1
A.F.R.
Neutral Citation No. 2024:AHC:89128
Court No. 80
Case : MATTERS UNDER ARTICLE 227 No. 339 of 2024
Petitioner : Saleem Ahmad
Respondent : State Of Up And 2 Others
Counsel for Petitioner : Sanjay Kumar Verma
Counsel for Respondent : G.A.,Kuldeep Singh Parmar
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Sanjay Kumar Verma, learned counsel for the
petitioner, Sri Pankaj Saxena, learned AGAI for the State
respondents and Sri Kuldeep Singh Parmar, learned counsel
for respondent no. 2.
2. The present petition has been filed seeking to assail the
order dated 18.08.2022 passed by Judicial Magistrate,
Ghatampur, Kanpur Dehat in Case No. 474 of 2019
(Mashroof Raza alias Sonu Khatoon Vs. Waseem Ahmad
and others), under Section 12 of Protection of Women from
Domestic Violence Act, 2005
1
, and the subsequent order
dated 03.10.2023 passed by the Additional Sessions Judge,
Court No. 1, Kanpur Dehat in Criminal Revision No. 76 of
2022 (Saleem Ahmad vs. State of U.P. and another),
whereby the earlier order has been affirmed.
3. The facts of the case as reflected from the pleadings in
the petition indicate that an application dated 21.12.2019
was moved by the respondent no. 3 seeking an amendment
in the relief clause of an earlier application dated
1D.V. Act
2
03.08.2019 which had been filed under Section 12 of the
D.V. Act. The application seeking amendment sought
deletion of a part of the relief clause, stating that due to an
inadvertent typographical error, maintenance had been
sought for 'the minor son', whereas the applicant did not
have any minor son.
4. The petitioner herein, who is the father of the husband
of the respondent no. 3 (applicant in D.V. Case), raised
objections to the amendment application by contending
that no such amendment was permissible in a criminal
proceeding.
5. Learned Magistrate passed an order dated 18.08.2022
allowing the application dated 21.02.2019 seeking
amendment, and observing that the said application be
read along with the main application, fixed a date for
passing of further order.
6. Aggrieved against the aforesaid order, the petitioner
preferred a revision, which has been rejected by an order
dated 03.10.2023, wherein the revisional court has held
that proceedings under the D.V. Act are quasi civil in
nature, and accordingly, amendments to pleadings were
permissible.
7. The order passed by the learned Magistrate on the
amendment application and the subsequent revisional
order, are sought to be assailed by means of the present
petition.
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8. Learned counsel for the petitioner has sought to
challenge the orders passed by the learned Magistrate and
the revisional court by referring to the factual aspects of the
case and the defence which is to be set up on behalf of the
petitioner to contest the proceedings.
9. Learned AGAI appearing for the State respondents and
also the counsel appearing for the respondent no. 3 have
supported the orders passed by the learned Magistrate and
also the revisional court by submitting that proceedings
under D.V. Act are essentially of a civil nature and in a
situation where amendment is necessary, the Court
concerned would have power to allow such amendments.
10. It is submitted that the amendment sought in the
present case was to correct an inadvertent typographical
error, and the objections which were sought to be raised by
the petitioner herein were solely with a view to delay the
proceedings, and the said objections have been rightly
turned down by the learned Magistrate.
11. The question which, thus, falls for consideration in the
present case is with regard to the extent of the powers of
amendment of pleadings exerciseable in proceedings under
the D.V. Act.
12. The proceedings under the D.V. Act, in the instant case,
were initiated pursuant to an application filed under
Section 12 wherein the reliefs sought are referable to the
provisions under Sections 18, 19, 20 and 22 of the said Act.
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13. The genesis of the D.V. Act is traceable to the General
Recommendation No. XII (1989) made by the United
Nations Committee on Convention of Elimination of all
Forms of Discrimination against Women (CEDAW), in
terms of which it was recommended that the State parties,
should act to protect women against violence of any kind
especially, that occurring within the family. The Vienna
Accord of 1994 and the Beijing Declaration and Platform
for Action (1995), acknowledged that domestic violence
was a human rights issue and a serious deterrent to
development.
14. The Protection from Domestic Violence Bill, 2002 upon
being tabled in the Lok Sabha was referred to a Standing
Committee of the Ministry of Human Resource
Development in the Rajya Sabha. The Committee submitted
its 124th Report on the Bill (2002), wherein it was stated
that the proposed legislation was aimed at “providing a
remedy under the civil law which is intended to preserve
the family and at the same time provide protection to
victims of domestic violence.”
15. The object of the Act was to bridge the gap between the
existing procedures in civil and criminal law by providing a
civil remedy for a complaint of domestic violence without
disrupting the harmony in the family. This is also clear from
the following extract from the Report of the Standing
Committee:
“ ...the existing civil, personal or criminal laws leave certain gaps in
addressing the issue of Domestic Violence. Under criminal law, if a
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husband perpetrates violence on his wife, she may file a complaint
under Section498 A of IPC. Similarly, under the 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 situation where
there is some disharmony in the family but the situation has not yet
reached a stage where either separation or divorce proceeding has
become inevitable and the aggrieved woman also for some reasons
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.”
16. The D.V. Act was enacted as a law (Act 43 of 2006)
with the purpose of providing a remedy in civil law for the
protection of women from being victims of domestic
violence and to protect the occurrence of domestic violence
in society. The enactment of law was made keeping in view
the rights guaranteed under Articles 14, 15 and 21 of the
Constitution and to provide for a remedy in the civil law
which is intended to protect the women from being victims
of domestic violence and to prevent the occurrence of
domestic violence in the society. The scheme of the Act
envisages that the order to be passed by the Magistrate, and
a complaint by the aggrieved person, would be of a civil
nature, and if the said order is violated, it would assume
the character of criminality. The legislative intent of the
enactment, is reflected in the statement of objects and
reasons of the Act, which reads as follows:
“STATEMENT OF OBJECTS AND REASONS”
Domestic violence is undoubtedly a human Right issue and 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
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Recommendation NO. XII (1989) has recommended that State parties
should act to protect women against violence of any kind especially
the occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has
remained largely invisible in the public domain. Presently, where a
woman is subjected to cruelty by her husband or his relatives, it is an
offence under section 498A of the Indian Penal Code. The civil law
does not however address this phenomenon in its entirety.
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 the
woman from being victims of domestic violence and to prevent the
occurrence of domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following:
(i) It covers those women who are or have been in a relationship with
the abuser where both parties have lived together in a shared
household and are related by consanguinity, marriage or through a
relationship in the nature of marriage or adoption. In addition,
relationships with family members living together as a joint family
are also included. Even those women who are sisters, widows,
mothers, single women, or living with the abuser are entitled to legal
protection under the proposed legislation. However, whereas the Bill
enables the wife or the female living in a relationship in the nature of
marriage to file a complaint under the proposed enactment against
any relative of the husband or the male partner, it does not enable
any female relative of the husband or the male partner to file a
complaint against the wife or the female partner.
(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 the 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.
(v) It provides for appointment of Protection Officers and registration
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of nongovernmental organisations as service providers for providing
assistance to the aggrieved person with respect to her medical
examination, obtaining legal aid, safe shelter, etc."
17. An 'aggrieved person' is defined under Section 2(a) of
the D.V. Act to mean any woman who is, or has been, in a
domestic relationship with the respondent and who alleges
to have been subjected to any Act of domestic violence by
the respondent. It is noticeable that the grievance of the
'aggrieved person' under the D.V. Act, is to be considered
against a 'respondent' as defined under Section 2(q) of the
Act. The grievances which may be raised and the reliefs
that may be sought under the D.V. Act, are not to be in the
nature of a formal accusation as in a criminal case, and the
person against whom the relief is sought, is therefore not
referred to as an accused.
18. The procedure for obtaining orders of reliefs are
provided under Chapter IX of the D.V. Act, and in terms
thereof the various reliefs that can be granted are as
follows: (i) protection orders under Section 18; (ii)
residence order under Section 19; (iii) monetary reliefs
under Section 20; (iv) custody orders under Section 21;
and (v) compensation orders under Section 22.
19. Amongst the various reliefs that may be claimed under
the D.V. Act, it is only the breach of a protection order, or
of an interim protection order by the respondent, that is
held to be an offence in terms of Section 31 with a penalty
specified, and in terms of Section 32, the said offence is
cognizable and nonbailable.
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20. The proceedings before a magistrate, which are to
commence with filing of an application under Section 12,
seeking various kinds of reliefs, provided for, under Chapter
IX, are essentially of a civil nature, and it is only upon
breach of a protection order, or of an interim protection
order, that the said proceedings get transformed into
criminal proceedings.
21. The breach of protection order or of an interim
protection order, is held to be an offence under Section
31(1), and Section 31(2) uses the expression 'accused' only
when an offence i.e., a breach of a protection order or of an
interim protection order is alleged to have been committed.
22. It would be seen that criminality under Section 31 is
attached only to breach of a protection order under Section
18, or of an interim protection order under Section 23
order, or under Section 33 for failure of a Protection Officer
to discharge his duties without sufficient cause.
23. The question as to whether the reliefs envisaged under
Chapter IX of the D.V. Act are of a civil nature, was
examined in Kunapareddy Alias Nookala Shanka Balaji
Vs. Kunapareddy Swarna Kumari and Another
2
, wherein
after considering the purpose of the enactment and its
scheme, it was held that the order that is to be passed by
the Magistrate on a complaint by the aggrieved person,
would be of a civil nature, and it is only when the said
order is violated that it assumes the character of
2(2016) 11 SCC 774
9
criminality. The observations made in the judgment, in this
regard, are as follows:
“12. In fact, the very purpose of enacting the DV Act was to provide for a
remedy which is an amalgamation of civil rights of the complainant i.e.
aggrieved person. 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.....
…...
13. Procedure for obtaining order of reliefs 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 protection order.
Section 19 of the DV Act authorises the Magistrate to pass 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
includes giving of the relief in respect of the loss of earnings, the 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 of civil nature. 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 of civil nature. 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.”
24. The procedure to be followed by the court in
'proceedings' under the D.V. Act, is prescribed under
Section 28 of the Act. Subsection (1) of Section 28, while
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drawing a distinction between 'proceedings' under Sections
12, 18, 19, 20, 21, 22 and 23, and 'offences' under Section
31, states that that they would be governed by the
provisions of the Cr.P.C. For ease of reference, Section 28
of the D.V. Act is being extracted below:
“Procedure.(1) Save as otherwise provided in this Act, all
proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and
offences under section 31 shall be governed by the provisions of the
Code of Criminal Procedure, 1973. (2 of 1974).
(2) Nothing in subsection (1) shall prevent the court from laying
down its own procedure for disposal of an application under section
12 or under subsection (2) of section 23.”
25. It is noticeable that Section 28(1) commences with the
expression “save as otherwise provided by this Act”, the
effect of which would be to exclude the application of the
Code in areas where the procedure has been expressly
provided under the D.V. Act or under the Protection of
Women from the Domestic Violence Rules, 2006
3
.
26. It is further noticeable that Section 28(2) begins with a
non obstante clause which empowers the court to lay down
its own procedure for disposal of an application under
Section 12 or under Section 23(2).
27. The aforesaid may be seen as exceptions to the general
rule with regard to the applicability of the provisions of the
Cr.P.C. to proceedings under the D.V. Act.
28. The 'Statement of Objects and Reasons' of the
enactment is clearly indicative that the legislature was
conscious that in a situation where a woman is subjected to
3D.V. Rules
11
cruelty by her husband or her relatives, it would be an
offence under Section 498 A of I.P.C.; however, the civil
law does not address the phenomena in its entirety. The
legislation, was, accordingly, brought in place, keeping in
view the rights guaranteed under Articles 14, 15 and 16 of
the Constitution and to provide for a remedy under the civil
law intended to protect a woman from being victim of
domestic violence and to prevent the occurrence of
domestic violence in society.
29. The procedure set out under the D.V. Act and the D.V.
Rules, is sufficiently indicative of a conscious deviation
from the manner in which a criminal court proceeds to take
cognizance, issue process and try the accused under the
provisions of the Cr.P.C. It is only in case of a breach of a
protection order or of an interim protection order, passed
under the provisions of the D.V. Act, that an element of
criminality is sought to be attached. At the stage of the
proceedings related to an application under Section 12, the
applicability of the Cr.P.C., would be seen to be
circumscribed by the provisions under Section 28 of the
D.V. Act.
30. The question as to whether a proceeding is civil or not,
was examined in State of Uttar Pradesh Vs. Mukhtar
Singh
4
and it was stated thus:
“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
4AIR 1957 All 505
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private rights that a human being or any person recognises by law as a
juristic entity might, as such, possess under law and for the recognition,
declaration or enforcement of which law makes a provision.”
31. The test to be applied for examining the character of a
proceeding before a Court or authority, and the distinction
between a 'civil proceeding' and a 'criminal proceeding',
was formulated by a Constitution Bench of the Supreme
Court in SAL Narayan Row Vs. Ishwarlal Bhagwandas
5
,
and it was held as follows:
“8. ......The expression “civil proceeding” is not defined in the Constitution,
nor in 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. 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.
“......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.”
32. The distinction between a 'civil proceeding' and a
'criminal proceeding', and the test to be applied for the
purpose was reiterated in Ram Kishan Fauji Vs. State of
Haryana and Others
6
. It was observed as follows:
31. “...... As far as criminal proceeding is concerned, it clearly stipulates that
a criminal proceeding is ordinarily one which, if carried to its conclusion,
may result in imposition of (i) sentence, and (ii) it can take within its ambit
the larger interest of the State, orders to prevent apprehended breach of
5AIR 1965 SC 1818
6(2017) 5 SCC 533
13
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.”
33. The question as to whether the nature of proceedings
under the various provisions of the D.V. Act, would be of a
civil or criminal nature, was clarified in Kunapareddy Alias
Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari
and Another, wherein referring to Section 28, it was
observed that in respect of a petition filed under Sections
18 and 20, though proceedings are to be governed by the
Cr.P.C., such proceedings, undisputedly; would be
predominantly of a civil nature. It was also observed that
all the reliefs stipulated under Chapter IV of the D.V. Act,
which comprises Sections 12 to 29 and can be granted by a
Magistrate, are of a civil nature. The observations made in
the judgment, are as follows:
“12. In fact, the very purpose of enacting the DV Act was to provide
for a remedy which is an amalgamation of civil rights of the
complainant i.e. aggrieved person. 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 498A 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.......”
13. Procedure for obtaining order of reliefs 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
protection order. Section 19 of the DV Act authorises the Magistrate
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to pass 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 includes giving of the
relief in respect of the loss of earnings, the 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 of
civil nature. 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 of civil nature. 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.
14. In the aforesaid scenario, merely because Section 28 of the DV
Act provides for that the proceedings under some of the provisions
including Sections 18 and 20 are essentially of civil nature.…...
34. The nature of proceedings instituted upon an
application under Section 12 of the D.V. Act, and whether
the filing of such application can be equated to lodging of a
complaint or initiation of prosecution, was examined in a
recent decision in Kamatchi Vs. Lakshmi Narayanan
7
and
clarifying the law on the subject it was held that the
Magistrate after hearing the parties and considering the
material on record, may pass an appropriate order under
Section 12, and only thereafter, the breach of such order
would constitute an offence as provided under Section 31;
at the time when the application under Section 12 is
preferred, no offence is committed as per the terms of the
7(2022) 15 SCC 50
15
provisions of the D.V. Act.
35. There is a marked distinction between a 'complaint'
contemplated under the D.V. Act and the D.V. Rules, and a
'complaint' under the Cr.P.C.. A complaint under Rule 2(b)
of the D.V. Rules, has been defined as an allegation made
orally or in writing by any person to a Protection Officer,
whereas a complaint under Section 2(d) Cr.P.C. is any
allegation made orally or in writing to a Magistrate with a
view to taking action under Cr.P.C. that some person
whether known or known has committed an offence. The
Magistrate dealing with an application under Section 12 is
not called upon to take action for the commission of an
offence; hence what is contemplated is not a complaint but
an application to a Magistrate as set out in Rule 6(1) of the
D.V. Rules. The filing of an application under Section 12 of
the D.V. Act, can, therefore, not be equated to the lodging
of complaint or initiation of prosecution as contemplated
under the provisions of the Cr.P.C.
36. The question as to whether an amendment would be
permissible in a criminal complaint or a petition filed under
the provisions of Cr.P.C., was examined in S.R. Sukumar
Vs. S. Sunaad Raghuram
8
, and laying down principles for
the purpose it was held that although there was no specific
provision in the Cr.P.C. to permit amendment of a
complaint or a petition, if the amendment sought to be
made related to a simple infirmity, which was curable by
means of a formal amendment and by allowing such
8 (2015) 9 SCC 609
16
amendment no prejudice would be caused to other side, the
court may permit such amendment to be made. Referring
to and earlier decision in U.P. Pollution Control Board v.
Modi Distillery
9
it was observed as follows:
“18. Insofar as merits of the contention regarding allowing of
amendment application is concerned, it is true that there is no
specific provision in the Code to amend either a complaint or a
petition filed under the provisions of the Code, but the courts have
held that the petitions seeking such amendment to correct curable
infirmities can be allowed even in respect of complaints. In U.P.
Pollution Control Board v. Modi Distillery wherein the name of the
company was wrongly mentioned in the complaint, that is, instead of
Modi Industries Ltd. the name of the company was mentioned as
Modi Distillery and the name was sought to be amended. In such
factual background, this Court has held as follows:
“6. …The learned Single Judge has focussed his attention only
on the technical flaw in the complaint and has failed to
comprehend that the flaw had occurred due to the recalcitrant
attitude of Modi Distillery and furthermore the infirmity is one
which could be easily removed by having the matter remitted
to the Chief Judicial Magistrate with a direction to call upon
the appellant to make the formal amendments to the
averments contained in Para 2 of the complaint so as to make
the controlling company of the industrial unit figure as the
accused concerned in the complaint. All that has to be done is
the making of a formal application for amendment by the
appellant for leave to amend by substituting the name of Modi
Industries Limited, the company owning the industrial unit, in
place of Modi Distillery. … Furthermore, the legal infirmity is
of such a nature which could be easily cured.”
19. What is discernible from U.P. Pollution Control Board case is that
an easily curable legal infirmity could be cured by means of a formal
application for amendment. If the amendment sought to be made
relates to a simple infirmity which is curable by means of a formal
amendment and by allowing such amendment, no prejudice could be
caused to the other side, notwithstanding the fact that there is no
enabling provision in the Code for entertaining such amendment, the
court may permit such an amendment to be made. On the contrary, if
the amendment sought to be made in the complaint does not relate
either to a curable infirmity or the same cannot be corrected by a
formal amendment or if there is likelihood of prejudice to the other
side, then the court shall not allow such amendment in the complaint.
9 (1987) 3 SCC 684
17
20. In the instant case, the amendment application was filed on 245
2007 to carry out the amendment by adding Paras 11(a) and 11(b).
Though, the proposed amendment was not a formal amendment, but
a substantial one, the Magistrate allowed the amendment application
mainly on the ground that no cognizance was taken of the complaint
before the disposal of amendment application. Firstly, the Magistrate
was yet to apply the judicial mind to the contents of the complaint
and had not taken cognizance of the matter. Secondly, since
summons was yet to be ordered to be issued to the accused, no
prejudice would be caused to the accused. Thirdly, the amendment
did not change the original nature of the complaint being one for
defamation. Fourthly, the publication of poem Khalnayakaru being in
the nature of subsequent event created a new cause of action in
favour of the respondent which could have been prosecuted by the
respondent by filing a separate complaint and therefore, to avoid
multiplicity of proceedings, the trial court allowed the amendment
application. Considering these factors which weighed in the mind of
the courts below, in our view, the High Court rightly declined to
interfere with the order passed by the Magistrate allowing the
amendment application and the impugned order does not suffer from
any serious infirmity warranting interference in exercise of
jurisdiction under Article 136 of the Constitution.”
37. The aforesaid authorities lead to the conclusion that
even in criminal cases governed by the Cr.P.C., the court is
not powerless and may allow amendment in appropriate
cases, which may be in situations where an amendment
seeks to introduce facts based on subsequent events, or to
avoid multiplicity of the proceedings. An amendment may
also be permissible if it relates to a simple infirmity which is
curable by means of a formal amendment and in allowing
such amendment no prejudice is likely to be caused to the
other side.
38. There would, thus, be no complete or absolute bar in
seeking amendment even in complaints before criminal
courts which are governed by Cr.P.C., although the power
to allow such amendment would have to be exercised with
due caution and sparingly, in appropriate circumstances.
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39. The question as to whether a court dealing with an
application filed under the D.V. Act has the power to allow
amendments to the application originally filed, was also
examined in the Kunapareddy (supra) case and after
considering the provision contained under subsection (2)
of Section 28, which empowers the court to lay down its
procedure for disposal of an application filed under Section
12 or under Section 23, it was held that the court is not
powerless in this regard and may allow amendments in
appropriate cases. This would be in situations where the
amendment becomes necessary, in view of the subsequent
events or to avoid multiplicity of litigation. It was observed
as follows:
“16. ….It cannot be said that the court dealing with the application
under the DV Act has no power and/or jurisdiction to allow the
amendment of the said application. If the amendment becomes
necessary in view of subsequent events (escalation of prices in the
instant case) or to avoid multiplicity of litigation, court will have the
power to permit such an amendment. It is said that procedure is the
handmaid of justice and is to come to the aid of the justice rather
than defeating it. It is nobody's case that Respondent 1 was not
entitled to file another application claiming the reliefs which she
sought to include in the pending application by way of amendment. If
that be so, we see no reason, why the applicant be not allowed to
incorporate this amendment in the pending application rather than
filing a separate application.....
17. What we are emphasising is that even in criminal cases governed
by the Code, the Court is not powerless and may allow amendment in
appropriate cases. One of the circumstances where such an
amendment is to be allowed is to avoid the multiplicity of the
proceedings. The argument of the learned counsel for the appellant,
therefore, that there is no power of amendment has to be negated.
18. In this context, provisions of SubSection(2) of Section 28 of the
DV Act gain significance. Whereas proceedings under certain sections
of the DV Act as specified in subSection (1) of Section 28 are to be
governed by the Code, the Legislature at the same time incorporated
the provisions like subSection(2) as well which empowers the Court
to lay down its own procedure for disposal of the application under
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Section 12 or Section 23(2) of the DV Act. This provision has been
incorporated by the Legislature keeping a definite purpose in mind.
Under Section 12, an application can be made to a Magistrate by an
aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person to claim one or more reliefs under the
said Act. Section 23 deals with the power of the Magistrate to grant
interim and exparte orders and subSection (2) of Section 23 is a
special provision carved out in this behalf which is as follows:
“23. (2).If the Magistrate is satisfied that an application prima
facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a
likelihood that the respondent may commit an act of domestic
violence, he may grant an ex parte order on the basis of the
affidavit in such form, as may be prescribed, of the aggrieved
person under section 18, section 19. section 20, section 21 or,
as the case may be, section 22 against the respondent.”
19. The reliefs that can be granted by the final order or by an
interim order, have already been pointed out above wherein it
is noticed that most of these reliefs are of civil nature. If the
power to amend the complaint/application, etc. is not read
into the aforesaid provision, the very purpose which the Act
attempts to subserve itself may be defeated in many cases.”
40. The proceedings before the Magistrate relating to reliefs
claimed under Chapter IV of the D.V. Act, having been held
essentially to be of a civil nature, the power to amend the
complaint/application would have to be read in relevant
statutory provisions, as a necessary concomitant.
41. Having regard to the aforesaid, the contention sought
to be raised on behalf of the petitioner that the Magistrate
before whom the application under Section 12 of the D.V.
Act, was pending, did not have the jurisdiction or the
power to allow the application seeking amendment in the
relief clause of the original application, cannot be legally
sustained.
42. The order passed by the learned Magistrate allowing
the amendment application, and the subsequent order of
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affirmation by the revisional court, cannot be said to suffer
from any illegality, which may warrant interference by this
Court, in exercise of its supervisory power, under Article
227 of the Constitution.
43. The petition thus fails and is accordingly dismissed.
Order Date : 14.5.2024
Arun K. Singh
[Dr. Y.K. Srivastava, J.]
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