Tuesday, May 26, 2009

HC: Cognizance under DV Act taken for period before 26-10-06 is illegal

Smt.Gita vs Smt.Raj Bala & Others on 26 November, 2008


Punjab-Haryana High Court Criminal Misc.-M No.47145 of 2007 :1 :

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH


DATE OF DECISION: November 26, 2008



Smt.Gita

.....Petitioner

VERSUS



Smt.Raj Bala & others

....Respondents



CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?



PRESENT: Mr.Manoj Kaushik, Advocate,
for the petitioner.

Mr.Rohit Ahuja, Advocate,
for respondent No.1.

****

RANJIT SINGH, J.

Smt.Gita seeks quashing of notice/summoning order

dated 19.7.2006 passed by ACJM, Faridabad. She is a married

sister-in-law of the complainant and is separately residing at her

matrimonial home at Palwal, but is summoned to face prosecution

under the provisions of Protection of Women from Domestic Violence

Act, 2005. (for short "the Act").

The primary submission made on behalf of the petitioner
Criminal Misc.-M No.47145 of 2007 :2 :

is that she has wrongly and illegally been summoned for an offence

under the provisions of the Act, which was not even applicable on the

date the cognizance of the offence was taken. It is accordingly

pleaded that ACJM, Faridabad erred in taking cognizance of the

offence which was not an offence on the date he took cognizance of

the same.

The averment in the petition would show that the Act was

notified and came into effect w.e.f. 26.10.2006. The Magistrate,

however, has summoned the petitioner and his co-accused on

19.7.2006. The petitioner and her co-accused were summoned for

offences under Sections 12, 19, 20, 21, 22 and 23 of the Act. This is

stated to be an illegality as on 19.7.2006, the Act was not in force

and hence the so-called alleged offences under the Act, as noticed,

were not the offences on the Statute Book. Though other

submissions on merits have also been made, but need not be

noticed. The fact that this Act is enforced w.e.f. 26.10.2006 is not in

any serious dispute. Section 1(3) of the Act provides that the Act

shall come into force on such date as the Central Government may

by notification in the official Gazette appoint. The Central

Government has appointed 26 day of October, 2006 as the date on

which the said Act shall come into force as per Notification

No.S.O.1776(E) dated 17th October, 2006. It is, thus, clear that the

Act came into force w.e.f.26.10.2006. The learned counsel for

respondent No.1 did not dispute this factual position, but still insisted

in submitting that the Magistrate had rightly taken cognizance of

offence in this case as the Act is of the year 2005, i.e., prior to the

date, the Magistrate took cognizance on 19.7.2006. Without much
Criminal Misc.-M No.47145 of 2007 :3 :

justification, the counsel referred to a case of Pt.Rishikesh & Anr.

Vs. Smt.Salma Begum, 1995(3) RRR 429 in support of his plea. In

this case, the Hon'ble Supreme Court has observed that the

commencement of the Act is distinct from making the law. As per the

Hon'ble Supreme Court, as soon as the assent is given by the

President to the law passed by the Parliament it becomes law and

the commencement of the Act may be expressed in the Act itself,

namely, from the moment the assent was given by the President and

published in the Gazette, it becomes operative. However, it is also

observed that the operation may be postponed giving power to the

executive or delegated legislation to bring the Act into force at a

particular time unless otherwise provided. It is not understood as to

how this ratio of law would benefit the plea raised by the counsel for

the respondents. As already noticed, it is clearly provided in the Act

that it shall come into force on such date as the Central Government

may by notification in the official Gazette appoint. This Act came into

force on 26.10.2006, as already noticed. Thus, the legislature had

given power to the Central Government, delegated authority to notify

the date from which the Act was to come into force. This course is

permissible in terms of the law laid down in Pt.Rishikesh's case

(supra). There is no need, thus, to pursue further the argument

raised by the counsel for the respondent that the Act is of 2005 and,

so the Magistrate could take cognizance on 19.7.2006. This, if

permitted would violate the provisions of Article 20 of Constitution of

India. Article 20 grants protection in respect of conviction for

offences by providing that no person shall be convicted of any

offence except for violation of law in force at the time of the
Criminal Misc.-M No.47145 of 2007 :4 :

commission of the act charged as an offence. As per this Article,

when a certain act is not an offence according to law in force at the

time when the act is done, the person who does that act must not be

held guilty of an offence merely because subsequently a law is made

making such act an offence. When the petitioner is alleged to have

committed the offences under various sections of the Domestic

Violence Act, which is not in force on the date of such acts, then the

charge framed under the said sections would not be maintainable in

view of Art. 20(1) of the Constitution as the said penal provisions

were not in existence when the alleged offences were committed. In

fact, there was no law in force at the time when the petitioner

allegedly committed these acts and, therefore, would be entitled to

the protection of Art.20(1) of the Constitution. Once the Act came

into operation on 26.10.2006, the various provisions of the Act

creating offences would not be an offences for which the petitioner

can be put to trial. The action of the court in taking cognizance on the

basis of this complaint on 19.7.2006, as such, cannot be sustained.

The summoning order, thus, cannot be sustained and the same is

set-aside.

The petition is allowed.



November 26, 2008 ( RANJIT SINGH )
ramesh JUDGE

documents ref:
The Protection Of Women From Domestic Violence Act, 2005
Article 20 in The Constitution Of India 1949
Section 12 in The Protection Of Women From Domestic Violence Act, 2005
Section 23 in The Protection Of Women From Domestic Violence Act, 2005
Section 19 in The Protection Of Women From Domestic Violence Act, 2005

3 comments:

Swarup said...

Article 20 Protection in respect of conviction for offenses
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.

Article 21 Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.

Victim said...

AP HC Order on same lines:
Criminal Petition No.: 3714 of 2007

For search try using:
THE HON’BLE SRI JUSTICE K.C. BHANU
CRL. P. NO : 3714 of 2007

Dipak said...

Dear Sir/Madam,
We got Married 05/03/2002, and have a daughter born 09/07/2005. My wife and she’s family given me 498a/34 IPC, FIR NO.276, date 31/08/2009, P.S.: BAGUIATI, it’s not true case, believe me. My wife are engaged/Affair with a boy (Sandip Samanta, S/O. Shankar Kumar Samanta S.B.I. Manager) his house front of my house, all the matters are know every person in my village, and also they given me written about my character. When my wife goes outside form my house near about many vory gold and cash 1.20 lack Indian rupees taken. Not taken my daughter, daughter is now in my house. My wife doing the 498a case’s date 31/08/2009 and I arrest 06/09/2009, court give me bail at 19/09/2009 my 1st court date is 16/10/2009 done. 2nd court date is 04/01/2010 done. Next court date is 07/07/2010 at Barasat court. Some proof (20 pcs. s.m.s., picture with the boy and a c.d.) has me about my wife and the boy that they are in illegal relation. Believe me I and my family love much more to my wife. They (My wife family) are very very poor and live in a bosti Address: 70/H/8 Manicktolla Main Road, Kolkata – 700054, Beside 5 Star Club, my mother see 1st time and she arrange my marriage, and Mother told me they are very poor so what? After marriage she is my family member, believe me not a single word is wrong. Before marriage my family not see my wife’s family, now we understand/also see that she’s family are very bad. My wife, she’s family and the boy they are misusing this law. Now my wife’s family understands all the affair matter. But my wife still now not agree she wants to marry to the boy. My wife left our only solitary daughter to me who is 4 years old having severe "Ashtama Disease, depends on INHEALER, here political Hide & seek game is going on & the father of the parents (THE FATHER OF THE BOY WHO HAS ILLICIT RELATIONS WITH MY WIFE) are rich, so they are spending money to everywhere with a view to be escaped. Now I decided that I’m not taken back my wife. I take a lawyer his name Mr. Kamelash Nandi. I don’t know what happened next? Now I went to punishment the boy. If possible please help me. Please investigate the matter and relief/save me and my family. And . My wife given me U/s. 125 Cr. P. C. Case NO.167/2009, date 16/12/2009. 1st Class Judicial Magistrate at Sealdah. 1st court date is 15/01/2010 done, 2nd court date is 12/02/2010 done. Next court date is 26/02/2010.
Thanks
Dear Sir/Madam,
Actually I’m 100 percent victim, so I went to knowing my matter all the Indian and others. I write my matter to our local P.S., Local Councilor, all M.P., M.L.A., Minister in W.B, C.M. in W.B., CBI in W.B, CID in W.B, Governor in W.B, and President in India. P.M. in India, Human rights department, AAP KI KACHEHRI – KIRAN KE SAATH, Kolkata Police, my nation, all of the news channels, and all press, and many more, (anybody can’t help me/proper investigation) absolutely you also, I think you can help me, so I write to you. I’m Punishment + harassment Without Crime.

With kindest regards,
Dipak Kumar Adhikari
Tegharia(Dhali Para),NandanKanan. P.S.: Baguiati.
P.O. Hatiara. Kolkata-700059 Email: dipakadhikari_59@yahoo.com PH. 9836149983
W.B. India.