Sachin Dogra vs Anju Bala

Rakesh Kainthla, J

The petitioner has filed the present petition seeking quashing of the application filed by respondent No.1 (aggrieved person) under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to as the DV Act). This Court delivered a judgment in Sanjeev Kumar and others Vs. Sushma Devi, Latest HLJ 2023 (HP) (1) 777 = 2023(3) Him. L.R. 1359 holding that a petition under Section 482 of Cr.P.C. does not lie in the proceedings arising out of the DV Act; hence, the matter was listed for hearing the parties on the question of maintainability.

I have heard M/s Ram Gautam, Ashok Thakur and S.D. Gill learned counsel for the petitioner, and Mr Ashwani Kumar Sharma learned counsel for the respondent.

Mr Ram Gautam, learned counsel for the petitioner, submitted that the judgment delivered by this Court in Sanjeev Kumar and others (supra) is required to be referred to a larger Bench because it ignores Section 28 of the DV Act and other relevant judgments delivered by different Courts and only relies upon the judgment of Madras High Court in Arul Daniel Vs. Suganya (2022) SCC Online Madras High Court 35. The other High Courts have also examined this question and have taken different views regarding the applicability of Section 482 of Cr.P.C. to proceedings arising under the DV Act. Therefore, this question is required to be decided authoritatively once and for all. He relied upon the following judgments in support of his submissions: -

(i) Chandavarkar Sita Ratna Rao Vs. Ashalata S. Gurnam 1986 (4) SCC 447.

(ii) State of Haryana and others Vs. Ch. Bhajan Lal and others, 1992 AIR 604.

(iii) M/s Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate & others, AIR 1998 SC 128.

(iv) M/s Estralla Rubber vs. Dass Estate (Private) Ltd., AIR 2001 SC 3295.

(v) Ouseph Mathai & Ors. M. Abdul Khadir, AIR 2002 SC 110.

(vi) Surya Dev Rai Vs. Ram Chander Rai & Ors., AIR 2003 sc 3044.

(vii) Chandrawati Devi & Ors. Vs. The State of Bihar and Anr., Cr. Misc. No. 7165 of 2008, decided on 29.4.2010.

(viii) Interjit Singh Grewal Vs. State of Punjab & Anr., 2011 AIR SCW 6259.

(ix) Ashish Dixit & ors. Vs. State of U.P. and Anr., Cr. Appeal No. 43 of 2013, decided on 7.1.2013.

(x) Smt. Geeta and Ors. The State of U.P. and another, Case No. 6054 of 2013, decided on 10.3.2014.

(xi) Azad Singh Ghangas Vs. Suman Kumari, Crl. Misc. No. M-6765 of 2015, decided on 14.3.2016.

(xii) Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari, Crl. Appeal No. 516 of 2016, decided on 18.4.2016.

(xiii) Amit Agarwal and others Vs. Sanjay Aggarwal and others, Crl. Misc. Pet. No. 36736 of 2024, decided on 31.5.2016.

(xiv) Santosh Kumar Vs. State of Bihar and another, 2018 Cri. L.j. 1553.

(xv) Vijita Salotra Kumar Vs. Neha Malviya and others, M. Cr. C. No. 7829 of 2015, decided on 23.8.2018.

(xvi) Kamatchi Vs. Lakshmi Narayanan, Cr. Appeal No. 627 of 2022, decided on 13.4.2022.

(xvii) Arul Daniel Vs. Suganya (2022) SCC Online Madra High Court 35.

(xviii) Hitesh Mahanta and others Vs. State of Assam and another, Cr. Pet. No. 228 of 2021, decided on 6.2.2023.

(xix) Dhananjay Mohan Zombade and others Vs. Prachi, Cr. Application No. 312 of 2023, decided on 18.7.2023.

(xx) Sanjeev Kumar and others Vs. Sushma Devi, Cr. Revision No. 132 of 2021, decided on 1.6.2023.

(xxi) Sanjeev Ramesh Doshi and others Vs. State of Maharashtra and another, Cr. Application No. 928 of 2022, decided on 26.2.2024.

(xxii) Nandkishor Prahlad Vyawahare Vs. Sau. Mangala, Cr. Application No.578 of 2011, decided on 3.5.2018.

(xxiii) Lincen Louis Thommana and others Vs. Leena Lincen Thommana and others, along with connected matters, Cr. Application No. 928 of 2022, decided on 26.2.2024.

(xxiv) A. Ramesh Babu and others Vs. Smt. Dharani S., Cr. Petition No. 3578 of 2022, decided on 28.6.2024.

Mr Ashwani Kumar Sharma, learned counsel for the respondent, submitted that the question was examined exhaustively by the Madras High Court and the judgment of Madras High Court was followed by this Court in Sanjeev Kumar (supra). There is no need to revisit the judgment, especially when the judgment has been circulated amongst the Courts in Himachal Pradesh, and they are consistently following it. Hence, he prayed that the petition be held to be not maintainable.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The judgments in Chandavarkar (supra), Estralla Rubber (supra), Ouseph Mathai (supra) and Surya Dev Rai (supra) deal with the power of the High Court under Article 227 of the Constitution of India. The judgment in Bhajan Lal (supra) deals with the power of the High Court under Section 482 of CrPC. The judgment in M/S Pepsi Food Limited (supra) deals with the jurisdiction of the Magistrate to summon the accused. Inderjit Singh Grewal (supra), Geeta (supra), Azad Singh (supra), Amit Agarwal (supra), Santosh Kumar (supra), Vijita Salotra (supra), and Ashish Dixit (supra) did not decide the question of the applicability of the Section 482 CrPC to the proceedings under DV Act; hence, these judgments are not relevant to the controversy pending in the present proceedings.

Madras High Court held in P. Pathmanathan Vs. Tmt. V. Monica (2021) SCC Online Mad. 8731 that the DV Act was enacted to enforce civil remedy by a Magistrate who is not a Criminal Court and not amenable to the proceedings under Section 482 of Cr.P.C. This view was affirmed by the Full Bench of Madras High Court in Arul Daniel (supra). Hon’ble Supreme Court also approved the special nature of the proceedings under the DV Act noticed in P. Pathmanathan (supra) in Kamatchi v. Lakshmi Narayanan, (2022) 15 SCC 50.

A full Bench of the Bombay High Court, on the other hand, held in Nandkishor Prahlad Vyawahare Vs. Sau. Mangala, (2018) Cr.LJ 2992 that the proceedings under the DV Act are civil but regulated by the Criminal Procedure Code under Section 28 of the DV Act; therefore, it will be incongruous to say that the rest of Cr.P.C. applies to the proceedings under D V Act but Section 482 of Cr.P.C. does not apply. A similar view was taken in Dhananjay Mohan Zumbade (supra). Incidentally, the judgment of the

Bombay High Court in Nandkishor (supra) has been referred to a Larger Bench of five Judges in Criminal Application in Lincen Louis Thommana (supra) and the result of the reference is still awaited.

Gauhati High Court held in Dhanpati Das and Ors. vs. State of Assam and Ors. MANU/GH/0269/2023 that the proceedings under the DV Act are civil except when they relate to a breach of a protection order or an interim protection order punishable under Section 31, even though they are conducted by a Magistrate. The jurisdiction under Section 482 of CrPC can be exercised in extremely extraordinary cases. A similar view was taken in Hitesh Mahanta (supra).

A Division Bench of the Gujarat High Court held in Suo Motu v. Ushaben Kishorbhai Mistry, 2015 SCC OnLine Guj 6262 that the proceedings under the DV Act are civilly triable by a Magistrate. However, Section 28 of the DV Act applies the provisions of Cr.PC to the proceedings under the DV Act. Hence, Section 482 of Cr.P.C. cannot be excluded from the proceedings under the DV Act.

Patna High Court held in Chandrawati Devi (supra) that Section 482 of CrPC applies to the proceedings under the DV Act but the power under Section 482 of CrPC is to be exercised sparingly.

Karnataka High Court, on the other hand, held in Oliver Menezes vs. Serita Therese Mathias MANU/KA/2078/2021 that the proceedings under the DV Act are civil. Hence, Section 482 of Cr.P.C. does not apply to such proceedings. A different view was taken in A. Ramesh Babu and Ors. vs. Dharani S. MANU/KA/1941/2024 and it was held that when the entire proceedings are sought to be quashed, the party can take recourse to Section 482 of Cr.P.C. Another Bench of the same High Court held in Balasaheb Patil and Ors. vs. Soni and Ors.MANU/KA/3010/2024 that Section 482 of Cr.P.C. does not apply to the proceedings under the DV Act and these proceedings can be challenged by filing a writ petition.

Madhya Pradesh High Court held in Ankit Gehlot and Ors. vs. Anjali, MANU/MP/1039/2024 that the proceedings under the DV Act are civil, but inherent power under Section 482 of Cr.P.C. can be invoked for redressal of grievances arising from the orders passed in the proceedings under the Act.

Allahabad High Court held in Suman Mishra v. State of U.P., 2024 SCC OnLine All 3931 that the proceedings under the DV Act are civil and a petition filed under Section 482 of CrPC will not be maintainable to challenge those proceedings.

Andhra Pradesh High Court held in Muvva Bhargav and Ors. vs. The State of Andhra Pradesh and Ors., MANU/AP/0466/2023 that the concept of limited applicability of Cr.P.C. cannot be accepted and petition under Section 482 of Cr.P.C. can be filed regarding the proceedings under the DV Act, even though the proceedings are civil.

Jammu & Kashmir High Court held in Khalid Amin Kohli vs. Union Territory of J&K. and Ors., MANU/JK/0763/2023 that a petition under Section 482 of Cr.P.C. cannot be filed in respect of the proceedings arising under DV Act and recourse has to be taken to a petition under Article 227 of the Constitution of India.

Meghalaya High Court held in Abhishek Agarwala and Ors. vs. Komal Poddar, MANU/MG/0047/2023 that the proceedings under the DV Act are civil.

Calcutta High Court held in Chaitanya Singhania v. Khusboo Singhania, 2021 SCC OnLine Cal 2602 that the relief under the DV Act is civil; however, Section 28 applies CrPC to such proceedings, and consequently, Section 482 of Cr.P.C. applies to such proceedings. This view was reiterated in Narayan Biswas v. State of W.B., 2024 SCC OnLine Cal 1926.

A Division Bench of Punjab & Haryana High Court held in Hemant Bhagat and others Vs. Prekshi Sood Bhagat (2024) PHHC:140559-DB that the proceedings are civil, but since Section 28 of the DV Act makes the provisions of Cr.P.C. applicable to the proceedings under DV Act; therefore, the provisions of Section 482 of Cr.P.C. apply to the proceedings under DV Act.

It is apparent from the judgments of High Courts that they have proceeded basically on two reasoning: Bombay High Court held that even though the proceedings are civil, the provisions of Cr.P.C. have been made applicable by Section 28 of the DV Act; therefore, the provisions of Section 482 of Cr.P.C. will apply to the proceedings under the DV Act. Madras High Court, on the other hand, proceeded on the basis that since the proceedings are civil, Section 482 of Cr.P.C. cannot be applied to such proceedings. This Court, while deciding Sanjeev Kumar (supra), has followed the reasoning of the Madras High Court. Since it has been submitted that the reasoning of this Court is required to be revisited, it has become necessary to take a fresh look at both the reasonings and arrive at an independent conclusion.

It was laid down by the Hon’ble Supreme Court in State of W.B. v. Sujit Kumar Rana, (2004) 4 SCC 129: 2004 SCC (Cri) 984: 2004 SCC OnLine SC 94 that the inherent power of the High Court under Section 482 of Cr.P.C. can be exercised in relation to the proceedings pending before the Criminal Court. It was observed at page 140: -

“33. From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceedings pending before a court amount to an abuse of the process of the court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a court; which in the context of the Code of Criminal Procedure would mean “a criminal court” or whence a power is exercised by the court under the Code of Criminal Procedure. Once it is held that the criminal court had no power to deal with the property seized under the Act, the question of the High Court exercising its jurisdiction under Section 482 of the Code of Criminal Procedure would not arise.”

This position was reiterated in State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770: (2012) 4 SCC (Civ)1034: (2012) 4 SCC (Cri) 496: (2014) 1 SCC (L&S) 208: 2011 SCC OnLine SC 1545 wherein it was observed at page 796:

“51. The inherent power of the court under Section 482 CrPC is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where power is exercised by the court under CrPC. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. (Vide Kurukshetra University v. State of Haryana [(1977) 4 SCC 451: 1977 SCC (Cri) 613: AIR 1977 SC 2229] and State of W.B. v. Sujit Kumar Rana [(2004) 4 SCC 129: 2004 SCC (Cri) 984].)

This Court also took a similar view in Devinder Chauhan v. State of H.P., 2011 SCC OnLine HP 5394 and observed:

In D. Venkatasubramaniam v. M.K. Mohan Krishnamachari (2009) 10 SCC 488, it has been held that the inherent power of the High Court is saved to interfere with the proceedings pending before a criminal court if such interference is required to secure the ends of justice or where the continuance of the proceedings before a court amounts to abuse of the process of the court. Such a power under Section 482 of the Code is always available to the High Court in relation to a matter pending before a criminal court. The Supreme Court in State of West Bengal v. Sujit Kumar Rana (2004) 4 SCC 129 it has been observed as follows: -

“From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceedings pending before a court amount to an abuse of the process of Court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a court; which in the context of the Code of Criminal Procedure would mean “a criminal court” or whence a power is exercised by the court under the Code of Criminal Procedure. Once it is held that the criminal court had no power to deal with the property seized under the Act, the question of the High Court exercising its jurisdiction under Section 482 of the Code of Criminal Procedure would not arise.”

Therefore, it becomes necessary to determine whether the proceedings under the DV Act are pending before a Criminal Court or not.

Black's Law Dictionary (9th Edition) defines a criminal court as “A court with jurisdiction over criminal matters”. An earlier edition of the same dictionary (3rd Edition) defines criminal court as, “One where criminal cases are tried and determined, not one where civil cases are tried, or persons charged with criminal offences are held for action by proper authority.” Thus, the nature of the proceedings is to be seen to find out whether the court is a criminal court or not and it is fallacious to determine the nature of the court by looking at the person exercising the jurisdiction.

This principle was also laid down by the Judicial Committee of the Privy Council in Annie Besant v. Advocate-General of the Government of Madras, 1919 SCC OnLine PC 26 : (1918-19) 23 CWN 986 : (1918-19) 46 IA 176 : (1919) 10 LW 451: AIR 1919 PC 31 : (1919) 17 All LJ 925 : (1919) 37 Mad LJ 139 and it was held that a Magistrate conducting the proceedings under the Press and Registration of Books Act, 1867 is not an inferior Criminal Court as amenable to revisional jurisdiction. It was observed at page 994: -

“It is not easy to see how these proceedings could be deemed criminal proceedings within the Code of Criminal Procedure. They are not proceedings against the Appellant as charged with an offence. They are at the utmost proceedings which rendered the Appellant if she should thereafter commit a criminal or forbidden act, open to a particular form of procedure for a penalty.

In any view, as their Lordships have intimated their opinion that the magistrate in withdrawing the order of dispensation was not acting judicially, it follows that this is not a case for revision under the Code of Criminal Procedure.”

In V.B. D'Monte v. Bandra Borough Municipality, 1950 SCC OnLine Bom 34: ILR 1950 Bom 522: (1950) 52 Bom LR 537: AIR 1950 Bom 397: 1951 Cri LJ 1411, a Full Bench of Bombay High Court held that a Criminal Court may be constituted as a Court designate and civil jurisdiction may be conferred upon that Court. When the Criminal Court exercises a civil jurisdiction, it is not an inferior Criminal Court within the meaning of Criminal Procedure, and no criminal revision lies against the order passed by said Court. It was observed at page 526: -

“In our opinion, it is unnecessary to consider whether a revisional application would lie under s. 435 from a decision of a Magistrate under s. 110 of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925), 1925. In exercising our revisional power we are not exercising the jurisdiction conferred upon us under s. 435 of the Criminal Procedure Code. We are exercising a special jurisdiction which is conferred upon us under s. 110 of the Bombay Municipal Boroughs Act of 1925. Therefore, the only question that we have to consider is whether in exercising that special jurisdiction under s. 111 we should exercise it on the civil side or the criminal side. Now it cannot be disputed that the subject matter of the decision of the Magistrate is a purely civil matter. He is dealing with rates and taxes. He is not exercising any criminal jurisdiction, nor is he dealing with any criminal matter. Therefore when the matter comes before us in revision, it is a matter which is civil in its nature; and we see no reason why such a matter should be entertained on the criminal side of the High Court and not on the civil side.

Various decisions were cited at the bar, and I shall briefly consider them. But as I shall point out these decisions were more concerned with deciding whether a matter lay in revision under s. 435 of the Criminal Procedure Code or under s. 115 of the Civil Procedure Code. In all these cases no special jurisdiction was conferred upon the High Court, and therefore the High Court had to determine the nature and extent of its revisional jurisdiction; and in order to determine that the learned Judges who decided those cases had to consider whether the applications lay under s. 435 of the Criminal Procedure Code or under s. 115 of the Civil Procedure Code. The decision which has been now accepted as laying down the correct principle and which had been followed in several decisions of this Court is to be found in Lokmanya Mills Ltd. v. Municipal Borough, Barsi. [(1939) 41 Bom. L.R. 937.] In that case the decision under s. 110 was given by the First-Class Magistrate, Barsi, and a revision under s. 111 lay to the Sessions Court. The question then arose as to whether any revisional application lay from the decision of the Sessions Court, and Sir John Beaumont, sitting with Mr Justice N.J. Wadia, held that a revisional application lay under s. 115 of the Civil Procedure Code; and in coming to that conclusion the learned Chief Justice observed that “the question of liability to tax is a purely civil matter, and the Magistrate hearing an appeal against a demand notice is a criminal Court, so that an appeal lies from him to the Sessions Court, and not to the District Court, and revision lies from the Sessions Court to the High Court as a civil revisional application. The learned Chief Justice approved the earlier decision in Ahmedabad Municipality v. Vadilal [(1928) 30 Bom. L.R. 1084.] which lays down that the Sessions Judge in a case of that sort was exercising powers of a civil Court and not of a criminal Court and therefore no revision lay under the Criminal Procedure Code. Therefore, the clear view taken by the learned Judges who decided that case was that even a criminal Court may exercise civil jurisdiction and may dispose of civil matters if so authorised by a statute. The earliest decision in which a similar view has been taken is a decision in In re Dalsukhram. [(1907) 9 Bom. L.R. 1347.] There the Court was considering s. 86 of the Bombay District Municipal Act, 1901, which is analogous to the provisions in the Bombay Municipal Boroughs Act of 1925; and Mr Justice Chandavarkar and Mr Justice Knight held that a Magistrate hearing an appeal of the kind mentioned in s. 36 of the Bombay District Municipal Act of 1901 is merely an appellate authority having jurisdiction given by the Act to deal with the question of civil liability and therefore he is not an inferior criminal Court, and the Court held that no revision lay against his decision under s. 435 of the Criminal Procedure Code. The same view has been taken in Ahmedabad Municipality v. Vadilal, [(1928) 30 Bom. L.R. 1084.] to which I have already referred, by Mr. Justice Patkar and Mr. Justice Murphy, that under s. 86 matter related to civil liability, and they held that no revisional application lay under s. 435 of the Criminal Procedure Code.

The only decision to which our attention has been drawn, which seems to take a contrary view, is one reported in Emperor v. Devappa Ramappa. [(1918) 43 Bom. 607, S.C.21 Bom. L.R. 277.] In that case, a Magistrate was dealing with a matter under the Workmen's Breach of Contract Act, 1859; and a division bench consisting of Mr. Justice Heaton and Mr Justice Pratt took the view that a revisional application against his decision lay under ss. 435 and 439 of the Criminal Procedure Code, and the test that the bench applied was not the nature of the proceedings held by the Court, but the nature of the Court in which the proceedings were held; and according to these learned Judges as the Court in which the proceedings were held was a criminal Court and an inferior criminal Court, the High Court had the power of revision under s. 435 of the Criminal Procedure Code. Now, with great respect to the learned Judges who decided this case, this view seems to be contrary to the view taken in the earlier decision, to which I have just drawn attention, In re Dalsukhram, [(1907) 9 Bom. L.R. 1347.] and this decision was not referred to or considered. This case, viz. Emperor v. Devappa Ramappa, [(1918) 43 Bom. 607, S.C.21 Bom. L.R. 277.] seems to stand by itself and it has taken a view which has not found favour with the other learned Judges who have considered this question. The better view seems to be that a criminal Court may be constituted as a Court designata and civil jurisdiction may be conferred upon that Court. If a criminal Court exercises that jurisdiction, then it is not necessarily an inferior criminal Court within the meaning of the Criminal Procedure Code; and if a right of revision is given from a decision of such a Court, then that revisional application is civil in its character and not criminal. That is the only limited question that we have to consider in this case. As I stated before, we are not considering whether a revisional application lies under s. 435 of the Criminal Procedure Code or under s. 115 of the Civil Procedure Code. All that we are considering is whether a special jurisdiction conferred upon us is of a civil or a criminal character; and on that question, there can be no dispute that it is of a civil nature.

It was held by Madras High Court in R. Subramaniam v. Commissioner of Police, 1963 SCC OnLine Mad 249: AIR 1964 Mad 185: (1964) 1 Cri LJ 519 that in order to constitute a Criminal Court, the Court should not only be mentioned as the Criminal Court under Cr.P.C. but it should also be acting as a Criminal Court. It was observed at page 187:

“6. Section 6 of the Cr PC classifies the criminal Courts. The Presidency Magistrate is one of the Courts mentioned in the section. Under Section 21 of the Cr PC, the Chief Presidency Magistrate is empowered to exercise all the powers conferred on him by the Code or by any law or rule in force immediately before the Code came into force. Thus the Chief Presidency Magistrate is a Court constituted under the Code of Criminal Procedure. Under Section 435 of the Cr PC, the High Court may call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself as to 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. The power of revision is conferred on the High Court to call for and examine the record of “any inferior Criminal Court”. The section, therefore, requires that the Court whose order is sought to be revised should be an inferior criminal Court and that any finding, sentence or order passed and the regularity of the proceedings can be examined by the High Court. To constitute a criminal Court it is not sufficient that it is one of the Courts mentioned in Section 6 of the Cr PC. It must be acting as a criminal Court. The magistrate may be acting under his executive or administrative capacity or the powers ‘conferred on him by some other law. These proceedings are not that of a Court and are not revisable. The magistrate should be acting as a Court and the proceeding that is sought to be revised should be a judicial proceeding. Under the Code, the magistrate is empowered to act judicially as well as in his administrative capacity. The orders that can be revised are those that are passed in judicial proceedings. “Judicial proceedings” is defined in Section 4(m) of the Cr PC as including any proceeding in the course of which evidence is or may be legally taken on oath. The definition is an inclusive one. Under “Judicial proceeding” the acts of the Court which are passed judicially, that is after hearing the parties, and which affect the rights of parties will be included.

***

A Presidency Magistrate or a First Class Magistrate, who is trying an offence under Section in of the Kerala General Sales Tax Act, is admittedly a criminal Court exercising jurisdiction under the Code of Criminal Procedure, and as already observed the conviction and sentence passed by the Magistrate is clearly revisable. The Court, while convicting and passing a sentence of fine also specifies the tax as recoverable as a fine. Under Section 21 of the Kerala General Sales Tax Act, it is provided that the assessment levied shall not be questioned by a criminal Court. It is difficult to appreciate the argument that the magistrate, while convicting and sentencing an assessee to a fine, acts as a Court but when the magistrate proceeds to write the next line in his order specifying the tax due as recoverable as a fine, he is not doing it as a Court but only as a persona designata. In ILR 43 Bom 864 : (AIR 1919 Bom 93), already referred to the High Court of Bombay, while dealing with Section 161(1) of the District Municipalities Act, held that, though the power exercisable by the Magistrate under the first part of the section was judicial and the latter part ordinarily ministerial in nature, no differential treatment was intended in respect of the orders made by the Magistrate under sub-section (2). The above decision was not followed in ILR 1956-2 All 60 : ((S) AIR 1956 All 351). The Allahabad High Court was unable to agree that a proceeding under the latter part of Section 161(2) relating to the recovery of compensation and other expenses was one before a criminal Court, merely because the proceeding in prosecution under the earlier part was undoubtedly before a criminal Court. The Allahabad High Court also held that it did not follow that because a subsequent proceeding was before an inferior criminal court, the earlier proceeding also was before the criminal court when the two proceedings were entirely distinct from each other. The Supreme Court in AIR 1962 SC 574 refrained from expressing its opinion on the conflicting stand taken by the Bombay High Court and the Allahabad High Court. The Supreme Court held that in the case before it the proceeding before a magistrate was only a proceeding in the nature of recovery proceeding and was of a civil nature. The Supreme Court held that a magistrate, who entertained an application and held an enquiry because he was designated on that behalf must be treated as a persona designata and not as a magistrate functioning; and exercising his authority under the Code of Criminal Procedure. In the present case, as already observed, the Magistrate was exercising the functions as a Court, trying the assessee, convicting and sentencing him and in addition specifying that the arrear of tax is recoverable as a fine. Taking all the circumstances of the present case into consideration. I would respectfully follow the view of the Bombay High Court in ILR 43 Bom 864 : (AIR 1919 Bom 93) and hold that the direction of the Magistrate specifying the arrears of tax as recoverable as a fine is an order of an inferior criminal Court revisable under Section 435 of the Cr PC.

Section 435 of the Cr PC provides that the High Court may call for and examine the record of any proceeding before any inter-criminal court for examining the correctness, legality or propriety of any finding, sentence or order passed and as to the regularity of any proceedings of such criminal Court. Though the order specifying the arrears of tax as recoverable as a fine is not a finding or sentence, it is an order made by a criminal court. It is not necessary that every order of a criminal Court should be criminal in nature, for, in which case, the order passed by a Magistrate under Sections 145, 488 and 517 of the Cr PC will not be revisable. Section 435 clause (3) as it stood before the amendment of 1923 specifically excluded from the High Courts the revision of orders under Section 145, thus implying that but for that specific exclusion, all orders passed by another Criminal Court which would affect the rights of parties are revisable by High Court. The Magistrate was acting under the Code of Criminal Procedure and was passing an order which had the effect of adjudicating judicially the liability of the assessee to pay the tax.

A Full Bench of Kerala High Court held in Mammoo v. State of Kerala, 1979 SCC OnLine Ker 110: 1979 KLT 801: AIR 1980 Ker 18: 1979 KLT (SN 126) 59: 1980 Cri LJ (NOC 75) 31 that a Court of District Magistrate exercising the power under Indian Telegraph Act cannot be called a criminal court merely because he exercises the functions of a Magistrate mentioned in Section 6 of CrPC. It was observed at page 804:

“12. S. 6 of the Code defines the class of courts and Executive Magistrate is one such. Should that mean that in any and every case where he functions, he does function only as a court. Should it be said that even where he functions administratively and passes an order which is not judicial, he functions as a court. We think not. When an Executive Magistrate exercises functions which are purely of an administrative or executive character, he does not perform the role of a court. We cannot accede to the extreme position canvassed by learned counsel for the petitioners in these cases that, irrespective of the nature of the functions exercised by the District Magistrate under the Indian Telegraph Act, he must be taken to be exercising functions of a court since the District Magistrate is one of the Executive Magistrates constituted under the Code of Criminal Procedure. Refuting such a contention which seems to have been urged before it, the Madras High Court in Subramoniam v. Commr. of Police, AIR. 1964 Mad. 185 observed in paragraph 7 of its judgment thus:

“To constitute a criminal Court, it is not sufficient that it is one of the Courts mentioned in S. 6 Criminal Procedure Code. It must be acting as a criminal court. The magistrate may be acting under his executive or administrative capacity or the powers conferred on him by some other law. These proceedings are not that of a Court and are not revisable. The magistrate should be acting as a Court and the proceeding that is sought to be revised should be a judicial proceeding. Under the Code, the magistrate is empowered to act judicially as well as in his administrative capacity. The orders that can be revised are those that are passed in judicial proceedings. “Judicial proceedings” is defined in S. 4(m) Criminal Procedure Code as including any proceeding in the course of which evidence is or may be legally taken on oath. The definition is an inclusive one. Under “judicial proceeding” the acts of the Court are passed judicially, that is after hearing the parties, and which affect the rights of parties will be included.”

The Supreme Court had occasion to consider whether a Magistrate acting under S. 234 of the Ajmer Merwara Municipalities Regulation, 1925 was acting as an inferior Criminal Court to the High Court within the meaning of S. 439 of the Code of Criminal Procedure 1898 corresponding to S. 397 of the 1973 Code. The proceedings that were initiated before the Magistrate were merely proceedings for recovery of expenses incurred by reason of the refusal to comply with the requisition issued to a party by the Municipal Committee. The nature of the enquiry contemplated by S. 234 was therefore very limited and partook only of the character of ministerial enquiry and not a judicial enquiry. Dealing with this the Supreme Court in Dargah Committee v. State of Rajasthan, AIR 1962 SC 574 observed in paragraph 6 of its judgment thus:

“In any event, it is difficult to hold that the Magistrate who entertains the application is an inferior criminal court. The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the moveable property of the defaulter. If at all, this would at best be a proceeding of a civil nature and not criminal. That is why, we think, whatever may be the character of the proceeding, whether it is purely ministerial or judicial or quasi-judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure. He cannot therefore be regarded as an inferior criminal court. That is the view taken by the High Court and we see no reason to differ from it.”

Evidently the Supreme Court was not prepared to hold that in every case where a Magistrate constituted under the Code of Criminal Procedure functions he functions as a court.

The Criminal Procedure Code 1872 contained a definition of the term ‘criminal court’ though in the later Codes such definition does not appear. In Act 10 of 1872 ‘criminal court’ is defined to mean and include every judge or magistrate or body of judges or Magistrates inquiring into or trying cases or engaged in any judicial proceedings. “Judicial proceeding” is defined in S. 4(m) of the Code of Criminal Procedure, 1898 thus:

“4(m) ‘judicial proceeding’ includes any proceeding in the course of which evidence is or may be legally taken on oath.”

That if a court exercises judicial functions it acts as a Court is indicated in Thakur Das v. State of M.P., (1978) 1 SCC 27: AIR 1978 SC 1. The question the Supreme Court was called upon to decide in that case was whether the judicial authority constituted by the State Government under S. 60 of the Essential Commodities Act to hear appeals against the order of confiscation that may be made by the licensing authority under S. 6A is an in inferior criminal court subordinate to the High Court and amenable to the Revisional jurisdiction of the High Court. Referring to this question the Supreme Court observed:

“The Full Bench answered the first question in the affirmative. While summing up its conclusion, the Court held that when a judicial authority like an officer who presides over a court is appointed to perform the functions, to judge and decide in accordance with law and as 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 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. We are in broad agreement with this conclusion”.

We think it may not be necessary for the purpose of this case to define in what all circumstances an authority functioning under a statute must be taken to function as a court. Suffice it to say that if the authority is not to exercise his functions judicially and is acting as an executive or administrative authority it would not be a court. Therefore, if in this case, we find that the functions exercisable by the District Magistrate are not judicial and the process by which such authority reaches the decision is not any judicial process he would not be functioning as a court.

We have already indicated that the term “criminal court” has not been defined. S. 211 of the Penal Code, 1860 concerns filing of false charge of offence made with intent to injure. That section provides that whoever with intent to cause injury to any person, institutes or causes to be instituted any criminal proceedings against that person, or falsely charges any person with having committed an offence knowing that there is no just or lawful ground for such proceedings or against that person, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both. “Criminal Proceeding” in that context necessarily refers to proceedings concerning the commission of an offence. In Albert v. State of Kerala, AIR 1966 Ker. 11 this Court observed that when a man sets the criminal law in motion against a person by giving information to the police that person has committed a cognizable offence, he institutes a Criminal Proceeding against that person within the meaning of S. 211 of the Penal Code, 1860. S. 397 of the Code of Criminal Procedure itself indicates that pursuant to the taking up of a revision under that Section the court may direct that the execution of any order or sentence be suspended, and if the accused is in confinement, that he be released on bail or his own bond. It further indicates that the revision is taken up for the purpose of satisfying itself as to the correctness, legality or propriety of any finding or order. In the decision of the Supreme Court in Dargah Committee v. State of Rajasthan, AIR 1962 SC 574 the Supreme Court considered the proceedings by a Magistrate under S. 234 to be proceedings of a civil nature. That was because though it was a Magistrate constituted as a Court under the Code of Criminal Procedure that was functioning such function was not of a criminal nature. On a consideration of all facts and circumstances, we find that the function of the District Magistrate under S. 16(1) of the Indian Telegraph Act is also not of a criminal character as the District Magistrate is only granting permission to the authority to proceed with its work and does not by himself impose any punishment or penalty. Therefore, apart from the fact that the District Magistrate does not function as a court even assuming that he was so functioning, he cannot be said to be functioning as a Criminal Court.

Thus, merely because the Magistrate is conducting the proceedings by following the provisions of CrPC will not make him a criminal court amenable to the jurisdiction under Section 482 of CrPC. It has to be shown that he was conducting criminal proceedings before he can be called to a criminal court amenable to the jurisdiction under Section 482 of CrPC.

The House of Lords held in Amand  Versus  Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147 that if the case or the matter might result in the conviction of the person charged or sentenced for some punishment such as imprisonment or fine, it is a criminal case or matter. It was observed: -

“The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a “criminal cause or matter.” The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter, as is shown by Ex parte Woodhall 20 Q. B. D. 832 and Rex v. Brixton Prison (Governor of). Ex parte Savarkar [1910] 2 K. B. 1056

Halsbury's Laws of England, Fourth Edition, Vol. 11 defines the difference between civil and criminal proceedings by saying that the civil proceedings are taken out for the recovery of money or other property or the enforcement of a right or advantage, however, the criminal proceedings are conducted to punish a person who has committed a crime. It was observed: -

“Civil proceedings have for their object the recovery of money or other property, or the enforcement of a right or advantage on behalf of the plaintiff: criminal proceedings have for their object the punishment of a person who has committed a crime. Criminal proceedings are not to be used as a means of enforcing a civil right. Whether conduct amounts to a crime may be determined by ascertaining whether the conduct in question is followed by criminal or civil proceedings. If the proceedings will result in the punishment of a party, the conduct in question will be a crime, notwithstanding that it may be a matter of small consequence. Where an act is commanded or prohibited by statute, disobedience is prima facie criminal unless criminal proceedings manifestly appear to be excluded by the statute. An act may be prohibited or commanded by a statute in such a manner that the person contravening the provision is liable to a pecuniary penalty which is recoverable as a civil debt; in such an instance, contravention is not a crime.”

It was held in State of Uttar Pradesh v. Mukhtar Singh, 1957 SCC OnLine All 263: AIR 1957 All 505: 1957 AWR 268 that the subject matter of the proceedings, its object and not the mode adopted or the forum are to be considered while determining whether the proceedings are civil or not. It was observed at page 522: -

“128. Whether a proceeding is civil or not depends, in my opinion, on the nature of the subject matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. The expression “civil rights” in a broad sense comprises the entire bundle of private rights that a human being or any person recognises by law as a juristic entity might, as such, possess under the law and for the recognition, declaration or enforcement of which law makes a provision.”

Hon’ble Supreme Court held in S.A.L. Narayan Row v. Ishwarlal Bhagwandas, (1965) 57 ITR 149: 1965 SCC OnLine SC 18: AIR 1965 SC 1818 that a party asserts the existence of right and claims relief for its breach in the civil proceedings whereas criminal proceedings results in the imposition of a sentence such as death imprisonment, fine or forfeiture. It was observed: -

“8…The expression “civil proceeding” is not defined in the Constitution, nor the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by civil law or by statute and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts is not exhausted by classifying the proceedings as civil and criminal. There are certain proceedings which may be regarded as neither civil nor criminal. For instance, proceedings for contempt of court, and exercise of disciplinary jurisdiction against lawyers or other professionals, such as Chartered Accountants may not fall within the classification of proceedings, civil or criminal. But there is no warrant for the view that from the category of civil proceedings, it was intended to exclude proceedings relating to or which seek relief against enforcement of taxation laws of the State. The primary object of a taxation statute is to collect revenue for the governance of the State or for providing specific services and such laws directly affect the civil rights of the tax-payer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits imposition of the tax, or in the levy, assessment and collection of which rights of the tax-payer are infringed in a manner not warranted by the statute, a proceeding to obtain relief whether it is from the tribunal set up by the taxing statute, or from the civil court would be regarded as a civil proceeding...”

It  was  further  held  that  the  character  of  the proceedings is not dependent upon the Tribunal, which has the authority to grant relief. It was observed:-

“8….The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State and which if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc.”

This judgment was followed in Ram Kishan Fauji v. State of Haryana, (2017) 5 SCC 533: (2017) 2 SCC (Cri) 581: 2017 SCC OnLine SC 259 and it was held at page 551:

“28. The Court in Ishwarlal Bhagwandas case [CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190: AIR 1965 SC 1818] referred to Article 133 of the Constitution and took note of the submission that the jurisdiction exercised by the High Court as regards the grant of certificate pertains to judgment, decree or final order of a High Court in a civil proceeding and that “civil proceeding” only means a proceeding in the nature of or triable as a civil suit and a petition for the issue of a high prerogative writ by the High Court was not such a proceeding. Additionally, it was urged that even if the proceeding for issue of a writ under Article 226 of the Constitution may, in certain cases, be treated as a civil proceeding, it cannot be so treated when the party aggrieved seeks relief against the levy of tax or revenue claimed to be due to the State. The Court, delving into the nature of civil proceedings, noted that : (AIR p. 1821, para 8)

“8. … The expression “civil proceeding” is not defined in the Constitution, nor the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof.”

After so stating, the Court elucidated the nature of the criminal proceeding and, in that regard, ruled thus: (Ishwarlal Bhagwandas case [CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190: AIR 1965 SC 1818], AIR p. 1821, para 8)

“8. … A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed.”

Explicating the concept further, the Court opined that : (Ishwarlal Bhagwandas case [CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190: AIR 1965 SC 1818], AIR p. 1821, para 8)

“8. … The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed.”

It further held that a civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which, if the claim is proved, would result in the declaration, express or implied, of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status, etc.

The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as the criminal proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in the imposition of (i) sentence, and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peace and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed.

It was held in  Benham v United Kingdom (1996) 22 EHRR 293 that if the proceedings (a) are brought by a public authority, and either (b) have culpability requirements (e.g. requiring a finding of ‘culpable neglect’ or ‘wilful default’, or (c) have potentially severe consequences (such as imprisonment), they should be regarded as ‘criminal’ for the purposes of the European Convention on Human Rights even if they are labelled ‘civil’ in the domestic law of a Member State.

Therefore, it is apparent from the above-cited judgments that to determine the nature of the proceedings, the outcome has to be looked into and if it is followed by the imposition of the sentence, the proceedings have to be treated as criminal proceedings but if the outcome is the enforcement of the rights granted by the Civil Court or the statute, they are to be called civil proceedings. Mere pendency of the proceedings before the Magistrate or the applicability of CrPC is not sufficient to determine the nature of the proceedings or the jurisdiction exercised by him.

Para-3 of the statement of the object and reasons appended to the DV Act shows that the act was enacted to provide for a remedy under civil law. It reads as under: -

“3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

The 124th report of the Standing Committee of the Ministry of Human Resources Development in the Rajya Sabha mentioned the statement made by the Secretary that the appeal was brought to address a situation where the aggrieved woman does not want to initiate criminal proceedings or the civil proceedings for divorce. It was stated: -

“Outlining the basic features of the Bill, he stated that the existing civil, personal or criminal laws leave certain gaps in addressing the issue of Domestic Violence. Under criminal law, if a husband perpetrates violence on his wife, she may file a complaint under Section-498 A of IPC. Similarly, under civil law, if there is disharmony in a family and the husband and wife cannot live together, any one of them may file a suit for separation followed by divorce. However, the present Bill addresses such a situation where there is some disharmony in the family but the situation has not yet reached a stage where either separation or divorce proceedings have become inevitable and the aggrieved woman also for some reason does not want to initiate criminal proceedings against her perpetrator. Therefore, the Bill seeks to give the aggrieved woman an alternative avenue whereby she can insulate herself from violence without being deprived of the basic necessities of life and without disintegrating her family.”

It was laid down by the Constitutional Bench of the Hon’ble Supreme Court in Bengal Immunity Company Limited v. State of Bihar, (1955) 6 STC 446: 1955 SCC OnLine SC 2: 1955 (2) SCR 603 that Heydon’s Rule requires the Court to consider the common law before the making of the Act, mischief or defect which the law did not provide, the remedy proposed by the Act and the reason for the remedy. It was observed:

“It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case 3 Co. Rep. 7a; 76 E.R. 637 was decided that ".................for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:-

1st. What was the common law before the making of the Act;

2nd. What was the mischief and defect for which the common law did not provide;

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth; and

4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, advance the remedy, and suppress subtle inventions and evasions for the continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, Pro bona publico."

In In re Mayfair Properly Company (1898) 2 Ch. 28 at p. 35 Lindley, M. R., in 1898 found the rule "as necessary now as it was when Lord Coke reported Heydon's case (supra)". In

Eastman Photographic Material Company v. Comptroller General of Patents, Designs and Trade Marks [1898] A.C. 571 at p. 576, Earl of Halsbury reaffirmed the rule as follows:

"My Lords, it appears to me that to construe the Statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise and to the later Act which provided the remedy. These three being compared I cannot doubt the conclusion."

It appears to us that this rule is equally applicable to the construction of Article 286 of our Constitution. In order to properly interpret the provisions of that Article it is, therefore, necessary to consider how the matter stood immediately before the Constitution came into force, what the mischief was for which the old law did not provide and the remedy which has been provided by the Constitution to cure that mischief.

A similar view was taken in Baliram Waman Hiray v. Justice B. Lentin, (1988) 4 SCC 419: 1988 SCC (Cri) 941: (1989) 176 ITR 1 : (1989) 72 STC 384 wherein it was observed at page 440:

“25…No rule is more firmly established than the principles enunciated in the Heydon case [(1584) 3 Co Rep 7a: 76 ER. 637] which have been continually cited with approval not only by the English courts but also by the Privy Council as well as this Court. The principles laid down in the Heydon case [(1584) 3 Co Rep 7a: 76 ER. 637] have been enunciated in Craies on Statute Law, 6th Edn., at p. 96 as follows:

“That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) What was the common law before the making of the Act (2) What was the mischief and defect for which the common law did not provide (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth (4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico.”

These rules are still in full force and effect, with the addition that regard must now be had not only to the existing law but also to prior legislation and the judicial interpretation thereof. The court applied the Rule in the Heydon case [(1584) 3 Co Rep 7a: 76 ER. 637] in Bengal Immunity Company Limited v. State of Bihar [AIR 1955 SC 661: (1955) 2 SCR 603: (1955) 6 STC 446] in the construction of Article 286 of the Constitution. After referring to the state of law prevailing in the then Provinces prior to the Constitution as also to the chaos and confusion that was brought about in interstate trade and commerce by indiscriminate exercising of taxing powers by the different Provincial Legislatures founded on the theory of territorial nexus, S.R. Das, Actg. C.J. speaking for himself and Vivian Bose and Jafer Imam, JJ proceeded to say: (SCR p. 635)

“It was to cure this mischief of multiple taxation and to preserve the free flow of interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286 of the Constitution....”

An illustration of the application of the Rule is also furnished in the construction of Section 2(d) of the Prize Competitions Act, 1955. In R.M.D.Chamarbaugwalla v. Union of India [AIR 1957 SC 628: 1957 SCR 930] Venkatarama Ayyar, J. speaking for the court after referring to the previous state of the law, to the mischief that continued under that law and to the resolutions passed by different State Legislatures under Article 252(1) of the Constitution authorising Parliament to pass the Act, stated: (SCR p. 939)

“[H]aving regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of the opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill.”

A further example is furnished in the construction of Section 16(3) of the Indian Income Tax Act, 1922 which provides: “In computing the total income of any individual for the purpose of assessment, there shall be included (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly.” The question before the court was whether the word “individual” occurring in Section 16(3) meant only a male or also included a female. After finding that the said word in the setting was ambiguous, Bhagwati, J. speaking for himself and J.L. Kapur, J. in CIT v. Sodra Devi [AIR 1957 SC 832: 1958 SCR 1 : (1957) 32 ITR 615] observed: (SCR p. 14)

“In order to resolve this ambiguity therefore we must of necessity have resort to the state of the law before the enactment of the provisions; the mischief and the defect for which the law did not provide; the remedy which the legislature resolved and appointed to cure the defect and; the true reason of the remedy....”

After taking into account these factors the learned Judge went on to say: (SCR p. 18)

“It is clear ... that the evil which was sought to be remedied was the one resulting from the widespread practice of husbands entering into nominal partnerships with their wives and fathers admitting their minor children to the benefits of the partnerships of which they were members. This evil was sought to be remedied by the enactment of Section 16(3) in the Act.”

There is no need to burden the judgment with numerous citations. Following the Rule in Heydon case [(1584) 3 Co Rep 7a: 76 ER. 637] it appears to us that to construe sub-section (3) of Section 195 of the Code it is not only legitimate but highly convenient to refer both to the former Code and the state of uncertainty brought about due to conflict of views between different High Courts, and to the present Code which seeks to provide the remedy. It was to cure this mischief that Parliament brought in subsection (3) of Section 195 of the Code and put an end to the controversy.

It was held in X2 v. State (NCT of Delhi), (2023) 9 SCC 433: 2022 SCC OnLine SC 1321 that the intention of the legislature can be identified by the mischief which was sought to be suppressed by enacting the statute. It was observed at page 466:

The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the purpose or object of the enactment, the mischief, and its corresponding remedy that the enactment is designed to actualise. [Justice G.P. Singh, Principles of Statutory Interpretation, (Lexis Nexis, 2016), at p. 12; State of H.P. v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351: 1992 SCC (L&S) 874; Union of India v. Elphinstone Spg. & Wvg. Co. Ltd., (2001) 4 SCC 139] Ordinarily, the language used by the legislature is indicative of legislative intent. In Kanai Lal Sur v. Paramnidhi Sadhukhan [Kanai Lal Sur v. Paramnidhi Sadhukhan, 1957 SCC OnLine SC 8: AIR 1957 SC 907], Gajendragadkar, J. (as the learned Chief Justice then was) opined that “the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself”. But when the words are capable of bearing two or more constructions, they should be construed in light of the object and purpose of the enactment. The purposive construction of the provision must be “illumined by the goal, though guided by the word”. [Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814] Aharon Barak opines that in certain circumstances this may indicate giving “an unusual and exceptional meaning” to the language and words used. [ Aharon Barak, Purposive Interpretation in Law, (Princeton University Press, 2007), at p. 306.]

Before we engage in the exercise of purposive construction, we must caution that a court's power to purposively interpret a statutory text does not imply that a Judge can substitute legislative intent with their own individual notions. The alternative construction propounded by the Judge must be within the ambit of the statute and should help carry out the purpose and object of the Act in question.

The interpretation of subordinate legislation should be consistent with the enabling Act. [Kedarnath Jute Mfg. Co. Ltd. v. CTO, 1965 SCC OnLine SC 32: AIR 1966 SC 12; Union of India v. Tulsiram Patel, (1985) 3 SCC 398: 1985 SCC (L&S) 672; M.L. Kamra v. New India Assurance Co. Ltd., (1992) 2 SCC 36: 1992 SCC (L&S) 403; St. Johns Teachers Training Institute v. NCTE, (2003) 3 SCC 321: 5 SCEC 391] A subordinate legislation must be reasonable and in consonance with the legislative policy. It should be interpreted in a meaningful manner, so as to give effect to the purpose and object of the enabling Act. An interpretation which is in consonance with the statutory scheme and gives effect to the statute must be adopted.

In Principles of Statutory Interpretation by Justice G.P. Singh, it is stated that a statute must be read in its context when attempting to interpret its purpose. [ Justice G.P. Singh, Principles of Statutory Interpretation, (Lexis Nexis, 2016), at p. 35.] Context includes reading the statute as a whole, referring to the previous state of law, the general scope of the statute, surrounding circumstances and the mischief that it was intended to remedy. [Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193: 1977 SCC (L&S) 435; RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424] The treatise explains that:

“For ascertaining the purpose of a statute, one is not restricted to the internal aid furnished by the statute itself, although the text of the statute taken as a whole is the most important material for ascertaining both the aspects of “intention”. Without intending to lay down a precise and exhaustive list of external aids, Lord Somervell has stated: “The mischief against which the statute is directed and, perhaps though to an undefined extent the surrounding circumstances can be considered. Other statutes in pari materia and the state of the law at the time are admissible.” These external aids are also brought in by widening the concept of “context” “as including not only other enacting provisions of the same statute, but its Preamble, the existing state of the law, other statutes in pari materia, and the mischief which the statute was intended to remedy”. In the words of Chinnappa Reddy, J.: “Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.”

The rule of purposive interpretation was first articulated in the Heydon case [Heydon case, (1584) 3 Co Rep 7a: 76 ER 637] in the following terms: (ER p. 638)

“… for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth.

And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.”

In Bengal  Immunity  Co.  Ltd. v. State  of  Bihar [Bengal Immunity Co. Ltd. v. State of Bihar, 1955 SCC OnLine SC 2 : (1955) 2 SCR 603: AIR 1955 SC 661], the Constitution Bench applied the mischief rule in Heydon case [Heydon case, (1584) 3 Co Rep 7a: 76 ER 637] in the construction of Article 286 of the Constitution. In Kehar  Singh v. State  (UT  of Delhi) [Kehar Singh v. State (UT of Delhi), (1988) 3 SCC 609: 1988 SCC (Cri) 711], a three-judge Bench of this Court held : (Kehar Singh case [Kehar Singh v. State (UT of Delhi), (1988) 3 SCC 609: 1988 SCC (Cri) 711], SCC pp. 717-18, paras 231 & 233)

“231. During the last several years, the “golden rule” has been given a go-by. We now look for the “intention” of the legislature or the “purpose” of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relations. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind them. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.

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For this purpose, we call in external and internal aids:

External aids are the Statement of Objects and Reasons when the Bill was presented to Parliament, the reports of the Committee, if any, preceding the Bill, legislative history, other statutes in pari materia and legislation in other States which pertain to the same subject matter, persons, things or relations.

Internal aids are Preamble, scheme, enacting parts of the statutes, rules of languages and other provisions in the statutes.”

A catena of decisions emanating from this Court, including Kerala Fishermen's Welfare Fund Board v. Fancy Food [Kerala Fishermen's Welfare Fund Board v. Fancy Food, (1995) 4 SCC 341], Bharat Singh v. New Delhi Tuberculosis Centre [Bharat Singh v. New Delhi Tuberculosis Centre, (1986) 2 SCC 614: 1986 SCC (L&S) 335], Bombay Anand Bhavan Restaurant v. ESI Corpn. [Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61 : (2009) 2 SCC (L&S) 573], Union of India v. Prabhakaran Vijaya Kumar [Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527 : (2008) 3 SCC (Cri) 813], settle the proposition that progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision.

In S. Gopal Reddy v. State of A.P. [S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596: 1996 SCC (Cri) 792], while interpreting the Dowry Prohibition Act, 1961 (a beneficial legislation), this Court interpreted the meaning of “dowry” by adopting the purposive interpretation approach: (SCC p. 607, para 12)

“12. It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of “dowry” punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, “demand of dowry” as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr Rao that it is only the “demand” made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow. Take for example a case where the bridegroom or his parents or other relatives make a “demand” of dowry during marriage negotiations and later on after bringing the bridal party to the bride's house find that the bride or her parents or relatives have not met the earlier “demand” and call off the marriage and leave the bride's house, should they escape the punishment under the Act. The answer has to be an emphatic “no”. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes.” (emphasis in original)

This principle has consistently been applied by this Court while construing beneficial legislation. Most recently in K.H. Nazar v. Mathew K. Jacob [K.H. Nazar v. Mathew K. Jacob, (2020) 14 SCC 126], Nageswara Rao, J. writing for a two-judge Bench observed: (SCC p. 135, para 11)

“11. Provisions of beneficial legislation have to be construed with a purpose-oriented approach. [Kerala Fishermen's Welfare Fund Board v. Fancy Food, (1995) 4 SCC 341] The Act should receive a liberal construction to promote its objects. [Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61 : (2009) 2 SCC (L&S) 573 and Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527 : (2008) 3 SCC (Cri) 813] Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the court's duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation [Bharat Singh v. New Delhi Tuberculosis Centre, (1986) 2 SCC 614: 1986 SCC (L&S) 335].”

Thus, the Court has to adopt a construction that will suppress the mischief. It is apparent from the report of the standing committee and the statement of objects and reasons that the legislature thought that civil law does not provide any remedy to a victim of domestic violence. Therefore, the legislature intended to enact the DV Act to provide such a remedy under civil law to protect a woman from domestic violence. Thus, the mischief sought to be suppressed was the absence of the remedies under the Civil Law; thus, the DV Act has to be held to be civil to suppress the mischief.

This is also apparent from the fact that the legislature has used the term aggrieved person under Section 2(e) of the DV Act instead of the complainant and respondent under Section 2(q) instead of the accused. The term complaint under the DV Act under Rule 2(b) of the DV Rules means an allegation made orally or in writing by any person to a Protection Officer as contrasted from the definition of the complaint under Section 2(d) as the allegation made to the Magistrate with a view to his taking action under the Code. Rule 6(i) of the DV Rules provides that the application shall be as per Form II. The Magistrate does not take cognizance under Section 190 of Cr.P.C. and issues a notice as prescribed in Form-VII of the DV Rules as per Section 13 of the DV Act and Rule 12 of DV Rules. No formal notice of accusation or charge is framed. The Magistrate can pass protection orders under Section 18, residence orders under Section 19, monetary relief under Section 20, custody orders under Section 21 and compensation orders under Section 22 of the DV Act. Even Section 28 of the DV Act provides that proceedings under Sections, 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by Cr.P.C. Thus, the legislature has consciously used the word ‘proceedings’ in respect of Chapter-IV and offence in respect of Chapter-V. Section 32 provides for cognizance and only refers to Section 31(1) of the DV Act. This shows the intention of the legislature to separate the proceedings under Chapter IV and Chapter V. The Legislature has prescribed the offences cognizable by the Magistrate and punishable with imprisonment under Chapter V whereas no such procedure of cognizance and imposition of penalty has been provided under Chapter IV. This shows that the proceedings under Chapter V are criminal, the Magistrate trying them is a Criminal Court and the proceedings under Chapter IV are for enforcement of the rights and grant of various reliefs, which do not result in the imposition of punishment upon the respondent. Hence, the proceedings have to be taken as civil proceedings even though they are conducted by a Magistrate. Further, Madras High Court had rightly noticed that the whole of the Cr.P.C. does not apply to the Magistrate as the Magistrate is free to deny his aim procedure under Section 5.28(2) of DV Act and no formal notice of accusation or charge is to be framed.

It was submitted that the proceedings under Chapter V of the DV Act are criminal; hence, the proceedings under Chapter IV are to be treated as criminal. This submission cannot be accepted. Allahabad High Court held in Mt Mithan v. Municipal Board of Oral and State of U.P., AIR 1956 All 351 that merely because subsequent proceedings are before a Criminal Court cannot lead to an inference that the earlier proceedings were also before a Criminal Court. It was observed: -

“63. If once an authority acts as an inferior criminal Court, a subsequent proceeding before it may also be said to be one before an inferior criminal Court, but it does not follow that because a subsequent proceeding is before an inferior criminal Court, the earlier proceeding also is, especially when the two proceedings are entirely distinct from each other though one follows the other.”

Therefore, the former proceedings cannot be said to be criminal merely because the subsequent proceedings arising out of them are criminal.

Hon’bleSupreme Court also held in Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774 that the relief granted by the Magistrate is of civil nature but the breach of the orders is criminal. It was observed: -

“12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of the civil rights of the complainant i.e. aggrieved person. The intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:

“Introduction

The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women, in its General Recommendations, has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, when a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Penal Code, 1860. In order to provide a remedy in civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in society, the Protection of Women from Domestic Violence Bill was introduced in Parliament.

Statement of Objects and Reasons

Domestic violence is undoubtedly a human rights issue and a serious deterrent to development. The Vienna Accord of 1994 and, the Beijing Declaration, and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family.

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It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law, which is intended to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

The Bill, inter alia, seeks to provide for the following—

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(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.

The procedure for obtaining an order of relief is stipulated in Chapter IV of the DV Act, which comprises Sections 12 to 29. Under Section 12, an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person. The Magistrate is empowered, under Section 18, to pass a protection order. Section 19 of the DV Act authorises the Magistrate to pass a residence order, which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or, directing the respondent to remove himself from the shared household, or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides, etc. Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act include giving of relief in respect of the loss of earnings, medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. Custody can be decided by the Magistrate, which was granted under Section 21 of the DV Act. Section 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are civil. Section 23 vests the Magistrate with the power to grant interim ex parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are civil. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence.”

All the Courts have held that the proceedings pending before the Magistrate under the DV Act are civil. Even the Bombay High Court held in Nand Kishore (supra) that the proceedings under the DV Act are civil; however, the Bombay High Court has relied upon the fact that the proceedings under the DV Act are to be regulated by Cr.P.C. under Section 28 of the DV Act and there cannot be a limited application of Cr.P.C. by excluding Section 482 of Cr.P.C. This reasoning overlooks the fact that Section 482 Cr.P.C. is applicable when the proceedings are pending before a Criminal Court, as noticed above. Therefore, before making the provisions of Section 482 of Cr.P.C. applicable, the question whether proceedings are pending before the Criminal Court is to be considered. Once it was held that the proceedings were civil, the Magistrate would be a Court designate and not a Criminal court. Hence, the provisions of Section 482 of Cr.P.C. cannot be applied to the proceedings pending before him in view of the judgment of the Hon’ble Supreme Court in Surjeet Kumar Rana (supra). Hence, the judgment of Madras High Court that since the proceedings are civil, the provision of Section 482 of Cr.P.C. does not apply to the proceedings under the DV Act has to be preferred to the judgments of Full Bench of Bombay High Court and other Courts following the Bombay High Court. This Court had also followed the judgment of the Madras High Court and ordered that the same be circulated amongst the district judiciary who is relying upon the same. It was laid down by the Hon’ble Supreme Court in State of Punjab v. Davinder Singh, 2024 SCC OnLine SC 1860 that the doctrine of stare decisis demands that the courts should follow the settled principles and should not refer the matter to a larger Bench because the later view seems reasonable. It was observed:

“19. The importance of the doctrine of binding Precedents in the administration of our judicial system hardly needs to be reiterated. The doctrines of Precedent and Stare decisis are the core values of our legal system. In a series of cases, the Constitution Benches of this Court have time and again emphasized that when a decision is rendered by this Court, it acquires a reliance interest and the society organizes itself based on such legal order. When substantial judicial time and resources are spent on the References by the Constitution Benches, the same should not be further referred to the larger Bench by a smaller Bench, in a casual or cavalier manner, and without recording the reasons for disagreement.

As back as in 1974 a Seven-Judge Bench in Maganlal ChhaganLal (P) Ltd. v. Municipal Corporation of Greater Bombay (1974) 2 SCC 402, H.R. Khanna, J. had remarked that certainty in the law, which was an essential ingredient of the Rule of Law, would be considerably eroded if the highest Court of the land lightly overruled the view expressed by it in earlier cases. One instance where such overruling could be permissible, according to him, was a situation where contextual values giving birth to the earlier view had subsequently altered substantially.

In Lt. Col. Khajoor Singh v. Union of India AIR 1961 SC 532 a Seven-Judge Bench emphasized that the Court should not depart from an interpretation given in an earlier judgment of the Court unless there was a fair amount of unanimity that the earlier decision was manifestly wrong.

A more compendious examination of the issue was considered by another Seven-Judge Bench in Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North, Ahmedabad AIR 1965 SC 1636 wherein it was observed that frequent exercise by this Court of its power to review its earlier decisions on the ground that the view placed before it later appeared to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. It was further stated that before a previous decision is pronounced plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.

In a more recent decision in the case of Dr Shah Faesal v. Union of India 2020 (4) SCC 1 a Five-Judge Bench reiterated the doctrines of Precedents and Stare decisis and observed as under: —

“17. This Court's jurisprudence has shown that usually, the courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development. The numbers themselves speak of restraint and the value this Court attaches to the doctrine of precedent. This Court regards the use of precedent as an indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the rule of law. As the Chief Justice of the Supreme Court of the United States, John Roberts observed during his Senate confirmation hearing, “It is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even-handedness”. [Congressional Record—Senate, Vol. 156, Pt. 7, 10018 (7-6-2010).]

“18. Doctrines of precedents and stare decisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system. Arguably, Judges owe a duty to the concept of certainty of law, therefore they often justify their holdings by relying upon the established tenets of the law.”

“19. When a decision is rendered by this Court, it acquires a reliance interest and the society organises itself based on the present legal order. When substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner. It is only when a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well-established principle, that a reference will be made to a larger Bench. In this context, a five-judge Bench of this Court in Chandra Prakash v. State of U.P. [(2002) 4 SCC 234: 2002 SCC (Cri) 496: 2002 SCC (L&S) 496], after considering a series of earlier rulings reiterated that : (SCC p. 245, para 22)

“22. … The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court.”

The above exposition of law makes it clear that the doctrines of binding Precedent and Stare decisis, as also the judicial discipline and propriety, developed over the years, warrant that the decision of the larger Bench should be followed by the smaller Bench. If the smaller bench had any doubt or disagreement with a decision of the larger bench, it could refer the same for reconsideration to the larger bench, however, after setting out the reasons and justification as to why it could not agree or follow the decision of earlier larger Bench. Such disagreement also has to be based on some justifiable reasons, like where the earlier decision of the larger Bench is found to be manifestly wrong or where the contextual values giving birth to the earlier view had altered substantially etc. A casual exercise of power to refer the matter to the larger Bench without recording any reason or on the ground that the view placed before it later seems to be more reasonable, may incidentally tend to make law uncertain and introduce confusion, which must be avoided.

In the present case, there are no cogent reasons to differ from the view taken in Sanjeev Kumar (supra) and no need to refer the same to the Larger Bench.

Consequently, it is held that the present petition under Section 482 Cr.P.C. is not maintainable; however, the petitioner is at liberty to apply for its conversion to a petition under Article 227 of the Constitution of India, if so advised.

Cr. MP No. 4556 of 2024

In view of the decision on the question of maintainability, the interim order granted on 8.11.2024 shall stand vacated.