A single judge of Karnataka High Court held that, an offence under the PWDV Act alone is subject to limitation under CrPC but not the application filed belatedly u/s 12 of the Act.
From Paras 16-17,
16. To attract Section 468 of Cr.P.C, essentially the Act alleged must be an offence. Under the DV Act, the offence is not defined, as defined in Section 40 of IPC. Therefore, we have to revert to the General Clauses Act, 1897. Section 3(38) of the General Clauses Act defines the offences as follows:
“3(38). “Offence” shall mean any act or omission made punishable by any law for the time being in force.
17. Perusal of the above provision makes it clear that to call an act as offence, act or omission must be made punishable under law. As already pointed out, under Sections 12, 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed.
From Para 19-20, Conclusions
19. Perusal of Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. As held by Punjab High Court in Vikas’s case referred to supra, Section 12 of the DV Act is only enabling provision. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence.
20. When the application under Section 12 of the DV Act is not covered under the term ‘offence’, Section 468 of Cr.P.C. is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception.
From Paras 24-26,
24. Distinguishing judgment in Inderjit Singh Grewal’s case, the Hon’ble Supreme Court in subsequent judgment in Krishna Bhattacharjee’s case referred to supra held that the observation regarding domestic relationship in Inderjit Singh Grewal’s case were based on the facts and circumstances of the said case and they are not of general application.
25. Further in para 32 of the judgment in Krishna Bhattacharjee’s case referred to supra, the Hon’ble Supreme Court held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts the term ‘continuing offence’, therefore does not get time barred.
26. In the judgments of the Hon’ble Supreme Court referred to above, the interplay of Section 3(38) of the General Clauses Act, Section 31 of the DV Act and Section 468 of Cr.P.C. had not fallen for consideration. In view of the later judgment of the Hon’ble Supreme Court in Krishna Bhattacharjee’s case referred to supra the judgments of this Court in Srinivas’s case and Gurudev’s case cannot be followed. Therefore this Court does not find any merit in the contention that the petition was time barred. Under the circumstances the respondent is entitled for withdrawal of the amount. The application is allowed.
Citations :
Other Sources :
https://primelegal.in/2021/05/20/an-application-under-section-12-of-the-domestic-violence-act-is-not-barred-by-the-limitations-set-out-in-section-468-of-the-criminal-procedure-code-karnataka-high-court/
https://www.indiclegal.com/post/application-of-section-468-to-section-12-of-the-domestic-violence-act-is-clearly-a-misconception-hc
https://www.lawyersclubindia.com/judiciary/sri-puttaraju-vs-smt-shivakumari-5216.asp
