In a crucial legal development, the Allahabad High Court has referred significant questions regarding the maintainability of applications under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (corresponding to Section 482 CrPC) in proceedings under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) to a larger bench. This decision comes in light of conflicting judgments by coordinate benches on whether inherent powers under Section 528 BNSS/Section 482 CrPC can be invoked to quash proceedings under the D.V. Act, particularly at the notice stage.
The ruling was delivered by Justice Om Prakash Shukla in Application U/S 482 No. 8107 of 2022, filed by Ram Lotan Vishwakarma and others, who sought to quash proceedings initiated against them under the D.V. Act.
Conflicting Judicial Stances
Justice Om Prakash Shukla took note of diverging rulings from coordinate benches of the Allahabad High Court:
- In Smt. Suman Mishra Vs. State of U.P., the court ruled that an application under Section 482 CrPC was not maintainable to challenge the issuance of a notice under the D.V. Act, relying on Kamatchi Vs. Laxmi Narayanan (2022) 15 SCC 50.
- However, in Devendra Agarwal & 3 Others Vs. State of U.P., another bench disagreed, holding that an application under Section 482 CrPC was maintainable and declared the Suman Mishra ruling per incuriam.
To resolve this confusion, the court referred the matter to a larger bench to settle the issue authoritatively.
Key Observations of the Court
1. Conflicting Precedents Necessitate Reference to Larger Bench
Justice Om Prakash Shukla observed that the conflicting interpretations by different coordinate benches were leading to legal uncertainty. He noted:
“It was not open on the part of a Bench of co-equal strength to decide whether the judgment of another coordinate bench was per incuriam without referring the matter to a larger bench.”
The court held that it was imperative to refer the issue for authoritative determination to ensure clarity, consistency, and uniformity in legal proceedings under the D.V. Act.
2. Fundamental Question on the Scope of Section 528 BNSS/482 CrPC
The court extensively discussed whether inherent powers under Section 528 BNSS (formerly 482 CrPC) could be invoked against all proceedings under the Domestic Violence Act.
It noted that in Suman Mishra’s case, the Madras High Court’s ruling in Dr. P. Pathmanathan Vs. Monica (2021) and the Supreme Court’s judgment in Kamatchi had held that proceedings under Section 12 of the D.V. Act are civil in nature. Therefore, CrPC provisions cannot be applied to quash such proceedings at the notice stage.
However, the bench in Devendra Agarwal disagreed, stating that inherent powers under Section 482 CrPC could still be exercised.
To resolve this legal conflict, the court framed the following seven key legal questions for a larger bench:
Key Legal Questions Referred to Larger Bench
- Whether it was open for the learned Single Judge in Devendra Agarwal to declare the judgment of a Co-ordinate Bench as per incuriam, rather than refer its correctness to a larger Bench?
- Whether for the purpose of seeking quashing of proceedings filed under Section 12 of the D.V. Act, at the stage of issuance of notice, the remedy is under Section 482 CrPC (now Section 528 BNSS) and/or under Article 226/227 of the Constitution of India?
- Whether Section 528 BNSS (corresponding to Section 482 CrPC) can be invoked and/or is maintainable against any and all proceedings under the provisions of the Domestic Violence Act, 2005, in view of the decision of the Apex Court in the case of Kamatchi Vs. Laxmi Narayanan (2022 SCC Online SC 446)?
- Whether the judgment rendered in the case of Devendra Agarwal and 3 others Vs. State of U.P. and another lays down the law correctly on the issue of maintainability of an application/petition under Section 482 CrPC for quashing of the proceedings under Section 12 of the D.V. Act at the stage of issuance of notice, or whether it is the judgment in Smt. Suman Mishra’s case that lays down the law correctly?
- Whether a notice issued by the Protection Officer for conducting a preliminary enquiry pursuant to a direction by the Magistrate under Section 12 of the D.V. Act, 2005 is amenable to Section 528 BNSS (erstwhile Section 482 CrPC) or other proceedings like Article 226 or 227 of the Constitution of India?
- Whether a Co-ordinate Bench of a High Court can frame an issue without considering the factum of another case rendered by another Co-ordinate Bench and hold a Judgment per incuriam of another Co-ordinate Bench of equal strength, without first expressing its own view and then referring both the earlier Judgment and its own view, to a larger Bench, for reconciliation and restating the law for clarity, consistency and certainty?
- Whether the principle of stare decisis should be followed by a Co-ordinate Bench of equal strength and is to be respected and binding subject to right of the Bench of such co-equal quorum to take a different view and refer the question to a larger Bench?
Final Decision and Interim Relief
1. Reference to Larger Bench
The court directed that these questions be placed before the Chief Justice of the Allahabad High Court for constitution of an appropriate larger bench.
2. Interim Relief for Applicants
Recognizing that the reference process might take time, the court granted interim relief to the applicants. It ruled that:
“In case the applicants move an application for adjournment before the trial court, the trial court shall adjourn the case till the final outcome of the reference.”
