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Article 227 can be exercised to quash the proceedings under Domestic Violence act, Madras High Court

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“The power under Article 227 can be exercised both over civil Courts as well as the criminal Courts.”, Madras High Court

The Madurai bench of Justice G.R.Swaminathan held that, provisions of Article 227 of constitution is ‘forum-neutral’. Irrespective of the nature of the proceedings, whether civil or criminal in nature, the said article provides the provisions to quash the proceedings.

In the matter, a petition was filed under Article 227 of the Constitution of India for quashing the proceedings in DVOP by the parents-in-law in March 2021. But the Registry did not number the petition for admission. Then the learned counsel mention before the bench for listing of the matter. The bench then directed the Registry to list the matter with a cation “For Maintainability”.

“the Registry did not number the petition. Therefore, the learned counsel made a mention before me yesterday for listing the matter. I directed the Registry to list the matter before me under the caption ‘For Maintainability’.”, in the order.

The bench observed the Registry was hesitant to list the matter as differing views have been expressed in the earlier order of the Madras High Court. The bench then discussed the order in ‘Dr.P.Pathmanathan and others v. V.Monica and others (2021 (2) CTC 57)’ and ‘P.Arun Prakash and others v. S.Sudhamary ( 2021-2-Law Weekly- 518)’.

In Dr.P.Pathmanathan case, it was held that the proceedings of civil in nature cannot be quashed under Section 482 of Cr.P.C. indicating the remedy available under Article 227.

“the proceedings instituted under the Central Act 43 of 2005 are civil in nature and therefore, petition under Section 482 of Cr.P.C. will not lie to quash them…it was also held that a petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the magistrate suffer from a patent lack of jurisdiction.”, the bench said.

While in the P.Arun Prakash case, it was held that the proceedings under DV Act are criminal proceedings.

“the proceedings filed under the Central Act 43 of 2005 before the Criminal Court can only be termed as criminal proceedings…such proceedings cannot be transferred from a criminal Court to a civil Court/Family Court by exercising the supervisory power under Article 227 of Constitution of India”, the bench said.

The bench also referred to the order in ‘Mohana Seshathri vs. E.Anuja (2021-2-L.W-509)’ in which Justice S.Vaidyanathan invoked ‘Article 227 of the Constitution’ to grant transfer relief.

“In the said case, Transfer C.M.P was filed under Section 24 CPC. The question arose as to whether power under the said provision can be exercised with respect to proceedings pending before a criminal court, even though the dispute is civil in nature. His Lordship Mr.Justice S.Vaidyanathan deemed it appropriate to invoke Article 227 of the Constitution to grant the relief of transfer.”, the bench said.

The bench further said that whether the proceedings under Central Act 43 of 2005 are civil or criminal in nature, the conflict will have to be resolved by the larger bench.

Justice Swaminathan on the issue that Registry did not number the petition, relied upon the case ‘P.Surendran v. State by Inspector of Police 9 SCC 154 (2019)’. It was held in the case that Registry cannot decide ‘maintainability of the petition’.

“we hold that the High Court Registry could not have exercised such judicial power to answer the maintainability of the petition, when the same was in the realm of the Court. As the power of judicial function cannot be delegated to the Registry, we cannot sustain the order, rejecting the numbering/registration of the Petition, by the Madras High Court Registry. Accordingly, the Madras High Court Registry is directed to number the petition and place it before an appropriate bench”, cited in the order.

The Bench observed that, the power under ‘Article 227 of the Constitution of India’ is wider and comprehensive, it does not distinguish between a civil court and a criminal court.

“Article 227 of the Constitution of India is to the effect that every High Court shall have the superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. The text of the provision is forum-neutral. It makes no distinction between civil court and criminal court. In other words, the power under Article 227 can be exercised both over civil Courts as well as the criminal Courts. While the power under Section 482 of Cr.P.C., can be exercised only with reference to criminal proceedings before the criminal Courts, the power under Article 227 of Constitution of India is much wider and comprehensive.”

It further said that Article 227 of the Constitution cannot be taken out on the issue of maintainability of an application.

“The issue relates to maintainability alone. The power under Article 227 of the Constitution cannot be ousted. Some may entertain the genuine belief that closing the Section 482 Cr.Pc gate would be rendered meaningless if a new opening is created under Article 227 of the Constitution.”

The bench directed the Registry to list the matter for admission before the portfolio Judge.

“I therefore hold that irrespective of whether the proceedings under Central Act 43 of 2005 are civil or criminal, the power under Article 227 of the Constitution would always lie to quash the proceedings, if a case is really made out.”

Read Order

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