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
Tuesday, May 26, 2009
HC: Cognizance under DV Act taken for period before 26-10-06 is illegal
Labels:
DV Act 2005
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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.
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
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.
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