Md. Sabir Hussain vs State of West Bengal

Kanchan Chakraborty, J.—C.R.R. 405 of 2008 and C.R.R. 2074 of 2008 are taken up together as a common question of Law is involved in both the revisional applications. The common question of Law that has arisen in both the revisional applications is whether a revision is lies against an order passed by the Trial Court u/s 23 of the Protection of women from Domestic Violence Act, 2005, in High Court where the Act is silent conspicuously about the scope of revision and there is provision of appeal only against an order passed under the Act.

Before dealing with the question of maintainability raised by the Bar, it would be expedient to state the factual background of both the revisional applications.

The facts leading to the revisional application, being No. C.R.R. 405 of 2008, is stated below, in short:

Badra Taranum Sabir, (hereinafter referred to as "the O.P. No. 2") filed an application u/s 12 of the Protection of women from Domestic Violence Act, 2005, (hereinafter referred to as "the Act"), against the present petitioners (1) Md. Sabir Hussain, (2) Ahmadi Begum, (3) Md. Dawood and (4) Md. Shahid, alleging therein that she was subjected to domestic violence in her matrimonial house, which is a "shared household". It was the case of the O.P. No. 2 that since inception of marriage, she was pressurised coupled with mental torture by her domestic relations in the "shared household", which is her matrimonial house, as she could not provide them with money according to their demand. The matrimonial disharmony ripened up and both the parties indulged themselves in various Criminal proceedings. Following some incidents, one ''Talaknama'' was sent by the petitioner No. 1, Md. Sabir Hussain, to the O.P. No. 2 on 14.1.2008. The O.P. No. 2, in turn, filed an application u/s 12 of the Act praying for reliefs under sections 18, 19, 20, and 22 of the Act. The learned Magistrate not only has taken cognizance of the complaint, but awarded interim monetary relief u/s 23 of the Act in favour of the O.P. No. 2 to the tune of Rs. 2,000/- per month, which is to be realised from the petitioner No. 1, Md. Sabir Hussain.

Md. Sabir Hussain and others, named earlier, have taken out this revisional application u/s 401 read with section 482 of the Code of Criminal Procedure praying for setting aside the order dated 25.1.2008 passed by the learned Metropolitan Magistrate, 12th Court, Calcutta and alternatively quashing of the entire proceeding on various grounds.

The facts leading to the revisional application, being C.R.R. No. 2074 of 2008, is stated below, in short:

One Paromita Dass filed an application u/s 12 of the Act in the Court of learned Metropolitan Magistrate, Calcutta, praying for reliefs under sections 18, 19, 20 and 22 of the Act against her husband, Sujoy Das, alleging therein that she was a victim of domestic violence since her marriage with Sujoy Das. She had to leave her matrimonial house in the month of September, 1996. Not only her husband inflicted physical and mental torture on her and her minor daughter, they were also not provided with sufficient food, clothing, medicines and other facilities of normal life. The learned Court pending disposal of the application u/s 12 of the Act, passed an order dated 6.5.2008 awarding interim monetary relief to the tune of Rs.3,500/- per month to the petitioner, Paromita Dass, u/s 23 of the Act. Paromita Dass not being pleased with the quantum of interim monetary relief, so awarded by the learned Metropolitan Magistrate, Calcutta, has taken out this application for revision of the order in order to enhance the quantum of award.

In C.R.R. 405 of 2008 the O.P. No. 2 has challenged the maintainability of this revisional application taken out by the four petitioners u/s 401 read with section 482 of the Code of Criminal Procedure. In C.R.R. 2074 of 2008, Sujoy Dass, the sole opposite party, has challenged the maintainability of the revisional application taken out by his wife, Paromita Dass, under Article 227 of the Constitution of India.

Although, the grounds challenging the orders impugned passed in two different cases are not similar and have no connection with each other, since the opposite parties in both the revisional applications raised the point of maintainability of both the revisional applications on the same ground that no revision is lies against any order passed under the Act, the matters have been heard together and covered by the instant order.

The sole question to be determined herein is whether any revision lies against an order passed under the Protection of women from Domestic Violence Act, 2005.

Mr. Shaw, learned Advocate appearing on behalf of the O.P. in C.R.R. 405 of 2008, contends that the Act provides appeal only u/s 29 of the Act. There is no provision in the Act, which enables any party to the case to file any revisional application against any order passed by the Magistrate under the Act. He further submits that u/s 23 of the Act a Magistrate is empowered to pass interim orders in order to provide an aggrieved person with interim reliefs under sections 18, 19, 20, 21 and as the case may be, u/s 22 of the Act against the respondents on affidavit and ex parte. He also submits that In C.R.R. 405 of 2008 the order, which has been impugned, was passed by the learned Metropolitan Magistrate on 25.1.2008 on the basis of an application taken out by the O.P. 2 herein u/s 23 of the Act. It was an ex parte order before the respondents, i.e. the petitioners herein, entered appearance. The learned Magistrate is empowered to do so by invoking its power u/s 23 of the Act in appropriate case. So, apparently there is no illegality, incorrectness and impropriety in the order. Therefore, the prayer for quashing of the entire proceeding by exercising inherent power u/s 482 of the Code of Criminal Procedure by this Court, does not arise. This apart, he submits, since the Act does not provide any scope of filing revisional application against any order passed under this Act and only appeal lies, this revisional application u/s 401 of the Code of Criminal Procedure is not maintainable and to be dismissed in limine.

Mr. Amit Bhattacharjee, learned Advocate appearing on behalf of the O.P. in C.R.R. 2074 of 2008, adopts the submissions of the learned Advocate appearing on behalf of the O.P. in C.R.R. 405 of 2008. To draw support of his contention Mr. Bhattacharjee refers to the following decisions:

(1) Sujoy Kumar Sanyal vs. Shakuntala Sanyal (Haider) & Anr. 2010 (3) C Cr. LR (Cal) 731,

(2) Shadab Bano vs. State & Ors. 2009 (1) C Cr. LR (Cal) 924 ,

(3) Asifa Khatoon vs. Rubina & The State of West Bengal, 2009 (1) C Cr. LR (Cal) 803 ,

(4) State of Maharashtra Vs. Marwanjee P. Desai and Others,

(5) K.M. Viswanatha Pillai Vs. K.M. Shanmugam Pillai,

(6) Sulochana and Another Vs. Kuttappan and Others,

(7) Maya Devi vs. State of NCT of Delhi, 2007 (4) JCC 2819 (Del),

(8) Kunhammu vs. Protection Officer, 2008 Cri. LJ 817 (Ker),

(9) Vinod Parashar vs. State of UP, 2008 Cri. LJ 837 (All),

(10) N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others,

(11) Punjab National Bank Vs. O.C. Krishnan and Others,

(12) Sadhana Lodh Vs. National Insurance Company Ltd. and Another,

(13) Bijoy Kumar Dugar vs. Bidya Dhar Datta, 2006 (2) SCC (Cri 81,

(14) C.C.T. Orissa and Others Vs. Indian Explosives Ltd., and.

(15) Seth Chand Ratan Vs. Pandit Durga Prasad (D) by Lrs. and Others,

Mr. Krishnendu Bhattacharya, learned Advocate appearing on behalf of the petitioners in C.R.R. 405 of 2008, makes three fold submissions. His first submission is that High Court can exercise its revisional jurisdiction under Article 227 of the Constitution of India, or u/s 401 of the Code of Criminal Procedure as well as can exercise its inherent power u/s 482 of the Code of Criminal Procedure in order to prevent the abuse of the process of Court and to provide substantive justice. His second contention is that the order impugned is illegal and incorrect because under proviso to sub-section (1) of section 12 of the Act a Magistrate is empowered to pass an order only upon receipt of report of domestic incident from Protection Officer or service provider. He submits that an order u/s 20 of the Act can only be passed after giving the O.P. an opportunity to be heard. That has not been done by the learned Magistrate before passing the order impugned. His third contention is that under the Act no relief can be awarded against any woman, petitioner No. 2 herein, Ahmadi Begum, the mother-in-law of the O.P. No. 2. That being the fact, the entire proceeding vitiates and is liable to be quashed.

Mr. Bhattacharyya, learned Advocate for the petitioners, in support of his contention refers to various decisions, which are as follows:

(1) Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others,

(2) Umaji Keshao Meshram and Others Vs. Radhikabai and Another,

(3) Marchhia Sahun & Anr. vs. State of W.B. & Ors. AIR 1979 CAL 94

(4) Probodh Chandra Roy vs. Life Insurance Corporation of India & ORs. 1977 (1) CLJ 237,

(5) Sukumar Banerjee vs. Chairman, Cal. Improvement Trust & Ors. 1978 (1) CLJ 96 ,

(6) Bimal Sahoo, Secretary, Basudebpur Girls'' High School and others Vs. Gouri Rani Pahari and others,

(7) Paltu Dutta Vs. S.M. Nibedita Roy,

(8) Mohammad Maqeenuddin Ahmed and Others Vs. State of Andhra Pradesh and Another,

(9) M.A. Mony Vs. M.P. Leelamma and Another,

(10) Sriram Industrial Enterprises Ltd. Vs. Mahak Singh and Others,

(11) Vadivelu Vs. Sundaram and Others,

(12) Comdr. Sureshwar D. Sinha and Others Vs. Union of India (UOI) and Others,

(13) Vakkom Purushothaman Vs. State of Kerala, , and

(14) Saman Ismail Vs. Rafiq Ahmad and Another,

I have considered the rival contentions of the learned Counsel appearing for the parties. It is true that the Act provides no scope of revision against any order passed by any Magistrate under this Act. There is provision of only appeal u/s 29 of the Act. Section 29 is reproduced below:

Appeal. - There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is serviced on the aggrieved person or the respondent, as the case may be, whichever is later.

The orders, which have been impugned in these two revisional applications, are passed u/s 23 of the Act. Section 23 of the Act is reproduced below:

Power to grant interim and ex parte ordeRs. - (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person u/s 18, section 19, section 20, section 21, or, as the case may be, section 22 against the respondent.

A thorough reading of the Act would disclose unequivocally that an aggrieved person under this Act, who is a victim of domestic violence, can initiate a proceeding following the procedures laid down u/s 12 of the Act. The provisions of section 12 of the Act is set out below:

Application to Magistrate.-- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the CPC 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.

When one application u/s 12 of the Act is filed by any aggrieved person, upon consideration of the facts and circumstances and after recording evidence of both the parties, a Magistrate can grant relief under sections 18, 19, 20, 21 as well as u/s 22 of the Act. Those are related to residential relief, monetary relief, protection order, custody order and compensation order. The Act provides interim relief also in respect of all the above stated reliefs enabling an aggrieved party to secure safety, financial ability and residential facilities. When a application u/s 23 of the Act is filed, a Magistrate is not required to wait for report of Protection Officer or service provider. The power of a Magistrate u/s 23 of the Act can be exercised as soon as an application is filed on affidavit in absence of the O.P. even before issuance of notice on him/them. Since provisions of section 23 of the Act are meant for instant relief, and can well be passed even without issuing notice upon the O.P. question of giving the O.P. an opportunity to be heard, does not arise. O.P. may well raise his objection at the time of hearing of the main application u/s 12 of the Act. Although application u/s 23 of the Act is consequential to the application u/s 12 of the Act, a Magistrate is not required to take evidence either of the petitioner or of the O.P. before passing of any order of interim in nature. On that analogy, the question raised by Mr. Bhattacharyya appears to be not acceptable.

In series of decisions of the Hon''ble Apex Court as well as different High Courts including this High Court, a consistent view has been taken to the effect that High Court should not entertain an application for revision where there is no patent irregularity or illegality in the face of the order under challenge, which has caused gross and great injustice to a party to the proceeding and High Court should not quash a proceeding by exercising inherent power u/s 482 of the Act where on the face value of the materials on record constitutes, prima facie, an offence, which is required to be tried.

In the petition u/s 12 of the Act filed by Badra Taranum Sabir, she has categorically stated that she was subjected to domestic violence in her husband''s house, which is a "shared household" by her domestic relations. So, taking the face value of materials appearing in the petition u/s 12 of the Act, the learned Magistrate initiated the proceeding and in doing so. the learned Magistrate committed no error or wrong, which necessitates quashing of the proceeding u/s 482 of the Code of Criminal Procedure.

In Sujoy Kumar Sanyal''s case (supra) this Court held that the order passed by a Magistrate being appealable u/s 29 of Act cannot be subjected to revision. In that case, a petition u/s 482 of the Code was taken out by the petitioner''s husband seeking quashing of the proceeding initiated u/s 12 of the Act. The Hon''ble Single Judge observed "Needless to say that the legislature in its wisdom has enacted the Protection of Women From Domestic Violence Act, 2005 to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters communicated therewith or incidental thereto through single window system."

In Shadab Bano''s case (supra) this Court observed that since there is provision for appeal only against the order of the Magistrate under this Act, revisional application is not maintainable. The Hon''ble Single Judge was pleased to quote the decision in Satya Narayan Sharma Vs. State of Rajasthan, , while taken that view. In Satya Narayan (supra), the Hon''ble Apex Court, inter alia, observed, "Section 482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised notwithstanding any other provision contained in any other enactment. Thus if an enactment contains a specific bar then inherent jurisdiction cannot be exercised to get over that bar. As has been pointed out in the cases of Madhu Limaye vs. State of Maharashtra, Janata Dal vs. H.S. Chowdhary and Indra Sawhney vs. Union of India the inherent jurisdiction cannot be restored to if there as a specific provision or there is an express bar of law."

Before going to the next reference, I think it is pertinent to mention that the Act provides that an aggrieved party to a proceeding can prefer an appeal u/s 29 of the Act. Although, there is no express bar in filing revisional application, the Act does not speak about the scope of revision. The Act is a special statute and when it provides for a statutory appeal u/s 29 of the Act, there is no scope for filing any revisional application in any Court against any order passed under this Act.

In Asifa Khatoon''s case (supra) the Hon''ble Single Judge of Delhi High Court opined that where a specific remedy is open to the party under a specific statute, High Court will not interfere u/s 482 of the Code of Criminal Procedure. In that case the matter was related to Protection of Women from Domestic Violence Act, 2005. According to the view of the Hon''ble Single Judge of Delhi High Court, when the statute provides remedy by way of appeal or by way of modification, alteration etc. the petitioner has alternative remedy under the Act, which she did not avail and straightway approached the Court u/s 482 of the Code of Criminal Procedure. That petition was found misconceived and not maintainable.

In Kunhammu''s case (supra) the Constitutional validity of section 13(2) of the Act was challenged. The Hon''ble Single Judge of Kerala High Court came to a finding that it has to be presumed that the order impugned was passed in accordance with the statutory scheme and if there has been infraction of any of the provisions of the Act, the petitioner can canvass the same in the appeal. Since the order impugned is an appealable order, the Hon''ble Single Judge declined to interfere with the same in exercise of extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India and given liberty to the petitioner to file an appeal u/s 29 of the Act before the appropriate forum.

From the foregoing decisions what can be gathered is that since the Protection of Women from Domestic Violence Act, 2005 is a special statute providing any aggrieved person with appeal only u/s 29 of the Act against any order passed under this Act, no revisional application is maintainable u/s 401 of the Code of Criminal Procedure and High Court should not exercise its extra-ordinary jurisdiction u/s 482 of the Code of Criminal Procedure and thereby quashing any proceeding pending in the Court of Magistrate. Aggrieved party in all the cases may prefer an appeal to the appropriate forum u/s 29 of the Act.

In Pepsi Foods Ltd.''s case (supra) the Hon''ble High Court of Allahabad observed that there is no bar or impediment for an accused to approach High Court u/s 482 of the Code or under Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him.

In my estimate, this decision, cited by Mr. Bhattacharyya, learned advocate appearing for the petitioners, is not matching with the case in hand. There cannot be any argument that an accused can approach High Court u/s 482 of the Code or under Article 227 of the Constitution of India to have the proceeding quashed against him when complaint does not make out any case against him. In fact, this is the. consistent ratio of the decisions on that issue. In the case in hand, there is specific allegations of domestic violence which have been made out in the petition filed by the O.P. in C.R.R. 405 of 2008 and by the petitioner in C.R.R. 2074 of 2008. I reiterate that taking the face value of the materials forthcoming from the petitioners'' complaint in both the cases, prima facie, constitute strong case of domestic violence against the petitioners in C.R.R. 405 of 2008 and in C.R.R. 2074 of 2008. Therefore, the petition filed by the petitioners in C.R.R. 405 of 2008 ought to have been dismissed in limine.

I have carefully gone through the decision of the Hon''ble Apex Court in Umaji''s case (supra) and found that it has no application in any manner in the present revisional applications.

The decisions in Marchhia Sahun (supra), in Probodh Chandra Roy (supra), Sukumar Banerjee (supra), Bimal Sahoo (supra), Paltu Dutta (supra) are related to established principle of Law that ordinarily High Court should not invoke writ jurisdiction where alternative remedy/relief is available to the party under the Statute barring few incidents. I have carefully gone through all the decisions and I am of the view that neither of the cases, referred to above, the Protection of Women from Domestic Violence Act, 2005 and remedy lies therein can be categorised as exception as indicated in those decisions, which, although not exhaustive. However, one thing is very clear that where there is a special statute provides special remedy, which one can avail, but fails to avail and straightway approaches High Court in its writ jurisdiction, High Courts should not entertain such an application and insist the party on availing the remedy available to him/her under the special statute to the special appropriate forum.

In Mohammad Maqeenuddin Ahmed''s case, the Hon''ble Single Judge of Andhra Pradesh High Court quashed proceeding against other family members, excepting the husband by invoking extra-ordinary power u/s 482 of the Code of Criminal Procedure on the ground that no specific allegations were made against other family members excepting the husband. The fact of the case in hand is quite different as I stated earlier, in both the cases, the wife/ petitioner in the learned Court below made out specific allegation of domestic violence against the petitioner/petition Rs. So, taking face value of the allegations and aspersions put forth in the petitions, when constitutes domestic violence within the definition of section 2(g) of the Act, question of entertaining an application u/s 482 of the Code of Criminal Procedure for quashing of the proceeding does not arise.

The decision of the Hon''ble Single Judge of Kerala High Court in the case of M.A. Mony (supra), is no way connected with the present revisional applications. The decisions of the Hon''ble Apex Court in Sriram Industrial Enterprises Ltd. (supra) and Comdr. Sureshwar D. Sinha (supra) are related to scope of judicial view/interference under Articles 226 and 227 of the Constitution of India.

Taking support of those two decisions, Mr. Bhattacharyya, learned Advocate appearing on behalf of the petitioners, submits that power of the High Court, under Articles 226 and 227 of the Constitution, is wide enough to enable it to exercise its superintending jurisdiction over the inferior Courts. This view of the Hon''ble Apex Court cannot be subject of discussion or dispute since it is accepted principle of Law. But, neither of the decisions give unlimited power to High Court to exercise its power under Articles 226 and 227 of the Constitution where there is specific alternative remedy/relief under a special Act. Rather, the ratio on this issue is that where such alternative remedy/relief is available in a special statute and one fails to avail it, High Court should not extend its jurisdiction under Article 226 and 227 of the Constitution and interfere with the matter. The decision of the Hon''ble Single Judge of Kerala High Court in Vakkom Purushothaman''s case (supra) consistent view of the Hon''ble Apex Court is reproduced below:

It is viewed by the Hon''ble Single Judge that when illegality is committed by Magistrate in a criminal proceeding, High Court is empowered to rectify the same in exercise of powers conferred on the Court under Article 227 of the Constitution of India.

I have already observed that in the cases in hand, the learned Magistrate made no illegality while passing the impugned ordeRs. Therefore, question of rectifying such order by invoking the power under Articles 226 and 227 of the Constitution does not arise.

Mr. Bhattacharyya, heavily relied on the decision of the Hon''ble Division Bench of Allahabad High Court in Saman Ismail''s case (supra). It was a case under Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). The Hon''ble Division Bench found that at the time of admission of the revision, objection as to maintainability of the revisional application was raised as under the Act no revision was maintainable u/s 397 of the Code of Criminal Procedure. The Hon''ble Division bench have taken the trouble to analyse the preamble of the Act i.e. Act 25 of 1986 and came to a conclusion that there was nothing to indicate that any order passed by Magistrate under the said Act, would not fall within the purview of sub-section (1) of section 397 of the Code of Criminal Procedure because there was no provision for appeal or revision in the Act itself and because under the particular Act is to be maintainable only in the Court of Judicial Magistrate, who is subordinate to High Court. I do not find applicability of the decision in the instant revisional application.

From the discussions above, it is clear that the petitioner herein failed to avail of his remedy available u/s 29 of the Act. They directly approached this Court - in one case for setting aside of the order as well as for quashing of the proceeding, and, in another case for enhancement of monetary relief awarded. All these matters can well be taken up by the appellate forum u/s 29 of the Act. Since under the special Act there is specific alternative remedy is available to the petitioners, this Court is of the opinion that the revisional applications are not maintainable and are liable to be dismissed.

Accordingly, both the revisional applications stand dismissed and are, thus, disposed of.

Interim order, if any, stands vacated.

The petitioners are at liberty to approach appropriate forum u/s 29 of the Act.

The learned Metropolitan Magistrate, 12th Court, Calcutta, is directed to recall the warrant of arrest already issued against the petitioners, so that they get opportunity to appear before the Court and make out their respective cases against the prayer u/s 12 of the Act filed by the O.P. No. 1. The learned Court is directed to fix the date of hearing of the appeals and pass necessary order in accordance with law preferably within two months hence.

In view of the disposal of the C.R.R. 405 of 2008, the connected application, being C.R.A.N. 55 of 2011, has become infructuous and the same is disposed of accordingly.

The department is directed to send the L.C.R. along with a copy of this order to the Court concerned immediately.

Let photostat certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.