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High Court Cannot Exercise Power Under Section 482 CrPC due to existing Remedy Of Statutory Appeal Under Section 29 Of Domestic Violence Act: Delhi HC
Firstly, section 482 of CrPC states, Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
And section 29 of Domestic Violence Act states, 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.
A Single Judge Bench of Justice Jyoti Singh gave this judgement last week. The HC held that due to lack of convincing reasons, the Court cannot exercise its extraordinary power under Section 482 of the Code of Criminal Procedure (CrPC) when there is a remedy of appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005.
"Preliminary objection of the Respondent has given rise to a neat legal nodus before this Court being the maintainability of a Petition under Section 482 Cr.PC, when an alternate remedy of a Statutory Appeal under Section 29 of the Act is available to the Petitioner. Reading the provisions of the Act shows that under the Scheme of the Act, Section 29 provides for an Appeal to the Court of Sessions within 30 days from the date on which the Order made by the Learned Metropolitan Magistrate is served on the aggrieved person or the Respondent, as the case may be, whichever is later", Justice Jyoti Singh noted.
The petitioner, the Wife had filed a complaint under the Protection of Women from Domestic Violence Act, 2005 in march 2020 before the Trial Court against the respondent, the Husband. The complaint sought various reliefs under section 18 and 21 of the Act. With this complaint the petitioner also filed an Application under Section 23 of the Act for grant of various interim reliefs, including the temporary custody of the children.
On 20.04.2020, Petitioner had filed a pliant under Section 482 Cr.PC before Hon'ble High Court. The court observed that if not physically then through video conferencing the mother should be given undisturbed access to her children. Accordingly order was passed in the mentioned petition, by which an interim arrangement was arrived at, giving the Petitioner the right to interact with the children through skype, etc.
The Magistrate ultimately ordered that the custody of the children would continue to remain with the Respondent-husband and, as an interim measure, granted visitation rights to the Petitioner-wife. The wife went on to file another petition under Section 482 Cr.PC against the order of the learned Magistrate.
The respondent raised an objection against this petition and said in the view of statutory remedy of an Appeal under Section 29 of Protection of Women of the Domestic Violence Act, the present petition was not maintainable. "It is not open to the aggrieved party to bypass the remedy of Appeal under the Act, which is a complete Code in itself."
After completely reading several SC judgments, Justice Singh said that the court from time to time has laid constraints on use of extraordinary powers and observed that High Courts should not go beyond them until circumstances demand immediate and timely judicial mandate.
As the quoted in one of the judgments "Mentor of law is justice and a potent drug should be judicially administered."
She observed that Courts have imposed self limitations for exercise of the power when there are specific provisions of alternative remedies, but exceptions are allowed in compelling circumstances.
She repeatedly stated that in the present case, the court is not induced by its facts and does not see the need to act in its extraordinary powers when there is already a remedy of appeal available under section 29 of the Act. The judge further said that the petitioner has not proved any reason as to why the court should take a divergent view.
Rejecting that Petitioner-wife's contention that "..the remedy of appeal was not efficacious", the Court stated,
"Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all 'orders' and has not made any exception to orders relating to custody. Secondly, it is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts."
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