DV act cannot be retrospective -AP HC

Summary: 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 commission of the ac 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.

How to use these judgments: Use these judgments to quash or for dismissal of DV case, if the complaint under DV Act contains all acts of domestic violence prior to the date 26.10.2006 without anyone of them after this date. Suppose, your wife is living away from you or matrimonial home before this date, also you have no contact with her since then and she filed DV for the acts of Domestic violence before this date you can use this judgment asiIt is a fundamental principle of law that any penal provision has no retrospective operation but only prospective means if a law was not in operation or enacted  at the time of occurrence of an offence, the accused cannot be proceeded against under that law.

Full Judgment:

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 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 17 th October, 2006. It is, thus, clear that the Act came into forcew.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 justification, the counsel referred to a case of Pt.Rishikesh & Anr. Vs. Smt.Salma Begum, 1995(3) RRR 429in 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 commission of the ac 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 )

JUDGE
kkd

Thanks for posting the Judgment.

THANKS FOR POSTING THE JUDGEMENT.