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Madras High CourtCRL OP(MD)/3362/2020dismissed

Kanchana v. Nagalakshmi

2021-03-12Honourable Mrs Justice R. Hemalatha2 pages

Crl.O.P.(MD)No.3362 of 2020 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.03.2021 CORAM :

THE HONOURABLE Mrs.JUSTICE R.HEMALATHA Crl.O.P.(MD)No.3362 of 2020 and Crl.M.P.(MD)Nos.1765 and 1766 of 2020 Kanchana

...Petitioner/Respondent No.3

/Vs./ 1.Nagalakshmi 2.Minor Sathyabala

...Respondents/Petitioner

Prayer: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in D.V.C.No.12 of 2017 on the file of the learned Judicial Magistrate No.II, Virudhunagar and quash the same.

For Petitioner : Ms.A.Banumathy For Respondents : Mr.S.Karthikeyan

ORDER

The present petition has been filed under Section 482 of the Code of Criminal Procedure seeking to quash the proceedings in D.V.C.No.12 of 2017 on the file of the learned Judicial Magistrate No.II, Virudhunagar.

2. In the decision in Crl.O.P.No.28458 of 2019 batch, a Hon'ble Single Judge of this Court vide orders dated 18.01.2021 after surveying various Supreme Court Decisions clearly held that quashing the proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is not maintainable under Section 482 of the Code of Criminal Procedure. He has further held that a petition under Article 227 of the Constitution of India alone would be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The relevant paragraph is extracted hereunder: "50. It follows that in view of the law laid down in S.A.L Narayan Row and Another vs. Ishwarlal Bhagwandas reported in AIR 1965 SC 1818 and Ram Kishan Fauji vs. State of Haryana reported in (2017) 5 SCC 533, that the character of a proceeding under the D.V Act, in so far as it relates to the reliefs under Sections 18 to https://hcservices.ecourts.gov.in/hcservices/ 1/2

Crl.O.P.(MD)No.3362 of 2020 23, does not become criminal in character merely on account of the procedure under the Cr.P.C adopted by the Magistrate. In view of the foregoing discussion, the inevitable conclusion is that a petition to quash an application under Section 12 of the D.V. Act is maintainable only by way of a petition under Article 227 of the Constitution and not under Section 482, Cr.P.C."

3. In the instant case, if the petitioner is aggrieved by the orders passed by the learned Judicial Magistrate No.II, Virudhunagar, she can file a petition under Article 227 of the Constitution of India, but definitely not under Section 482 of the Code of Criminal Procedure including the question of limitation within which Domestic Violence Original Petition can be filed by the aggrieved person.

4. In view of the same, this Criminal Original Petition is dismissed. While, the personal appearance of the petitioner is dispensed with, the petitioner is directed to appear before the concerned Judicial Magistrate, whenever her presence is required. Accordingly, Crl.M.P.(MD)No.1766 of 2020 is ordered. Consequently, Crl.M.P.(MD)No.1765 of 2020 is dismissed.

Sd/- Assistant Registrar(P & A) // True Copy // / /2021 Sub Assistant Registrar(CS) sm Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To The Judicial Magistrate No.II, Virudhunagar.

Crl.O.P.(MD)No.3362 of 2020 12.03.2021 na(CO) TR(24.04.2021) 2P 2C https://hcservices.ecourts.gov.in/hcservices/ 2/2