":"2017-08-24T02:35:48","modified_gmt":"2017-08-23T21:05:48","slug":"vijaya-baskar-vs-suganya-devi-on-28-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijaya-baskar-vs-suganya-devi-on-28-october-2010","title":{"rendered":"Vijaya Baskar vs Suganya Devi on 28 October, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Vijaya Baskar vs Suganya Devi on 28 October, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 28\/10\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nCrl.O.P.(MD).No.10280 of 2010\nand\nM.P.(MD) Nos.1 and 2 of 2010\n\n1.Vijaya Baskar\n2.Mariappan\n3.Sorna\n4.Vijayakumar\n5.Balamurugan\n6.Mohana\t\t\t\t... Petitioners\n\nVs.\n\nSuganya Devi \t\t \t \t... Respondent\n\nPrayer\n\nPetition filed under Section 482 of the Code of Criminal Procedure,\npraying to call for the records in Domestic and Violence Case in Crl.M.P.No.2307\nof 2010 on the file of the Judicial Magistrate No.II, Madurai and quash the\nsame.\n\n!For Petitioners  ... Mr.M.Venkateswaran\n^For Respondent\t  ... Mr.L.Murugan\n\t\t      Government Advocate (Crl. Side)\n\n* * * * *\n:ORDER\n<\/pre>\n
\tHeard both sides.\n<\/p>\n
\t2. The germane facts absolutely necessary for the disposal of this
\npetition would run thus:\n<\/p>\n
\tThe respondent herein preferred a complaint under Section 12 of the
\nProtection of Women from Domestic Violence Act making allegations as against the
\nhusband and his relatives. The respondents 1 to 6 therein preferred this
\nCrl.O.P.(MD) No.10280 of 2010 to get quashed the said application filed by the
\nrespondent Suganya Devi on various grounds.\n<\/p>\n
\t3. The learned counsel for the petitioners in the present petition placing
\nreliance on the grounds of the petition filed under Section 12 of the Protection
\nof Women from Domestic Violence Act would submit that ex-facie and prima-facie
\nno case has been made out so as to attract the provisions of the Protection of
\nWomen from Domestic Violence Act; certain false statements are found set out in
\nthe application that she had been driven out of the matrimonial home; she also
\nlodged a complaint against the petitioners invoking Section 498(A) I.P.C. and
\nother sections and the petition under Section 125 Cr.P.C. claiming maintenance
\nwas filed by her; being not satisfied with those proceedings, she has come
\nforward with the petition under the Protection of Women from Domestic Violence
\nAct arraying all the petitioners without any ground whatsoever; there are self
\ncontradictory statements also between the version as found set out in the
\nDomestic Violence Act and in the previous cases. Accordingly he prays for
\nquashment of the petition on the ground that it is filed only to harass the
\nhusband viz. the 1st petitioner and his relatives, who are in no way concerned
\nwith the actual matrimonial dispute between the husband and wife.\n<\/p>\n
\t4. Whereas the learned counsel for the respondent would oppose the move
\nfor quashment on various grounds by pointing out that this is not a fit case for
\nquashment and according to him, the matter has to be gone into by the
\nMagistrate.\n<\/p>\n
\t5. The point for consideration is as to whether there are sufficient
\ngrounds for quashment under Section 482 Cr.P.C.?\n<\/p>\n
\t6. At this juncture, I would like to recollect and hark back to the
\ndecisions of the Honourable Apex Court as under:\n<\/p>\n
1.Kunga Nima Lepcha and others v. State of Sikkim and others<\/a> reported in (2010)
\n2 Supreme Court Cases (Cri) 878;\n<\/p>\n
2.Rubabbuddin Sheikh v. State of Gujarat and others<\/a> reported in (2010) 2 Supreme
\nCourt Cases (Cri) 1006.\n<\/p>\n
3.Ram Lal Narang v. State (Delhi Administration)<\/a> reported in (1979) 2 Supreme
\nCourt Cases 322.\n<\/p>\n
4.State of Haryana v. Bhajan Lal<\/a> reported in  AIR 1992 SUPREME COURT 604.
\nCertain excerpts from it, would run thus:\n<\/p>\n
\t“108. In the backdrop of the interpretation of the various relevant
\nprovisions of the Code under Chapter XIV and of the principles of law enunciated
\nby this Court in a series of decisions relating to the exercise of the
\nextraordinary powers under Article 226 or the inherent powers under Section 482
\nof the Code which we have extracted and reproduced above, we given the following
\ncategories of cases by way of illustration wherein such power could be exercised
\neither to prevent abuse of the process of any Court or otherwise to secure the
\nends of justice, though it may not be possible to lay down any precise, clearly
\ndefined and sufficiently channelised and inflexible guidelines or rigid
\nformulate and to give an exhaustive list of myriad kinds of cases wherein such
\npower should be exercised.\n<\/p>\n
\t1. Where the allegations made in the First Information Report or the
\ncomplaint, even if they are taken at their face value and accepted in their
\nentirety do not prima facie constitute any offence or make out a case against
\nthe accused.\n<\/p>\n
\t2. Where the allegations in the First Information Report and other
\nmaterials, if any, accompanying the F.I.R. do not disclose a cognizable offence,
\njustifying an investigation by police officers under Section 156(1) of the Code
\nexcept under an order of a Magistrate within the purview of Section 155(2) of
\nthe Code.\n<\/p>\n
\t3. Where the uncontroverted allegations made in the FIR or complaint and
\nthe evidence collected in support of the same do not disclose the commission of
\nany offence and make out a case against the accused.\n<\/p>\n
\t4. Where, the allegations in the F.I.R. do not constitute a cognizable
\noffence but constitute only a non-cognizable offence, no investigation is
\npermitted by a police officer without an order of a Magistrate as contemplated
\nunder Section 155(2) of the Code.\n<\/p>\n
\t5. Where the allegations made in the FIR or complaint are so absurd and
\ninherently improbable on the basis of which no prudent person can ever reach a
\njust conclusion that there is sufficient ground for proceeding against the
\naccused.\n<\/p>\n
\t6. Where there is an express legal bar engrafted in any of the provisions
\nof the Code or the concerned Act (under which a criminal proceeding is
\ninstituted) to the institution and continuance of the proceedings and\/or where
\nthere is a specific provision in the Code or the concerned Act, providing
\nefficacious redress for the grievance of the aggrieved party.\n<\/p>\n
\t7. Where a criminal proceeding is manifestly attended with male fide
\nand\/or where the proceeding is maliciously instituted with an ulterior motive
\nfor wreaking vengeance on the accused and with a view to spite him due to
\nprivate and personal grudge.”\n<\/p>\n
In fact, the raison d’etre of Section 482 Cr.P.C., is based on the maxim “Quando
\naliquid mandatur, mandatur et omne per quod perventur ad ilud.” (When anything
\nis commanded, everything by which it can be accomplished is also commanded.)<\/p>\n
 \t7. The learned counsel for the petitioner has invited the attention of
\nthis Court to the averments in the application filed under Section 12 of the
\nProtection of Women from the Domestic Violence Act and has argued that those are
\nall mere narrations and not backed by probable or possible evidence. According
\nto him, the summons issued also to the petitioners is one nomenclatured as
\nsummons to the accused person, which itself is not tenable. The petitioners are
\nhaving avocation of their own and if they are dragged to the Magistrate Court,
\nthen they will not be able to carry on with their day to day work.\n<\/p>\n
\t8. At the outset the Magistrate was not right in issuing the summons to
\nthe accused person in this case invoking Section 61 of the Code of Criminal
\nProcedure.  The learned counsel for the petitioners in this petition would
\nappropriately and appositely refer to Section 13 of the Protection of Women from
\nDomestic Violence Act, which is extracted hereunder for ready reference:
\n\t“13.Service of notice. – (1) A notice of the date of hearing fixed under
\nSection 12 shall be given by the Magistrate to the Protection Officer, who shall
\nget it served by such means as may be prescribed on the respondent, and on any
\nother person, as directed by the Magistrate within a maximum period of two days
\nor such further reasonable time as may be allowed by the Magistrate from the
\ndate of its receipt.\n<\/p>\n
\t(2) A declaration of service of notice made by the Protection Officer in
\nsuch form as may be prescribed shall be the proof that such notice was served
\nupon the respondent and on any other person as directed by the Magistrate unless
\nthe contrary is proved.”\n<\/p>\n
Along with that, I would like to refer to Section 28 of the said Act, which
\nreads as follows:\n<\/p>\n
\t“28. Procedure. (1) Save as otherwise provided in this Act, all
\nproceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under
\nSection 31 shall be governed by the provisions of the Code of Criminal
\nProcedure, 1973 (2 of 1974).\n<\/p>\n
\t(2) Nothing in sub-section (1) shall prevent the Court from laying down
\nits own procedure for disposal of an application under section 12 or under sub-
\nsection (2) of section 23.”\n<\/p>\n
\t9. A mere reading of Section 13 of the said Act would amply make the point
\nclear that at the initial stage, the Magistrate was not justified in treating
\nthe respondents in this case as accused and as such, hereafter relating to
\napplications under Section 12 of the Protection of Women from Domestic Violence
\nAct, the Magistrate should not issue summons under Section 61 Cr.P.C. treating
\nthe respondents as accused. What is contemplated under Section 13 of the Act is
\na notice specifying the date etc.,  The endeavour should be on the part of the
\nofficer concerned is to deal with the matter gently and treating the respondents
\nin a gentle manner and that should not be lost sight of. Unless the appearance
\nof the respondents are absolutely necessary on a particular date, they should
\nnot be simply harassed by compelling them to appear as though they are
\noffenders. The Magistrate should not loose sight of the fact that so long as the
\ncase is anterior to the protection order being passed, they should be treated
\nonly as respondents. However, after the order under Section 18 of the Act is
\npassed and if there is violation, then the proceedings might get changed and
\nbecome criminal proceedings.  As such, the Magistrates hereafter would
\nscrupulously adhere to the mandates contained in the Act itself.\n<\/p>\n
\t10. The contention of the learned counsel for the petitioner in this
\nCriminal Original Petition is that the case of the petitioner in the petition
\nfiled under the Protection of Women from Domestic Violence Act is false. The
\ntruth or falsity of the averments made in the petition filed under domestic
\nviolence case cannot be gone into, now in this criminal original petition in
\nview of the dicta as found set out in the decisions cited supra. In fact, before
\npassing the Protection Order under Section 18 of the said Act enquiry has to be
\nconducted, only  with an intention to bring together the parties. The protection
\nofficer as well as the Magistrate should encourage and enthuse the parties to
\nburry the hatchet and have peaceful living mixed with harmony and understanding.
\nThis Court while exercising its jurisdiction under Section 482 of Cr.P.C. at
\nthis stage is not expected to interfere and stall the proceedings also.\n<\/p>\n
\t11. Paramount, it is, to consider the gamut and the scope of the Act,
\nnamely The Protection of Women from Domestic Violence Act, 2005; certain
\nexcerpts from the objects and reasons are of immense importance which would run
\nthus:\n<\/p>\n
\t“2. The phenomenon of domestic violence is widely prevalent but has
\nremained largely invisible in the public domain. Presently, where a women is
\nsubjected to cruelty by her husband or his relatives, it is an offence under
\nSection 4980A of the Indian Penal Code. The civil law does not however address
\nthis phenomenon in its entirety.\n<\/p>\n
\t3. It is, therefore, proposed to enact a law keeping in view the rights
\nguaranteed under articles 14, 15 and 21 of the Constitution to provide for a
\nremedy under the civil law which is intended to protect the woman from being
\nvictims of domestic violence and to prevent the occurrence of domestic violence
\nin the society.”\n<\/p>\n
\t12. The term ‘civil law’ twice used therein is not an empty formality and
\nthat would exemplify and demonstrate, display and convey that the proceedings at
\nthe first instance should be civil in nature.  The legislators were conscious of
\nthe fact that all of a sudden if criminal law is enforced on the husband and his
\nrelatives, certainly that might boomerang and have deliterious effect in the
\nmatrimonial relationship between the husband and wife.  The object of the Act is
\nthat the victim lady should be enabled by law to live in the matrimonial family
\natmosphere in her husband\/in-laws’ house.  It is not the intention of the said
\nenactment to enable the lady to get snapped once and for all her relationship
\nwith her husband or the husband’s family and for that, civil law and civil
\nremedies are most efficacious and appropriate and keeping that in mind alone in
\nthe Act, the initiation  of action is given the trappings of civil proceedings
\nwhich the authorities including the Magistrate responsible to enforce the said
\nAct should not loose sight of.\n<\/p>\n
\t13. The status of the respondents should not be treated as that of accused
\nand that would spoil the very tenor and tone with which the Act has been
\ndrafted.  Keeping that in mind alone, Section 13 of the Act would contemplate
\nonly service of notice on the respondents and Rule 6(5) of the Protection of
\nWomen from Domestic Violence Rules, would contemplate that the applications
\nunder Section 12 shall be dealt with inconformity with Section 125 of the Code
\nof Criminal Procedure, 1973.\n<\/p>\n
\t14. It is obvious that the proceedings under Section 125 Cr.P.C are not in
\nstricto sensu criminal proceedings.\n<\/p>\n
\t15. After the passing of the protection order, if there is any violation,
\nthen only, such violation would constitute an offence under Section 31 of the
\nsaid Act and Section 32 of the Act would indicate that such violation would
\namount to a cognizable and non-bailable offence.\n<\/p>\n
\t16. It is, therefore, clear that the initial proceedings are civil in
\nnature and the learned Magistrate should be extraordinary careful in selecting
\nthe appropriate persons as the respondents.  Simply because the application
\nunder Section 12 of the Act might refer to large number of persons as
\nrespondents, the learned Magistrate is not duty bound to issue notice to all of
\nthem and there should be application of mind on the part of the Magistrate in
\nselecting the respondents as to whom notice should be sent, as otherwise having
\ntoo many respondents before the learned Magistrate, would constitute a stumbling
\nblock for arriving at a conclusion in summary proceedings.  The famous adage
\n“Too much of anything is good for nothing” should not be forgotten.\n<\/p>\n
\t17. As such, keeping in mind the spirit of the Act and the purpose sought
\nto be achieved, the learned Magistrate should process the application.\n<\/p>\n
\t18. As such, at this stage, this Court cannot simply quash the proceedings
\nunder the Protection of Women from Domestic Violence Act on the ground that the
\npetitioners in the Criminal Original Petition state that the allegations made in
\nthe Domestic Violence Act are all false.\n<\/p>\n
\t19. The learned counsel for the petitioners would submit that the parties
\nare at Chennai and the 1st petitioner is the husband, the second petitioner is
\nthe father of A1, the 3rd petitioner is the mother of A1, the 4th and 5th
\npetitioners are the brothers of A1 and the 6th petitioner is the wife of A5 and
\nit is difficult for them to appear before the Magistrate on every hearing.\n<\/p>\n
\t20. Ex-facie and prima-facie, it is clear that the husband, his parents
\nand his relatives have been summoned as accused, which the Magistrate could have
\navoided.  Hence, I would like to sensitize that let the Magistrate apply his
\nmind as to whether the presence of the respondents is absolutely necessary on a
\nparticular date and accordingly, send notice to such of those persons whose
\npresence are absolutely necessary. The Magistrate shall see that the matter is
\ndealt with as expeditiously as possible. Whenever any one or more of the
\nrespondents seek to get excuse from their absence in the proceedings, they are
\nat liberty to petition the Magistrate which shall be considered sympathetically,
\nbut without detriment to the proceedings.\n<\/p>\n
\t21. With the above observations, this petition is closed.  Consequently,
\nconnected M.Ps. are closed.\n<\/p>\n
sj<\/p>\n
To<\/p>\n
1.The Judicial Magistrate No.II,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Vijaya Baskar vs Suganya Devi on 28 October, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28\/10\/2010 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.10280 of 2010 and M.P.(MD) Nos.1 and 2 of 2010 1.Vijaya Baskar 2.Mariappan 3.Sorna 4.Vijayakumar 5.Balamurugan 6.Mohana … Petitioners Vs. Suganya Devi … Respondent Prayer Petition filed under […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-40657","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVijaya Baskar vs Suganya Devi on 28 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijaya-baskar-vs-suganya-devi-on-28-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijaya Baskar vs Suganya Devi on 28 October, 2010 - 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