The Meghalaya High Court has recently stated that the submission made under Section 12 of the Domestic Violence Act cannot be classified as a “complaint,” and as a result, the procedures and actions specified in Sections 200 (examination of the complainant), 202 (postponement of the issue of process), and 204 (issue of process) of the CrPC cannot be invoked by the parties or the Magistrate.
A bench consisting of Justice W. Diengdoh made these remarks while hearing a plea in which the petitioner had requested the quashing of criminal proceedings under Section 12 of the DV Act that were pending in the Court of the Judicial Magistrate First Class in Shillong.
The petitioner argued in his plea that the procedures established under Section 12 of the Domestic Violence Act are civil in character, and the court should first issue a notice to the respondent upon receiving an application from the affected party. However, the Magistrate summoned the petitioner to appear in court and also released a bailable warrant of arrest during the proceedings, according to the petitioner’s claim.
The petitioner accused the Magistrate of violating the Domestic Violence Act’s regulations, alleging that even if the application is treated as a complaint, the Magistrate did not utilize Section 202 of the CrPC to defer the issuance of a warrant against the petitioner, who, according to reports, was living beyond the court’s jurisdiction.
On the other hand, the respondents argued that the rules outlined in Chapter XV of the Criminal Procedure Code do not apply to Domestic Violence Act proceedings, and as a result, there has been no violation of Section 202 of the CrPC.
The respondents also argued that Section 13 of the DV Act only requires that the respondent be served with a notice of the hearing date in the prescribed format and that issuing a summons under the CrPC is not necessary for proceedings under Section 12 of the DV Act.
After evaluating the opposing arguments, the court concluded that Section 28 explicitly specifies that the proceedings under Sections 12, 18, 19, 20, 21, 22, and 23, as well as offenses punishable under Section 31 of the DV Act, shall be subject to the provisions of the CrPC.
Furthermore, the court explained that the CrPC provisions apply to all proceedings under the above-mentioned sections of the DV Act, unless the Act specifies a separate procedure to be followed. The court also noted that Section 31 of the DV Act designates a breach of a protection order or interim protection order as a criminal offense that is both cognizable and non-bailable, with a potential prison sentence of up to one year or a fine of Rs. 20,000, making it the only penal provision in the DV Act.
The court concurred with the respondents’ argument that a Section 12 DV Act proceeding does not fall under the ambit of Section 31 of the Act, which designates breach of a protection order or interim protection order as a criminal offense. The court relied on the Supreme Court’s judgment in Kamatchi v. Lakshmi Narayanan (2022 SCC), which noted the relevant point established in the case of Dr. P. Padmanathan, that an application under Section 12 is not a complaint as per the definition under Section 2(d) of the CrPC, and the procedures for taking cognizance under Section 190(1)(a) of the Code, as well as those outlined in Chapter XV of the Code, do not apply to proceedings under the DV Act.
The Court relied on the Kamatchi v. Lakshmi Narayanan judgment and held that Section 12 of the Domestic Violence Act does not fall under the purview of a complaint as defined under Section 2(d) of the CrPC. Therefore, the procedures and proceedings under Sections 200, 202, and 204 of the CrPC cannot be applied to such cases. Instead, upon receiving an application under Section 12, the Magistrate must issue a notice under Section 13 and call for a response from the respondent. The Court found the petitioner’s arguments to be without merit and dismissed the petition.
Source: https://www.livelaw.in/news-updates/meghalaya-high-court-section-12-domestic-violence-act-not-complaint-section-200-crpc-procedure-223118