Court: Orissa High Court
Bench: JUSTICE B.K. Nayak
Smita Singh Vs. Bishnu Priya Singh & Ors. On 6 May 2013
Law Point:
Protection of Women from Domestic Violence Act, 2005 — Orders which scuttle rights of applicants to get relief under Act or bring proceeding to an end at the threshold must be held to be appealable under Section 29 of Act — Impugned order is appealable under Section 29 of Act.
JUDGEMENT
1. Heard learned Counsel for the Petitioner and learned Counsel for the opposite parties.
2. The Petitioner has filed Criminal Misc. Case No. 6 of 2009 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short “the Act”) in the Court of the learned S.D.J .M. (Sadar), Cuttack seeking certain reliefs against the present opposite parties. Opposite party No. 5 is the husband of the Petitioner, whereas, the other opposite parties who are all women, are the in-laws of the Petitioners. The opposite parties filed a petition before the learned S.D.J.M. (Sadar), Cuttack to exclude opposite Nos.1 to 4 from the category of respondents on the ground that they being women relatives of the husband of the Petitioner, they cannot be added as respondents. The said petition was allowed by Order dated 26.10.2009 which is impugned in this criminal revision.
3. At the very out-set, learned Counsel for the opposite parties raises objection to the maintainability of this Criminal revision stating that the impugned order is appealable under Section 29 of the Act.
Learned Counsel for the Petitioner, on the other hand, contends that an appeal lies against any order which is passed under any of the provisions of the Act and that the present order, being not one under any of the provisions of the Act, is not appealable.
4. Learned Counsel for both the parties rely on some decisions of different High Courts in support of their respective contentions.
5. The Kerla High Court in the case of Chithrangathan v. Seema, I (2008) DMC 365, examined the question of maintainability of revision against an ad interim order passed under Section 23(2) of the Act and held that the order impugned was appealable under Section 29 of the Act and revision was not maintainable.
The Kerala High Court also in W.P. (C) 19032 of 2008 between Girijan v. Subhadra, decided on 25.6.2008, examined the question with reference to an interim order and held that the order impugned was appealable under Section 29 of the Act.
In AIR 2009 (NOC) 507 (Uttar.) Manish Tandon v. Richa Tandon and Others, it has held that the would ‘Order’ used in Section 29 of the Act connotes all types of orders passed by the Magistrate irrespective of its description and nature which has been made appealable and, therefore, the petition under Section 482, Cr.P.C. would not be maintainable.
6. The Bombay High Court in Criminal Writ Petition No. 2218 of 2007 in the case of Mr. Abhijit Bhikaseth Auti v. State of Maharastra & Another, decided of on 16.9.2008 examined the question whether an order passed by the Magistrate in a proceeding under the Act refusing to grant interim relief was appealable or not and held that an appeal would lie against any final order passed by the Magistrate under Section 12 of the Act and all interim orders passed under Section 23 of the Act, but no appeal under Section 29 of the Act, would be maintainable against purely procedural orders which do not decide or determine, the rights and liabilities of the parties.
7. Relying on the decision of the Bombay High Court referred to above, learned Counsel for the Petitioner submits that the present impugned order, being a procedural order, which does not decide any rights or liabilities of the parties, cannot be made appealable under Section 29 of the Act. He further submits that appeal lies only against order contemplated in different provision of the Act and copies whereof have been served free of cost on the parties as per Section 24 of the Act.
8. Section 29 of the Act, which provides for appeal runs as under:
“29. Appeal—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the Respondent as the case may be whichever is later.”
Section 24 of the Act provides as follows:
“24. Court to give copies of order free of cost. The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police officer-in-charge of the police station in the jurisdiction of which the Magistrate has been approached and any service provider has registered a domestic incident report, to that service provides.”
9. Apparently, the provision for appeal under Section 29 of the Act is not restricted to order passed under any specific provision of the Act. Right to appeal under Section 29 of the Act is also not confined only to those orders in respect of which copies are served in accordance with the provisions of Section 24 of the Act. Section 29 of the Act refers to service of copy of order only for the purpose of deciding the question of limitation of thirty days for filing of an appeal from the date of service of copy of the order. In other words, mere non-service of copy of an order would not take away the right of appeal.
Questions whether the Magistrate has jurisdiction to entertain a proceeding under the Act; whether a proceeding is maintainable under the Act; or whether a person can be impleaded as a Respondent in the proceeding so that relief can be granted to the aggrieved person against such Respondent are matters which must be decided by the Magistrate when such question is raised before proceeding to consider about granting of relief to the aggrieved person. These are matters not merely relating to procedure, but they are so fundamental that the determination of rights and liabilities depends on the decision of such questions. The right to proceed against a person is inherent and has direct nexus with the question to seek relief from him under the provisions of the Act. If a Magistrate decides that a person proceeded against under the Act cannot be impleaded as a Respondent within the meaning of the Act, the whole proceeding has to be dropped. Such orders which, scuttle the rights of the applicants to get relief under the Act or bring the proceeding to an end at the threshold must be held to be appealable under Section 29 of the Act.
10. Therefore, this Court is of the view that the order impugned in present criminal revision is appealable under Section 29 of the Act. The Criminal Revision is therefore dismissed, but liberty is given to the Petitioner to challenge the order in appeal before the learned Sessions Judge. Question of delay in filing the appeal shall be dealt with by the Appellate Court keeping in view the pendency of this revision before this Court.
Criminal Revision dismissed.
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