important questions of law pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Act, 2005”).whether the appellant had made any unambiguous admission about the respondent’s ownership rights in respect of the suit premises; if she has and her only defence to being dispossessed there from is her right of residence under the DV Act, then the Trial Court shall, before passing a decree of possession on the wife premise of ownership rights, ensure that in view of the subsisting rights of the appellant under the DV Act, she is provided with an alternate accommodation as per Section 19(1)(f) of the DV Act, which will continue to be provided to her till the subsistence of her matrimonial relationship.

important questions of law pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Act, 2005”). whether the appellant had made any unambiguous admission about the respondent’s ownership rights in respect of the suit premises; if she has and her only defence to being dispossessed there  from is her right of residence under the DV Act, then the Trial Court shall, before passing a decree of possession on the wife premise of ownership rights, ensure that in view of the subsisting rights of the appellant under the DV Act, she is provided with an alternate accommodation as per Section 19(1)(f) of the DV Act, which will continue to be provided to her till the subsistence of her matrimonial relationship. =

The appellant filed a Suit No.792/2017 impleading the respondent as sole-defendant for mandatory and permanent injunction and also for recovery of damages/mesne profit. Plaintiff’s case in the suit was that he is a senior citizen of 76 years old, the defendant is in occupation of two bed rooms with attached dressing and bath rooms and a kitchen on the first floor of the property bearing No. D-1077, New Friends Colony, New Delhi. Plaintiff pleaded that he is a heart patient and has undergone angioplasty twice and suffers from hypertension and high blood pressure. Plaintiff pleads that the defendant has filed false and frivolous cases against the plaintiff and his wife and hence he prays for removal of the defendant from the 5 suit property so as he may live peaceful life. Plaintiff further pleaded that the plaintiff acquired the house from the previous owner, namely, Kulbhushan Jain on 12.01.1983. He also pleaded that the property has been converted into free hold vide conveyance deed executed in his favour dated 14.07.2003 which is registered. Plaintiff pleaded that his elder son was married with the defendant on 04.03.1995. The plaintiff further pleaded that wife of the plaintiff has been subjected to various threats and violence in the hands of the defendant on several occasions. The mention of the Divorce Petition filed by Raveen was made in the plaint and it was pleaded that the defendant as a counter blast has filed the complaint case under the Protection of Women from Domestic Violence Act, 2005 in which interim order directing the plaintiff not to alienate and not to dispossess the defendant without order of the competent court has been passed.

The defendant also referred to filing of complaint case under section 12 of Act, 2005. The defendant claimed that the suit property is a shared household as per provision of Section 2(s) of the Act, 2005, the defendant has right to stay/reside in the shared household. The plaintiff has filed suit in the 8 collusion of his son Raveen Ahuja to deprive the legal right of the residence of the defendant and her daughters in the suit property.

 Plaintiff filed an application under Order XII Rule 6 CPC on 05.01.2018 read with Section 151 CPC for passing a decree on the basis of admissions made by the defendant in the application under Section 12 of Act, 2005. Plaintiff pleaded that property in question is self-acquired property of the plaintiff by agreement to sell dated 12.01.1983 followed by a registered conveyance deed dated 14.07.2003. The defendant has herself in her pleadings filed in the domestic violence 9 case admitted the plaintiff to be the owner of the suit property, hence, decree of mandatory injunction in favour of the plaintiff be granted.

The Trial Court proceeded to decide the application under Order XII Rule 6 CPC filed by the plaintiff. By judgment dated 08.04.2019 Trial Court decreed the suit in the following manner: “26. In the light of aforesaid discussion and the observations, this Court is of the considered opinion that there are sufficient admission to pass a decree in favour of the plaintiff. Consequently, suit of the plaintiff is decreed for the relief of mandatory and permanent injunction as prayed for. The defendant is directed to hand over the vacant and physical possession of the suit property to the plaintiff within 15 days. At the time of announcement of the order, this Court asked plaintiff whether he wants to pursue his suit for the relief of damages to which he agreed to waive off the said relief. Accordingly, statement of the plaintiff was also recorded to this effect. Accordingly, the relief of damages stands withdrawn. Decree sheet be prepared for the relief of permanent and mandatory injunction accordingly. There is no order as to costs. File be consigned to record room. As requested, copy of this judgment be given dasti. 

The High Court opined that the Trial Court erroneously proceeded to pass decree under Order XII Rule 6 CPC by not impleading the husband and failing to appreciate the specific submission of the appellant while admitting the title of the respondent that the suit premises was the joint family property but also losing the site of the DV Act. The directions given by the High Court are contained in the paragraph 56 to the following effect: “56. In these circumstances, the impugned judgments cannot be sustained and are accordingly set aside. The matters are remanded back to the Trial Court for fresh adjudication in accordance with the directions given hereinbelow: (i)At the first instance, in all cases where the respondent’s son/the appellant’s husband has not been impleaded, the Trial Court shall direct his impleadment by invoking its suo motu powers under Order I Rule 10 CPC. (ii) The Trial Court will then consider whether the appellant had made any unambiguous admission about the respondent’s ownership rights in respect of the suit premises; if she has and her only defence to being dispossessed there  from is her right of residence under the DV Act, then the Trial Court shall, before passing a decree of possession on the wife premise of ownership rights, ensure that in view of the subsisting rights of the appellant under the DV Act, she is provided with an alternate accommodation as per Section 19(1)(f) of the DV Act, which will continue to be provided to her till the subsistence of her matrimonial relationship. (iii) In cases where the appellant specifically disputes the exclusive ownership rights of the respondents over the suit premises notwithstanding the title documents in their favour, the Trial Court, while granting her an opportunity to lead evidence in support of her claim, will be entitled to pass interim orders on applications moved by the respondents, directing the appellant to vacate the suit premises subject to the provision of a suitable alternate accommodation to her under Section 19(1)(f) of the DV Act, which direction would also be subject to the final outcome of the suit. (iv) While determining as to whether the appellant’s husband or the in-laws bears the responsibility of providing such alternate accommodation to the appellant, if any, the Trial Court may be guided by paragraph 46 of 15 the decision in Vinay Verma (supra). (v) The Trial Court shall ensure that adequate safeguards are put in place to ensure that the direction for alternate accommodation is not rendered meaningless and that a shelter is duly secured for the appellant, during the subsistence of her matrimonial relationship. (vi) This exercise of directing the appellant to vacate the suit premises by granting her alternate accommodation will be completed expeditiously and not later than 6 months from today.”We may notice a judgment of Madras High Court in K. Subramani Vs. Director of Animal Husbandry, Chennai, (2009) 1 MLJ 363 where Madras High Court has made following observations in

paragraph 7:-“7. A decision of the Criminal Court does not have the effect of binding nature on the

proceedings before the Civil Court including the Motor Accident Claims Tribunal for the

reason that the proof in both the Civil and Criminal cases are having two different categories of standards. In criminal cases, guilt of the accused must be proved beyond reasonable doubt, while in civil cases, the

rights of the parties or matter in issue shall be decided on preponderance of probabilities. If a party to the case relies upon a decision of the criminal Court and insists the Civil Court to give credence to the said decision, it is incumbent upon the party to gather further materials in the case, which would support the

observations and the decisions of the criminal Court. If any material is available in the case, which would corroborate or strengthen the decision of the criminal Court, then, there is no embargo for the Civil Court to place reliance upon it.”

We are in full agreement with the above view. There is no embargo in referring to or relying on an

admissible evidence, be of a civil court or criminal court both in civil or criminal proceedings.

From the above discussions, we arrive at following conclusions:-

(i) The pendency of proceedings under Act, 2005

or any order interim or final passed under

D.V. Act under Section 19 regarding right of

residence is not an embargo for initiating

or continuing any civil proceedings, which

relate to the subject matter of order interim or final passed in proceedings under

D.V. Act, 2005.

(ii) The judgment or order of criminal court

granting an interim or final relief under

Section 19 of D.V. Act, 2005 are relevant

within the meaning of Section 43 of the Evidence Act and can be referred to and looked

into by the civil court.

(iii) A civil court is to determine the issues in

civil proceedings on the basis of evidence,

which has been led by the parties before the

civil court.

(iv) In the facts of the present case, suit filed

in civil court for mandatory and permanent

injunction was fully maintainable and the

issues raised by the appellant as well as by

the defendant claiming a right under Section

19 were to be addressed and decided on the

basis of evidence, which is led by the parties in the suit.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2483 of 2020

(Arising out of SLP(C)No.1048 of 2020)

SATISH CHANDER AHUJA ...APPELLANT(S)

VERSUS

SNEHA AHUJA ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. This appeal raises important questions of law

pertaining to the interpretation and working of the

Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as “Act, 2005”).

3. This appeal has been filed by Satish Chander Ahuja,

the plaintiff questioning the judgment of Delhi High

Court dated 18.12.2019 in RFA No.381/2019 by which

judgment Delhi High Court has set aside the decree

granted in favour of the plaintiff dated 08.04.2019

2

under Order XII Rule 6 of Civil Procedure Code,

decreeing the suit filed by the plaintiff for mandatory

and permanent injunction. The High Court after setting

aside the decree of the Trial Court has remanded the

matter back to the Trial Court for fresh adjudication

in accordance with the directions given by the High

Court. The plaintiff aggrieved by the judgment of the

High Court has come up in this appeal.

4. We may notice the brief facts of the case and

relevant pleadings of the parties for determining the

questions which have arisen for consideration in this

appeal.

5. The appellant by deed dated 12.01.1983 purchased

property bearing No.D-1077, New Friends Colony, New

Delhi. The son of the appellant, Raveen Ahuja was

married to the respondent, Sneha Ahuja on 04.03.1995.

After marriage the respondent started living in the

first floor of the house No.D-1077, Friends Colony, New

Delhi along with her husband. There being marital

3

discord between Raveen and Sneha, in July, 2014, Raveen

moved out of the first floor and started staying in the

guest room of the ground floor. In the year 2004 a

separate kitchen was started by the respondent in the

first floor of the house. Raveen, the husband of the

respondent filed a Divorce Petition on 28.11.2014 under

Section 13(1)(ia) and (iii) of Hindu Marriage Act, 1955

for decree of divorce on the ground of cruelty against

the respondent, Sneha Ahuja which proceeding is said to

be still pending. The respondent, Sneha Ahuja, on

20.11.2015, i.e., after filing of the Divorce Petition,

filed an application under Section 12 of Act, 2005

impleading Raveen Ahuja as respondent No.1, Shri Satish

Ahuja, respondent No.2 and Dr. Prem Kanta Ahuja(motherin-law of the respondent), respondent No.3. In the

complaint it was alleged that Sneha Ahuja has been

subjected to severe emotional and mental abuse by the

respondents. In the application respondent prayed for

several orders under Act, 2005. The learned Chief

Metropolitan Magistrate before whom the complaint was

4

filed passed an interim order on 26.11.2016 to the

following effect:

“The respondents shall not alienate the

alleged shared household nor would they

dispossess the complainant or their children

from the same without Orders of a Competent

Court. These directions shall continue till

next date.”

6. The appellant filed a Suit No.792/2017 impleading

the respondent as sole-defendant for mandatory and

permanent injunction and also for recovery of

damages/mesne profit. Plaintiff’s case in the suit was

that he is a senior citizen of 76 years old, the

defendant is in occupation of two bed rooms with

attached dressing and bath rooms and a kitchen on the

first floor of the property bearing No. D-1077, New

Friends Colony, New Delhi. Plaintiff pleaded that he is

a heart patient and has undergone angioplasty twice and

suffers from hypertension and high blood pressure.

Plaintiff pleads that the defendant has filed false and

frivolous cases against the plaintiff and his wife and

hence he prays for removal of the defendant from the

5

suit property so as he may live peaceful life.

Plaintiff further pleaded that the plaintiff acquired

the house from the previous owner, namely, Kulbhushan

Jain on 12.01.1983. He also pleaded that the property

has been converted into free hold vide conveyance deed

executed in his favour dated 14.07.2003 which is

registered. Plaintiff pleaded that his elder son was

married with the defendant on 04.03.1995. The plaintiff

further pleaded that wife of the plaintiff has been

subjected to various threats and violence in the hands

of the defendant on several occasions. The mention of

the Divorce Petition filed by Raveen was made in the

plaint and it was pleaded that the defendant as a

counter blast has filed the complaint case under the

Protection of Women from Domestic Violence Act, 2005 in

which interim order directing the plaintiff not to

alienate and not to dispossess the defendant without

order of the competent court has been passed. 

6

7. Plaintiff claimed that he and his wife has become

victim of domestic violence on the part of the

defendant. Plaintiff pleaded that the status of

occupation of defendant as a daughter-in-law during

subsistence of marriage with the son could be said to

be permissive in nature and defendant is not entitled

to claim a right of residence against the plaintiff,

i.e., her father-in-law who has no obligation to

maintain her during the lifetime of her husband.

Plaintiff in the suit prayed for decree for mandatory

injunction against the defendant to remove herself and

her belonging from the first floor of the property and

a decree of permanent injunction in favour of the

plaintiff and against the defendant thereby restraining

the defendants, her agents, employees, representatives,

etc. from in any manner creating interference or

obstruction of the right of the plaintiff in the suit

property and restrain her from causing interference in

the peaceful occupation of the plaintiff in the ground

floor of the property. Decree of recovery of

7

damages/mesne profit was also asked for the use and

occupation of the suit property of Rs.1 lac from the

date of filing of the suit till the defendant is

removed from the suit property.

8. A written statement was filed by the defendant

pleading that house property was acquired by the

plaintiff through joint family funds and not his selfacquired property. It was pleaded in the written

statement that the plaintiff has suppressed the true

and material facts regarding causing physical and

mental torture to the defendant on account of domestic

violence etc. by the plaintiff, his wife and their

elder son.

9. The defendant also referred to filing of complaint

case under section 12 of Act, 2005. The defendant

claimed that the suit property is a shared household as

per provision of Section 2(s) of the Act, 2005, the

defendant has right to stay/reside in the shared

household. The plaintiff has filed suit in the

8

collusion of his son Raveen Ahuja to deprive the legal

right of the residence of the defendant and her

daughters in the suit property. It was pleaded further

that the defendant has been subjected to severe

emotional and mental abuse by the plaintiff, his wife

and their elder son. The defendant further pleads that

since marriage defendant is staying in the shared

household of the first floor which is a matrimonial

home of the defendant. The interim order passed in

complaint case dated 16.07.2016 and 26.11.2016 has been

also referred to.

10. Plaintiff filed an application under Order XII Rule

6 CPC on 05.01.2018 read with Section 151 CPC for

passing a decree on the basis of admissions made by the

defendant in the application under Section 12 of Act,

2005. Plaintiff pleaded that property in question is

self-acquired property of the plaintiff by agreement to

sell dated 12.01.1983 followed by a registered

conveyance deed dated 14.07.2003. The defendant has

herself in her pleadings filed in the domestic violence

9

case admitted the plaintiff to be the owner of the suit

property, hence, decree of mandatory injunction in

favour of the plaintiff be granted.

11. The defendant filed an application on 23.09.2017

under Order XI Rules 12 and 14 CPC for production of

documents. In paragraph 7 of the application, the

defendant referred to various documents which according

to the defendant were relevant for deciding the suit.

By the application documents were sought to be produced

by the plaintiff. The Trial Court vide its order dated

20.03.2018 directed the plaintiff to file an affidavit

and documents as sought for in the application under

Order XI Rule 13 which are in his custody with advance

copy to the opposite party. A reply was filed by the

defendant on 15.02.2018 to the application filed by the

plaintiff under Order XII Rule 6 CPC. The defendant

again reiterated that the shared household was acquired

by the plaintiff through joint-family business and the

house is not his self-acquired property. 

10

12. The plaintiff also filed an affidavit and documents

under Order XI Rule 13 CPC in compliance of the order

of the Trial Court dated 20.03.2018.

13. The Trial Court proceeded to decide the application

under Order XII Rule 6 CPC filed by the plaintiff. By

judgment dated 08.04.2019 Trial Court decreed the suit

in the following manner:

“26. In the light of aforesaid discussion and

the observations, this Court is of the

considered opinion that there are sufficient

admission to pass a decree in favour of the

plaintiff. Consequently, suit of the plaintiff

is decreed for the relief of mandatory and

permanent injunction as prayed for. The

defendant is directed to hand over the vacant

and physical possession of the suit property to

the plaintiff within 15 days. At the time of

announcement of the order, this Court asked

plaintiff whether he wants to pursue his suit

for the relief of damages to which he agreed to

waive off the said relief. Accordingly,

statement of the plaintiff was also recorded to

this effect. Accordingly, the relief of damages

stands withdrawn. Decree sheet be prepared for

the relief of permanent and mandatory

injunction accordingly. There is no order as to

costs. File be consigned to record room. As

requested, copy of this judgment be given

dasti.”

11

14. Aggrieved with the judgment of Trial Court the

defendant filed RFA No.381 of 2019 in the High Court of

Delhi. The Delhi High Court heard the RFA filed by the

respondent along with five other RFAs and by a common

judgment dated 18.12.2019 set aside the decree of the

Trial Court and remanded the matter to the Trial Court

for fresh adjudication in accordance with the

directions given in paragraph 56 of the judgment.

15. The High Court noticed the facts of the different

appeals and submissions made by the learned counsel.

The High Court opined that the real point of

determination in the appeal is not as to whether suit

premises is a shared household or not and since the

domestic violence proceedings initiated by the

daughter-in-law are pending adjudication, determination

of this issue in suit proceedings would result in

causing serious prejudice to the claim of the applicant

in the domestic violence proceedings. The High Court

observed that it had consciously refrained from

determining the question as to whether the suit

12

premises is shared household or not. The High Court was

of the view that the decisions cited have not

considered the effect of the pending domestic violence

application instituted by daughter-in-law upon the

civil suit. The High Court, however, held that suit for

possession instituted cannot be said to be nonmaintainable since necessary answer falls within the

term “procedure established by law”. The High Court has

further observed that question is whether the suit

could be simply decreed by the Trial Court on the basis

of the title without weighing the effect of the

statutory right in favour of the appellant. The High

Court in paragraph 33 made following observation:

“33……………Thus, I find that the DV Act has

aspired to bring in a sea change in the rights

of persons affected by domestic violence by

ensuring that irrespective of the ownership of

the suit premises where the aggrieved person

resided, she would still retain the right to

reside therein as long as she was able to prove

that she had endured domestic violence while

being in a domestic relationship with the owner

of such premises.”

13

16. The High Court opined that the Trial Court

erroneously proceeded to pass decree under Order XII

Rule 6 CPC by not impleading the husband and failing to

appreciate the specific submission of the appellant

while admitting the title of the respondent that the

suit premises was the joint family property but also

losing the site of the DV Act. The directions given by

the High Court are contained in the paragraph 56 to the

following effect:

“56. In these circumstances, the impugned

judgments cannot be sustained and are

accordingly set aside. The matters are remanded

back to the Trial Court for fresh adjudication

in accordance with the directions given

hereinbelow:

(i)At the first instance, in all

cases where the respondent’s

son/the appellant’s husband has not

been impleaded, the Trial Court

shall direct his impleadment by

invoking its suo motu powers under

Order I Rule 10 CPC.

(ii) The Trial Court will then

consider whether the appellant had

made any unambiguous admission

about the respondent’s ownership

rights in respect of the suit

premises; if she has and her only

defence to being dispossessed there

14

from is her right of residence

under the DV Act, then the Trial

Court shall, before passing a

decree of possession on the wife

premise of ownership rights, ensure

that in view of the subsisting

rights of the appellant under the

DV Act, she is provided with an

alternate accommodation as per

Section 19(1)(f) of the DV Act,

which will continue to be provided

to her till the subsistence of her

matrimonial relationship.

(iii) In cases where the appellant

specifically disputes the exclusive

ownership rights of the respondents

over the suit premises

notwithstanding the title documents

in their favour, the Trial Court,

while granting her an opportunity

to lead evidence in support of her

claim, will be entitled to pass

interim orders on applications

moved by the respondents, directing

the appellant to vacate the suit

premises subject to the provision

of a suitable alternate

accommodation to her under Section

19(1)(f) of the DV Act, which

direction would also be subject to

the final outcome of the suit.

(iv) While determining as to

whether the appellant’s husband or

the in-laws bears the

responsibility of providing such

alternate accommodation to the

appellant, if any, the Trial Court

may be guided by paragraph 46 of

15

the decision in Vinay Verma

(supra).

(v) The Trial Court shall ensure

that adequate safeguards are put in

place to ensure that the direction

for alternate accommodation is not

rendered meaningless and that a

shelter is duly secured for the

appellant, during the subsistence

of her matrimonial relationship.

(vi) This exercise of directing the

appellant to vacate the suit

premises by granting her alternate

accommodation will be completed

expeditiously and not later than 6

months from today.”

17. The plaintiff-appellant aggrieved by the judgment

of the High Court dated 18.12.2019 has come up in this

appeal.

18. We have heard Shri Prabhjit Jauhar, learned

counsel for the appellant. Shri Nidhesh Gupta, learned

senior counsel has appeared for the respondent. We have

also heard Ms. Geeta Luthra, learned senior counsel and

Shri Jayant Bhushan, learned senior counsel in the

connected SLP (C) No.9415 of 2020 in which parties are

stated to have entered into a settlement. 

16

19. Shri Prabhjit Jauhar, learned counsel for appellant

contends that suit property which is exclusively owned

by the appellant is not a shared household. The son of

the appellant, Raveen has no right in the property and

the son as well as respondent-daughter-in-law were only

gratuitous licencees of the appellant. The appellant

purchased the property in the year 1983, at that time

the son of the appellant was only 14 years old. It is

submitted that the respondent can claim right to reside

only in house which is either joint family property or

the husband of the respondent has a share in it. In the

property belonging to father of the husband, she has no

right to reside. Learned counsel for the appellant has

relied on judgment of this Court in S.R. Batra and Anr.

Vs. Taruna Batra, (2007) 3 SCC 169, where two-Judge

Bench of this Court held that the wife is entitled only

to claim a right under Section 17(1) to residence in a

shared household and a shared household would only mean

the house belonging to or taken on rent by the husband,

17

or the house which belongs to the joint family of which

the husband is a member.

20. It is submitted that the complaint under the Act,

2005 filed by the respondent was only a counter blast

to the Divorce Petition dated 28.11.2014 filed by the

husband of the respondent. It is submitted that

Sections 17 and 19 of the Act, 2005 do not contemplate

a proprietary or ownership right in the shared

household for the aggrieved person. Shri Jauhar further

submits that her claim for alternate accommodation can

be made qua husband and not qua the father-in-law

because her relationship in the household emanates

pursuant to the marriage and father-in-law cannot be

under a statutory obligation to provide for the

residence and maintenance of daughter-in-law. Shri

Jauhar submits that unless the definition of shared

household under Section 2(s) is not interpreted in a

manner confining the definition of shared household to

joint family or the property where the husband has a

share it will create chaos in the society. It is

18

submitted that extensive interpretation of shared

household would lead the chaos in the society which

needs to be avoided for protecting peace and harmony in

the society. He submitted that harmonious construction

by interpretation in the suit is to be adopted so that

the right of the parties are balanced. Shri Jauhar

submits that in her application filed under Section 12

of Act, 2005, the respondent has asked for alternate

accommodation.

21. Shri Jauhar submits that the High Court committed

error in not following the binding precedence of Delhi

High Court itself. Shri Jauhar submits that the

respondent never filed a counter claim in the suit

filed by the appellant-owner, nor filed a suit for

declaration of her claim of property being joint family

property. Shri Jauhar submits that the High Court has

not adverted to facts of different appeals and all

appeals were decided by a common judgment without

referring to evidence and pleadings in each appeal

separately. The finding of the Trial Court has not been

19

overruled by the High Court in the appellant’s case.

Shri Jauhar further submits that husband is not a

necessary party in a suit filed by the father-in-law.

Shri Jauhar submits that the Trial Court has rightly

decreed the suit under Order XII Rule 6 CPC relying on

the admission made by the respondent in her application

under Section 12 of the Act, 2005. The High Court has

not followed the binding judgment of this Court in S.

R. Batra Vs. Taruna Batra which was binding on the High

Court under Article 141 of the Constitution of India.

Shri Jauhar submits that rights of wife in other

statutes like Hindu Marriage Act, 1955 and Hindu

Adoption and Maintenance Act, 1956 are only against the

husband.

22. Shri Nidhesh Gupta, learned senior counsel

appearing for the respondent refuting the submission of

the learned counsel for the appellant supports the

judgment of the High Court. Shri Gupta submits that

Act, 2005 granted protection and security of residence

to woman. Shri Gupta referring to definition of

20

domestic relationship under Section 2(f) contends that

respondent was in domestic relationship with the

appellant and the appellant was respondent within the

meaning of Section 2(q) against whom allegation of

domestic violence was made in petition under Section

12. Shri Gupta referring to definition of shared

household under Section 2(s) submits that factum of

residence and domestic relationship with the respondent

are the only qualification to fall within the ambit of

definition of shared household. Shri Gupta submits that

second part of the definition of the shared household

is extensive in nature which gives certain example but

cannot be said to be exhaustive looking at scheme of

the Act. He submits that when 'includes' is used after

the term “means” it is extensive and not exhaustive in

nature. The respondent being in domestic relationship

with the appellant living in the suit property since

her marriage and continues to do so till date, the

property is shared household where the appellant is

staying. It is submitted that for shared household it

21

is not necessary that aggrieved person should have any

right, title or interest. It is further submitted that

it is also not necessary that the husband of the woman

should have any right, title or interest in the house.

It is submitted that protection under Section 17 is

available in all legal proceedings including the suit

filed by the appellant.

23. Referring to Section 26 of the Act, 2005 Shri Gupta

submits that relief under Section 19 was very well

available in Civil Procedure Code. The plea taken by

the respondent in her pleadings in the civil suit would

constitute the counter claim which warranted exercise

of power of Trial Court under Section 26 of the Act,

2005. Referring to the judgment of this Court in

S.R.Batra Vs. Taruna Batra, Shri Gupta submits that the

said judgment is distinguishable on facts. He submits

that the said case was pre-Act, 2005 case and secondly

Taruna Batra admitted that she had shifted to her

parents’ residence at the time of institution of the

suit. It is submitted that the injunction was denied

22

since Taruna Batra was not residing in the house which

finding was not liable to be interfered with by the

High Court under Article 226 or 227 as held by this

Court. Shri Gupta further submits that the judgment of

this Court in S.R. Batra case does not lay down correct

law. He submits that the definition of “shared

household” has not been correctly analysed in S.R.

Batra case. The definition of respondent does not

include only husband. The relatives of the husband who

have treated the aggrieved person with domestic

violence can be arrayed as respondent. There is no

reason to extend definition of shared household only to

property in which the husband has a share. It is

submitted that S.R. Batra has not appreciated that

second part of the definition of shared household is

merely illustration and not exhaustive. S.R.Batra also

erred in holding that alternative accommodation under

Section 19 can only be enforced against the husband.

Shri Gupta submits that the judgment of S.R. Batra does

not correctly interpret provisions of Act, 2005.

23

Referring two subsequent judgments of this Court,

namely Hiral P. Harsora and others Vs. Kusum

Narottamdas Harsora and others, (2016) 10 SCC 165, and

Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi,

(2017) 14 SCC 373, Shri Gupta submits that the above

two judgments have taken a view contrary to law lay

down in S.R. Batra case. Shri Gupta submits that

present was not a case of granting any decree under

Order XII Rule 6, the respondent having categorically

pleaded in the written statement that the suit property

was purchased from the joint family fund. Shri Gupta

referred to various documents which were brought on the

record before the Trial Court indicating that joint

family fund was utilised for purchasing the suit

property.

24. Shri Jayant Bhushan, learned senior counsel

supporting the submission of the learned counsel for

the appellant contends that rights of daughter-in-law

are only to the extent of right of the

husband/respondent. He submits that in the definition

24

in Section 2(s) the word ‘includes’ has to be read

“means and includes”. Referring to term household, Shri

Bhushan referred to definition as given by Census of

India where common kitchen is a pre-requisite of a

household.

25. Ms. Geeta Luthra supporting the submission of Shri

Nidhesh Gupta contends that household of father-in-law

will be shared household of daughter-in-law where she

is living since marriage. Ms. Luthra relies on the

judgment of Delhi Court in Eveneet Singh Vs. Prashant

Chaudhri, 2010 SCC online Delhi 4507, Division Bench

judgment of Delhi High Court in Eveneet Singh Vs.

Prashant Chaudhari, 2011 SCC online Delhi 4651 and

Division Bench judgment of the Delhi High Court in

Preeti Satija Vs. Raj Kumari and Anr., 2014 SCC online

Delhi 188.

26. Learned counsel for the parties have also referred

to various judgments of this Court and Delhi High Court

25

which we will consider while considering the

submissions of the parties in detail.

27. From the submissions of the learned counsel for the

parties following questions arise for determination in

this appeal:

(1) Whether definition of shared household under

Section 2(s) of the Protection of Women from

Domestic Violence Act, 2005 has to be read to

mean that shared household can only be that

household which is household of joint family or

in which husband of the aggrieved person has a

share?

(2) Whether judgment of this Court in S.R. Batra and

Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not

correctly interpreted the provision of Section

2(s) of Protection of Women from Domestic

Violence Act, 2005 and does not lay down a

correct law?

26

(3) Whether the High Court has rightly come to the

conclusion that suit filed by the appellant could

not have been decreed under Order XII Rule 6 CPC?

(4) Whether, when the defendant in her written

statement pleaded that suit property is her

shared household and she has right to residence

therein, the Trial Court could have decreed the

suit of the plaintiff without deciding such claim

of defendant which was permissible to be decided

as per Section 26 of the Act, 2005?

(5) Whether the plaintiff in the suit giving rise to

this appeal can be said to be the respondent as

per definition of Section 2(q) of Act, 2005 ?

(6) What is the meaning and extent of the expression

“save in accordance with the procedure

established by law” as occurring in Section 17(2)

of Act, 2005 ?

(7) Whether the husband of aggrieved party

(defendant) is necessary party in the suit filed

by the plaintiff against the defendant?

27

(8) What is the effect of orders passed under Section

19 of the Act, 2005 whether interim or final

passed in the proceedings initiated in a civil

court of competent jurisdiction?

28. Before we consider the questions as noted above, we

need to notice the Statutory Scheme of the Protection

of Women from Domestic Violence Act, 2005.

29. The progress of any society depends on its ability

to protect and promote the rights of its women.

Guaranteeing equal rights and privileges to women by

the Constitution of India had marked the step towards

the transformation of the status of the women in this

country.

30. The domestic violence in this country is rampant

and several women encounter violence in some form or

the other or almost every day, however, it is the least

reported form of cruel behavior. A woman resigns her

fate to the never ending cycle of enduring violence and

discrimination as a daughter, a sister, a wife, a

mother, a partner or a single woman in her lifetime.

28

This non-retaliation by women coupled with the absence

of laws addressing women’s issues, ignorance of the

existing laws enacted for women and societal attitude

makes the women vulnerable. The reason why most cases

of domestic violence are never reported is due to the

social stigma of the society and the attitude of the

women themselves, where women are expected to be

subservient, not just to their male counterparts but

also to the male’s relatives.

31. Till the year 2005, the remedies available to a

victim of domestic violence were limited. The women

either had to go to the civil court for a decree of

divorce or initiate prosecution in the criminal court

for the offence punishable under Section 498-A of the

IPC. In both the proceedings, no emergency

relief/reliefs is/are available to the victim. Also,

the relationships outside the marriage were not

recognized. This set of circumstances ensured that a

majority of women preferred to suffer in silence, not

out of choice but of compulsion. 

29

32. The enactment of Act, 2005 is a milestone for

protection of women in this country. The Statement of

Objects and Reasons of the Protection of Women from

Domestic Violence Bill, 2005 marks the objective which

was sought to be achieved by the enactment. It is

useful to reproduce the Statement of Objects and

Reasons, which are in the following words:-

“4. The Bill, inter alia, seeks to provide for

the following ==

(i) It covers those women who are

or have been in a relationship with the abuser where both

parties have lived together in

a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage

or adoption. In addition, relationships with family members

living together as a joint family are also included. Even

those women who are sisters,

widows, mothers, single women,

or living with the abuser are

entitled to legal protection

under the proposed legislation.

However, whereas the Bill enables the wife or the female

living in a relationship in the

nature of marriage to file a

complaint under the proposed

enactment against any relative

30

of the husband or the male

partner, it does not enable any

female relative of the husband

or the male partner to file a

complaint against the wife or

the female partner.

XXXXXXXXXXXXXXXXXX

(iii) It provides for the rights of

women to secure housing. It

also provides for the right of

a woman to reside in her

matrimonial home or shared

household, whether or not she

has any title or rights in such

home or household. This right

is secured by a residence

order, which is passed by the

Magistrate.

XXXXXXXXXXXXXXXXXXX”

33. The Statement of Objects and Reasons refers to

three International Conventions where recommendations

were made to the parties States to take measures

including Legislation to protect women against violence

including occurring within the family. General

Recommendation No.XII of the United Nations Committee

on Convention on Elimination of All Forms of

discrimination against women stated:-

31

“General Recommendation No. 12

(Eighth session, 1989)

Violence against women

The Committee on the Elimination of

Discrimination against Women.

Considering that Articles 2, 5, 11, 12

and 16 of the Convention require the

States parties to act to protect women

against violence of any kind occurring

within the family, at the work place or in

any other area of social life.”

34. Even before the Act, 2005 was enacted, Justice

Sabyasachi Mukharji in B.R. Mehta Vs. Atma Devi and

Ors., (1987) 4 SCC 183 has noted that right of

occupation in matrimonial home which is granted under

Matrimonial Homes Act, 1967 in England are not granted

in India though it may be that with the change of

situation and complex problems arising, it is high time

to give the wife or the spouse a right of occupation.

In paragraph 6 following was laid down:-

“6. ……………….In England the rights of the

spouses be it the husband or the wife to the

matrimonial home are now governed by the

provisions of Matrimonial Homes Act, 1967.

32

Halsbury's Laws of England, Fourth Edition,

Vol. 22 page 650 deals with the rights of

occupation in matrimonial home and paragraph

1047 deals with and provides that where one

spouse is entitled to occupy a dwelling house

by virtue of any estate or interest or contract

or by virtue of any enactment giving him or her

the right to remain in occupation, and the

other spouse is not so entitled, then the

spouse not so entitled has the certain rights

(known as "rights of occupation") that is to

say if in occupation, a right not to be evicted

or excluded from the dwelling house or any part

of it by the other spouse except with the leave

of the court given by an order, if not in

occupation, a right with the leave of the court

so given to enter into and occupy the dwelling

house. But such rights are not granted in India

though it may be that with change of situation

and complex problems arising it is high time to

give the wife or the spouse a right of

occupation in a truly matrimonial home, in case

of marriage breaking up or in case of strained

relationship between the husband and the

wife………………………….”

35. In the laws of United Kingdom, the rights of

husband or wife to occupy a dwelling house, which has

been the matrimonial home, was included in Matrimonial

Homes Act, 1967. Section 1(1) of the Act provides:-

 “Protection against eviction, etc., from

matrimonial home of spouse not entitled by

virtue of estate, etc., to occupy if 

33

 1. -(1)Where one spouse is entitled to

occupy a dwelling house by virtue of any estate

or interest or contract or by virtue of any

enactment giving him or her the right to remain

in occupation, and the other spouse is not so

entitled, then, subject to the provisions of

this Act, the spouse not so entitled shall have

the following rights (in this Act referred to

as "rights of occupation")—

(a)if in occupation, a right not to

be evicted or excluded from the

dwelling house or any part thereof by

the other spouse except with the

leave of the court given by an order

under this section;

(b)if not in occupation, a right with

the leave of the court so given to

enter into and occupy the dwelling

house.”

36. By subsequent enactment, Matrimonial Homes Act,

1983 although Matrimonial Homes Act, 1967 was repealed,

same protection was continued to occupy the matrimonial

home and the said right was continued by virtue of

Section 1(1), which was to the same effect. The Family

Law Act, 1996 was enacted in the United Kingdom where a

separate chapter “Chapter IV – Family Homes and

34

Domestic Violence” was enacted. Section 30 of which

provision is as follows:-

“30 Rights concerning home where one

spouse or civil partner has no estate, etc.

(1)This section applies if—

(a)one spouse or civil partner

is entitled to occupy a dwellinghouse by virtue of—

(i)a beneficial estate

or interest or contract; or

(ii)any enactment giving the right to remain in

occupation; and

(b)the other spouse or civil

partner is not so entitled.

(2)Subject to the provisions of this

Part, has the following rights “home rights”—

(a)if in occupation, a right not

to be evicted or excluded from the

dwelling-house or any part of it

by except with the leave of the

court given by an order under section 33;

(b)if not in occupation, a right

with the leave of the court so given

35

to enter into and occupy the

dwelling-house.

(3)If is entitled under this section to occupy a dwelling-house or any part of a

dwelling-house, any payment or tender made or

other thing done by in or towards satisfaction

of any liability of in respect of rent, mortgage payments or other outgoings affecting the

dwelling-house is, whether or not it is made or

done in pursuance of an order under section 40,

as good as if made or done by .

XXXXXXXXXXXXXXXX”

37. The right of occupation of matrimonial home, which

was not so far part of the statutory law in India came

to be included in Act, 2005. Need of such legislation

as noticed by Justice Sabyasachi Mukharji has been

fulfilled by enactment of Act, 2005.

38. As noticed above, from the Statement of Objects and

Reasons, the Act was enacted to fulfill the definite

objectives for protection of women. This Court had

occasion to examine the purpose of enactment of Act,

2005 in Kunapareddy Alias NookalaShanka Balaji Vs.

Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774

wherein paragraph 12 following was stated:-

36

“12.In fact, the very purpose of enacting

the DV Act was to provide for a remedy which is

an amalgamation of civil rights of the

complainant i.e. aggrieved person. Intention

was to protect women against violence of any

kind, especially that occurring within the

family as the civil law does not address this

phenomenon in its entirety. It is treated as an

offence Under Section 498-A of the Penal Code,

1860. The purpose of enacting the law was to

provide a remedy in the civil law for the

protection of women from being victims of

domestic violence and to prevent the occurrence

of domestic violence in the society. It is for

this reason, that the Scheme of the Act

provides that in the first instance, the order

that would be passed by the Magistrate, on a

complaint by the aggrieved person, would be of

a civil nature and if the said order is

violated, it assumes the character of

criminality…………………”

39. The Act, 2005 is a further step to secure social

justice by legislation. There has been several earlier

measures for protection of women like Section 125

Cr.P.C. and 498-A of India Penal Code. Justice Krishna

Iyer in Captain Ramesh Chander Kaushal Vs. Mrs. Veena

Kaushal and Ors., (1978) 4 SCC 70 noted the objectives

of enacting Section 125 Cr.P.C. in following words in

paragraph 9:-

37

“9. This provision is a measure of social

justice and specially enacted to protect women

and children and falls within the

constitutional sweep of Article 15(3)

reinforced by Article 39. We have no doubt that

sections of statutes calling for construction

by Courts are not petrified print but vibrant

words with social functions to fulfil. The

brooding presence of the constitutional empathy

for the weaker sections like women and children

must inform interpretation if it has to have

social relevance. So viewed, it is possible to

be selective in picking out that interpretation

out of two alternatives which advance the

cause--the cause of the derelicts.

40. Enactment of Act, 2005 is another step in the same

direction. This Court in Manmohan Attavar Vs. Neelam

Manmohan Attavar, (2017) 8 SCC 550 noticed that Act,

2005 has been enacted to create an entitlement in

favour of the woman of the right of residence. In

paragraph 15, following was observed:-

“15. A reading of the aforesaid provisions

shows that it creates an entitlement in favour

of the woman of the right of residence under

the "shared household" irrespective of her

having any legal interests in the same. The

direction, inter alia, can include an order

restraining dispossession or a direction to

remove himself on being satisfied that domestic

violence had taken place.”

38

41. Now, we proceed to notice certain provisions of

Act, 2005, which are relevant for determination of the

issues as arisen in the present appeal. According to

Section 2(a) ”aggrieved person” means any person, who

is, or has been, in a domestic relationship with the

respondent and who alleges to have been subjected to

any act of domestic violence by the respondent.

“Domestic Relationship” has been defined in Section

2(f) in following words:-

“(f) "domestic relationship" means a

relationship between two persons who live or

have, at any point of time, lived together in a

shared household, when they are related by

consanguinity, marriage, or through a

relationship in the nature of marriage,

adoption or are family members living together

as a joint family;”

42. The expression “respondent” is defined in Section 2

(q) in following words:-

“(q) "respondent" means any adult male

person who is, or has been, in a domestic

relationship with the aggrieved person and

against whom the aggrieved person has sought

any relief under this Act: 

39

Provided that an aggrieved wife or female

living in a relationship in the nature of a

marriage may also file a complaint against a

relative of the husband or the male partner;”

43. The words “adult male” as occurring in Section 2(q)

has been struck down by this Court in Hiral P. Harsora

and Ors. Vs. Kusum narottamdas Harsora and Ors., (2016)

10 SCC 165. Consequently, the respondent can also be a

female in domestic relationship with the aggrieved

person. The next definition, which is relevant to be

noticed is Section 2(s), which defines shared

household. Shared household is defined in following

words:-

“(s) "shared household" means a household

where the person aggrieved lives or at any

stage has lived in a domestic relationship

either singly or along with the respondent and

includes such a household whether owned or

tenanted either jointly by the aggrieved person

and the respondent, or owned or tenanted by

either of them in respect of which either the

aggrieved person or the respondent or both

jointly or singly have any right, title,

interest or equity and includes such a

household which may belong to the joint family

of which the respondent is a member,

irrespective of whether the respondent or the

40

aggrieved person has any right, title or

interest in the shared household;”

44. Section 3 defines “domestic violence”. Sections 4

to 11 occurring in Chapter III deals with powers and

duties of protection officers, service providers etc.

Section 12 occurring in Chapter IV – “Procedure for

obtaining orders of reliefs” deals with details of

application to Magistrate. Section 12 is as follows:-

“12. Application to Magistrate.-(1) An

aggrieved person or a Protection Officer or any

other person on behalf of the aggrieved person

may present an application to the Magistrate

seeking one or more reliefs under this Act:

Provided that before passing any order on

such application, the Magistrate shall take

into consideration any domestic incident report

received by him from the Protection Officer or

the service provider.

(2) The relief sought for under subsection (1) may include a relief for issuance

of an order for payment of compensation or

damages without prejudice to the right of such

person to institute a suit for compensation or

damages for the injuries caused by the acts of

domestic violence committed by the respondent:

Provided that where a decree for any

amount as compensation or damages has been

passed by any court in favour of the aggrieved

41

person, the amount, if any, paid or payable in

pursuance of the order made by the Magistrate

under this Act shall be set off against the

amount payable under such decree and the decree

shall, notwithstanding anything contained in

the Code of Civil Procedure, 1908 (5 of 1908),

or any other law for the time being in force,

be executable for the balance amount, if any,

left after such set off.

(3) Every application under sub-section

(1) shall be in such form and contain such

particulars as may be prescribed or as nearly

as possible thereto.

(4) The Magistrate shall fix the first

date of hearing, which shall not ordinarily be

beyond three days from the date of receipt of

the application by the court.

(5) The Magistrate shall Endeavour to

dispose of every application made under subsection (1) within a period of sixty days from

the date of its first hearing.”

45. Section 17 provides that every woman in a domestic

relationship shall have the right to reside in the

shared household. Section 17 is as follows:-

“17. Right to reside in a shared

household.-(1) Notwithstanding anything

contained in any other law for the time being

in force, every woman in a domestic

relationship shall have the right to reside in

the shared household, whether or not she has

any right, title or beneficial interest in the

same. 

42

(2) The aggrieved person shall not be

evicted or excluded from the shared household

or any part of it by the respondent save in

accordance with the procedure established by

law.”

46. Section 18 deals with protection orders. Section

19 deals with residence orders. Section 20 deals with

monetary reliefs. Section 23 deals with power to grant

interim and ex parte orders. Section 26 deals with

relief in other suits and legal proceedings.

47. After briefly noticing the outline of Act, 2005,

we, now, proceed to consider the questions noted above.

Questions Nos. 1 and 2

48. Both the above questions being inter-related are

being taken together. We may recapitulate the facts of

the present case in reference to shared household. The

suit property was purchased by appellant in the year

1983 in his name. The respondent got married to the

son of appellant on 04.03.1995 and after marriage she

was living in first floor of suit property. Till July,

43

2004, the husband of respondent also lived in first

floor whereafter due to marital discord, he shifted in

the guest room on the ground floor. In the suit filed

by the appellant for mandatory and permanent

injunction, appellant pleaded that he is the sole owner

of the house and prayed for removal of respondent, his

daughter-in-law from the first floor of the house. The

respondent had filed a written statement in the suit

and claimed that the suit property is a shared

household where the respondent had right to reside.

The submission of learned counsel for the appellant is

that the premises is not a shared household since the

husband of the respondent neither has any share in the

suit premises nor suit premises is a joint family

property. In support of his submission, he relies on

judgment of this Court in S.R. Batra and Ors. Vs.

Taruna Batra (supra).

49. The definition of shared household given under

Section 2(s) as noticed above beginning with expression

“shared household means a household where the person

44

aggrieved lives or at any stage has lived in a domestic

relationship either singly or along with the respondent

and includes……………. The section uses both the

expressions “means and includes”. A Three Judge bench

judgment of this Court in Bharat Coop. Bank (Mumbai)

Ltd. Vs. Coop. Bank Employees Union, (2007) 4 SCC 685

had occasion to consider Section 2(bb) of Industrial

Disputes Act, 1947, which section used both the words

“means and includes”. Explaining both the expressions,

following was laid down in paragraph 23:-

“23. ……………………………………………….It is trite to say that

when in the definition clause given in any

statute the word “means” is used, what follows

is intended to speak exhaustively. When the

word “means” is used in the definition, to

borrow the words of Lord Esher, M.R.

in Gough v. Gough [(1891) 2 QB 665] it is a

“hard-and-fast” definition and no meaning other

than that which is put in the definition can be

assigned to the same. (Also see P.

Kasilingam v. P.S.G. College of

Technology [1995 Supp (2) SCC 348 : AIR 1995 SC

1395].) On the other hand, when the word

“includes” is used in the definition, the

legislature does not intend to restrict the

definition: it makes the definition enumerative

but not exhaustive. That is to say, the term

defined will retain its ordinary meaning but

its scope would be extended to bring within it

matters, which in its ordinary meaning may or

45

may not comprise. Therefore, the use of the

word “means” followed by the word “includes” in

Section 2(bb) of the ID Act is clearly

indicative of the legislative intent to make

the definition exhaustive and would cover only

those banking companies which fall within the

purview of the definition and no other.”

50. We may notice another judgment of this Court in

Pioneer Urban Land and Infrastructure Limited and Anr.

Vs. Union of India and Ors., (2019) 8 SCC 416 where

this Court had occasion to consider both the

expressions, i.e., “means and includes”. In paragraph

82, this Court laid down:-

“82. …………………………In fact, in Jagir

Singh v. State of Bihar [(1976) 2 SCC 942] ,

SCC paras 11 and 19 to 21 and Mahalakshmi Oil

Mills v. State of A.P. [(1989) 1 SCC 164] , SCC

paras 8 and 11 (which has been cited in P.

Kasilingam [P. Kasilingam v. PSG College of

Technology, 1995 Supp (2) SCC 348]), this Court

set out definition sections where the

expression “means” was followed by some words,

after which came the expression “and includes”

followed by other words, just as in Krishi

Utpadan Mandi Samiti case [Krishi Utpadan

Mandi Samiti v. Shankar Industries, 1993 Supp

(3) SCC 361 (2)] . In two other recent

judgments, Bharat Coop. Bank (Mumbai)

Ltd. v. Employees Union [(2007) 4 SCC 685], SCC

paras 12 and 23 and State of

W.B. v. Associated Contractors [State of

46

W.B. v. Associated Contractors, (2015) 1 SCC

32] , SCC para 14, this Court has held that

wherever the expression “means” is followed by

the expression “and includes” whether with or

without additional words separating “means”

from “includes”, these expressions indicate

that the definition provision is exhaustive as

a matter of statutory interpretation. It has

also been held that the expression “and

includes” is an expression which extends the

definition contained in words which follow the

expression “means”……………………………”

51. We may notice two more judgments relied by Shri

Jayant Bhushan, learned senior counsel, i.e., The South

Gujarat Roofing Tiles Manufacturers Association and

Anr. Vs. The State of Gujarat and Anr., (1976) 4 SCC

601. Shri Bhushan’s submission is that use of

expression “includes” in Section 2(s) has to be read as

means. He placed reliance on following observations

made by this Court in paragraph 5:-

“5. XXXXXXXXXXXXXXXX

………………………….Though “include” is generally used

in interpretation clauses as a word of enlargement, in some cases the context might suggest a

different intention. Pottery is an expression

of very wide import, embracing all objects made

of clay and hardened by heat. If it had been

47

the legislature's intention to bring within the

entry all possible articles of pottery, it was

quite unnecessary to add an explanation. We

have found that the explanation could not possibly have been introduced to extend the meaning of potteries industry or the articles

listed therein added ex abundanti cautela. It

seems to us therefore that the legislature did

not intend everything that the potteries industry turns out to be covered by the entry. What

then could be the purpose of the explanation.

The explanation says that, for the purpose of

Entry 22, potteries industry “includes” manufacture of the nine articles of pottery named

therein. It seems to us that the word “includes” has been used here in the sense of

‘means’; this is the only construction that the

word can bear in the context. In that sense it

is not a word of extension, but limitation; it

is exhaustive of the meaning which must be

given to potteries industry for the purpose of

Entry 22. The use of the word “includes” in the

restrictive sense is not unknown. The observation of Lord Watson in Dilworth v. Commissioner

of Stamps which is usually referred to on the

use of “include” as a word of extension, is

followed by these lines:

“But the word ‘include’ is susceptible of another construction, which

may become imperative, if the context

of the Act is sufficient to show that

it was not merely employed for the

purpose of adding to the natural significance of the words or expressions

defined. It may be equivalent to ‘mean

and include’, and in that case it may

afford an exhaustive explanation of

the meaning which, for the purposes of

48

the Act, must invariably be attached

to these words or expressions.”

52. Next judgment relied by Shri Bhushan is Karnataka

Power Transmission Corporation and Anr. Vs. Ashok Iron

Works Private Limited, (2009) 3 SCC 240. In the above

case also submission was made before this court that in

the definition of person given in section 2(m) of

Consumer Protection Act, the expression “includes”

should be read as “means”. This Court laid down that

interpretation of a word or expression must depend on

the text and the context. In paragraphs 14 to 17,

following was laid down:-

“14. The learned counsel also submitted

that the word “includes” must be read as

“means”. In this regard, the learned counsel

placed reliance upon two decisions of this

Court, namely; (1) South Gujarat Roofing Tiles

Manufacturers Assn. v. State of Gujarat [(1976)

4 SCC 601] and (2) RBI v. Peerless General

Finance and Investment Co. Ltd. [(1987) 1 SCC

424].

15. Lord Watson in Dilworth v. Stamps

Commr. [1899 AC 99] made the following classic

statement: (AC pp. 105-06)

49

“… The word ‘include’ is very

generally used in interpretation

clauses in order to enlarge the meaning

of words or phrases occurring in the

body of the statute; and when it is so

used these words or phrases must be

construed as comprehending, not only

such things as they signify according

to their natural import, but also those

things which the interpretation clause

declares that they shall include. But

the word ‘include’ is susceptible of

another construction, which may become

imperative, if the context of the Act

is sufficient to show that it was not

merely employed for the purpose of

adding to the natural significance of

the words or expressions defined. It

may be equivalent to ‘mean and

include’, and in that case it may

afford an exhaustive explanation of the

meaning which, for the purposes of the

Act, must invariably be attached to

these words or expressions.”

16. Dilworth [1899 AC 99] and few other

decisions came up for consideration

in Peerless General Finance and Investment Co.

Ltd. [(1987) 1 SCC 424] and this Court

summarised the legal position that (Peerless

case [(1987) 1 SCC 424], SCC pp. 449-50, para

32) inclusive definition by the legislature is

used:

“32. … (1) to enlarge the

meaning of words or phrases so as

to take in the ordinary, popular

and natural sense of the words and

also the sense which the statute

wishes to attribute to it; (2) to

50

include meanings about which there

might be some dispute; or (3) to

bring under one nomenclature all

transactions possessing certain

similar features but going under

different names.”

17. It goes without saying that

interpretation of a word or expression must

depend on the text and the context. The resort

to the word “includes” by the legislature often

shows the intention of the legislature that it

wanted to give extensive and enlarged meaning

to such expression. Sometimes, however, the

context may suggest that word “includes” may

have been designed to mean “means”. The

setting, context and object of an enactment may

provide sufficient guidance for interpretation

of the word “includes” for the purposes of such

enactment.”

53. After noticing the ratio of above judgments,

Section 2(s), which uses both the expressions “means

and includes” and looking to the context, we are of the

view that the definition of shared household in Section

2(s) is an exhaustive definition. The first part of

definition begins with expression “means” which is

undoubtedly an exhaustive definition and second part of

definition, which begins with word “includes” is

explanatory of what was meant by the definition. Shri

51

Nidhesh Gupta, learned senior counsel for the appellant

submits that even if it is accepted that the definition

of Section 2(s) is exhaustive, his case is fully

covered in both the parts of the definition.

54. The use of both the expressions “means and

includes” in Section 2(s) of Act, 2005, thus, clearly

indicate the legislative intent that the definition is

exhaustive and shall cover only those which fall within

the purview of definition and no other.

55. Now, reverting back to the definition of Section

2(s), the definition can be divided in two parts,

first, which follows the word “means” and second which

follows the word “includes”. The second part which

follows “includes” can be further sub-divided in two

parts. The first part reads “shared household means a

household where the person aggrieved has lived or at

any stage has lived in a domestic relationship either

singly or along with the respondent”. Thus, first

condition to be fulfilled for a shared household is

that person aggrieved lives or at any stage has lived

52

in a domestic relationship. The second part subdivided in two parts is- (a) includes such a household

whether owned or tenanted either jointly by the

aggrieved person and the respondent and owned or

tenanted by either of them in respect of which either

the aggrieved person or the respondent or both jointly

or singly have any right, title, interest or equity and

(b)includes such a household which may belong to the

joint family of which the respondent is a member,

irrespective of whether the respondent or the aggrieved

person has any right, title or interest in the shared

household. In the above definition, two expressions,

namely, “aggrieved person” and “respondent” have

occurred. From the above definition, following is

clear:- (i) it is not requirement of law that aggrieved

person may either own the premises jointly or singly or

by tenanting it jointly or singly; (ii) the household

may belong to a joint family of which the respondent is

a member irrespective of whether the respondent or the

aggrieved person has any right, title or interest in

53

the shared household; and (iii) the shared household

may either be owned or tenanted by the respondent

singly or jointly.

56. Now, we revert back to the submission of the

learned counsel for the appellant that the shared

household is that household which belongs to joint

family of which husband is a member or husband has

share in the shared household. He finds support for

his submission by the judgment of this Court in S.R.

Batra Vs. Taruna Batra (supra).

57. The judgment of this court in S.R. Batra Vs. Taruna

Batra (supra), which is sheet anchor of the submission

of the appellant needs to be noticed in detail. In the

above case, the respondent was married with the son of

appellant on 14.04.2000. Respondent started living

with her husband in the house of appellant No.2 on the

second floor. It was not disputed that house belonged

to appellant No.2 and her son, i.e., husband of

respondent had no share. Husband had filed a divorce

petition against respondent whereas respondent filed a

54

criminal case under Sections 406, 498A, 506 and 34 of

Indian Penal Code. Respondent shifted to her parents’

residence because of the dispute with her husband. She

when later tried to enter the house, she found the main

entrance locked hence, she filed suit No. 87 of 2003 to

grant mandatory injunction to enable her to enter the

house. The Trial Court granted temporary injunction in

favour of the respondent. The appellant filed the

appeal, which was allowed by dismissing the temporary

injunction. Respondent filed a Writ Petition under

Article 227 of the Constitution, which was allowed by

learned Single Judge holding that the appellant is

entitled to reside in the second floor as that was her

matrimonial home. The appellant aggrieved against the

judgment of the High Court had filed an appeal. This

Court in Paragraph 18 observed that since the house

belongs to mother-in-law of the respondent and does not

belong to the husband, hence, she cannot claim any

right to live in the said house. Following was

observed in paragraph 18:-

55

“18. Here, the house in question belongs to the

mother-in-law of Smt Taruna Batra and it does

not belong to her husband Amit Batra. Hence,

Smt Taruna Batra cannot claim any right to live

in the said house.”

58. Before this Court, in the above case, the

provisions of Act, 2005 were relied. This Court held

that the respondent was not residing in the premises in

question, a finding of fact recorded by the court below

which ought not to be interfered by the High Court

under Articles 226 or 227. After taking the aforesaid

view, this Court observed that house in question cannot

be said to be shared household. In paragraph 22, this

Court held:-

“22. Apart from the above, we are of the

opinion that the house in question cannot be

said to be a “shared household” within the

meaning of Section 2(s) of the Protection of

Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”).”

59. This Court also noticed Sections 17 and 19 and the

argument of respondent that household is a shared

household since aggrieved person had lived there in a

56

domestic relationship. Argument of the respondent was

noticed in paragraph 24 in following words:-

“24. Learned counsel for the respondent

Smt Taruna Batra stated that the definition of

shared household includes a household where the

person aggrieved lives or at any stage had

lived in a domestic relationship. He contended

that since admittedly the respondent had lived

in the property in question in the past, hence

the said property is her shared household.”

60. This court expressed its dis-agreement with the

submission and made following observations in

paragraphs 25 to 30:-

“25. We cannot agree with this submission.

26. If the aforesaid submission is

accepted, then it will mean that wherever the

husband and wife lived together in the past

that property becomes a shared household. It is

quite possible that the husband and wife may

have lived together in dozens of places e.g.

with the husband's father, husband's paternal

grandparents, his maternal parents, uncles,

aunts, brothers, sisters, nephews, nieces, etc.

If the interpretation canvassed by the learned

counsel for the respondent is accepted, all

these houses of the husband's relatives will be

shared households and the wife can well insist

in living in all these houses of her husband's

relatives merely because she had stayed with

her husband for some time in those houses in

57

the past. Such a view would lead to chaos and

would be absurd.

27. It is well settled that any

interpretation which leads to absurdity should

not be accepted.

28. Learned counsel for the respondent Smt

Taruna Batra has relied upon Section 19(1)(f)

of the Act and claimed that she should be given

an alternative accommodation. In our opinion,

the claim for alternative accommodation can

only be made against the husband and not

against the husband's (sic) in-laws or other

relatives.

29. As regards Section 17(1) of the Act,

in our opinion the wife is only entitled to

claim a right to residence in a shared

household, and a shared household would only

mean the house belonging to or taken on rent by

the husband, or the house which belongs to the

joint family of which the husband is a member.

The property in question in the present case

neither belongs to Amit Batra nor was it taken

on rent by him nor is it a joint family

property of which the husband Amit Batra is a

member. It is the exclusive property of

Appellant 2, mother of Amit Batra. Hence it

cannot be called a “shared household”.

30. No doubt, the definition of “shared

household” in Section 2(s) of the Act is not

very happily worded, and appears to be the

result of clumsy drafting, but we have to give

it an interpretation which is sensible and

which does not lead to chaos in society.”

58

61. In paragraph 26, this Court observed “if the

aforesaid submission is accepted, then it will mean

that wherever the husband and wife lived together in

the past that property becomes a shared household”.

62. The observation of this Court in S.R. Batra Vs.

Taruna Batra (supra) in paragraphs 24, 25 and 26 were

made while considering the expression “person aggrieved

lives or at any stage has lived”. This Court observed

in paragraph 26 that if the interpretation canvassed by

learned counsel for the respondent is accepted that the

house of the husband’s relative where respondent

resided shall become shared household, shall lead to

chaos and would be absurd. The expression “at any

stage has lived” occurs in Section 2(s) after the words

“where the person aggrieved lives”. The use of the

expression “at any stage has lived” immediately after

words “person aggrieved lives” has been used for object

different to what has been apprehended by this Court in

paragraph 26. The expression “at any stage has lived”

has been used to protect the women from denying the

59

benefit of right to live in a shared household on the

ground that on the date when application is filed, she

was excluded from possession of the house or

temporarily absent. The use of the expression “at any

stage has lived” is for the above purpose and not with

the object that wherever the aggrieved person has lived

with the relatives of husband, all such houses shall

become shared household, which is not the legislative

intent. The shared household is contemplated to be the

household, which is a dwelling place of aggrieved

person in present time. When we look into the

different kinds of orders or reliefs, which can be

granted on an application filed by aggrieved person,

all orders contemplate providing protection to the

women in reference to the premises in which aggrieved

person is or was in possession. Our above conclusion

is further fortified by statutory scheme as delineated

by Section 19 of the Act, 2005. In event, the

definition of shared household as occurring in Section

2(s) is read to mean that all houses where the

60

aggrieved person has lived in a domestic relationship

alongwith the relatives of the husband shall become

shared household, there will be number of shared

household, which was never contemplated by the

legislative scheme. The entire Scheme of the Act is to

provide immediate relief to the aggrieved person with

respect to the shared household where the aggrieved

person lives or has lived. As observed above, the use

of the expression “at any stage has lived” was only

with intent of not denying the protection to aggrieved

person merely on the ground that aggrieved person is

not living as on the date of the application or as on

the date when Magistrate concerned passes an order

under Section 19. The apprehension expressed by this

Court in paragraph 26 in S.R. Batra Vs. Taruna Batra

(supra), thus, was not true apprehension and it is

correct that in event such interpretation is accepted,

it will lead to chaos and that was never the

legislative intent. We, thus, are of the considered

opinion that shared household referred to in Section

61

2(s) is the shared household of aggrieved person where

she was living at the time when application was filed

or in the recent past had been excluded from the use or

she is temporarily absent.

63. The words “lives or at any stage has lived in a

domestic relationship” have to be given its normal and

purposeful meaning. The living of woman in a household

has to refer to a living which has some permanency.

Mere fleeting or casual living at different places

shall not make a shared household. The intention of

the parties and the nature of living including the

nature of household have to be looked into to find out

as to whether the parties intended to treat the

premises as shared household or not. As noted above,

Act 2005 was enacted to give a higher right in favour

of woman. The Act, 2005 has been enacted to provide

for more effective protection of the rights of the

woman who are victims of violence of any kind occurring

within the family. The Act has to be interpreted in a

manner to effectuate the very purpose and object of the

62

Act. Section 2(s) read with Sections 17 and 19 of Act,

2005 grants an entitlement in favour of the woman of

the right of residence under the shared household

irrespective of her having any legal interest in the

same or not.

64. In paragraph 29 of the judgment, this Court in S.R.

Batra Vs. Taruna Batra (supra) held that wife is only

entitled to claim a right to residence in a shared

household and a shared household would only mean the

house belonging to or taken on rent by the husband, or

the house which belongs to the joint family of which

the husband is a member. The definition of shared

household as noticed in Section 2(s) does not indicate

that a shared household shall be one which belongs to

or taken on rent by the husband. We have noticed the

definition of “respondent” under the Act. The

respondent in a proceeding under Domestic Violence Act

can be any relative of the husband. In event, the

shared household belongs to any relative of the husband

with whom in a domestic relationship the woman has

63

lived, the conditions mentioned in Section 2(s) are

satisfied and the said house will become a shared

household. We are of the view that this court in S.R.

Batra Vs. Taruna Batra (supra) although noticed the

definition of shared household as given in Section 2(s)

but did not advert to different parts of the definition

which makes it clear that for a shared household there

is no such requirement that the house may be owned

singly or jointly by the husband or taken on rent by

the husband. The observation of this Court in S.R.

Batra Vs. Taruna Batra (supra) that definition of

shared household in Section 2(s) is not very happily

worded and it has to be interpreted, which is sensible

and does not lead to chaos in the society also does not

commend us. The definition of shared household is

clear and exhaustive definition as observed by us. The

object and purpose of the Act was to grant a right to

aggrieved person, a woman of residence in shared

household. The interpretation which is put by this

Court in S.R. Batra Vs. Taruna Batra (supra) if

64

accepted shall clearly frustrate the object and purpose

of the Act. We, thus, are of the opinion that the

interpretation of definition of shared household as put

by this Court in S.R. Batra Vs. Taruna Batra (supra) is

not correct interpretation and the said judgment does

not lay down the correct law.

65. The learned counsel for the appellant has placed

reliance on another Two Judge Bench judgment of this

Court in Vimlaben Ajitbhai Patel Vs. Vatsalben

Ashokbhai Patel and Ors., (2008) 4 SCC 649. In the

above case, this Court had occasion to consider the

provisions of Act, 2005. The question which came for

consideration in the above case has been noticed in

paragraph 14 of the judgment, which is to the following

effect:-

“14. The questions which arise for consideration are:

(i) Whether in the facts and circumstances

of the case, the property of Appellant 1 could

have been sold in auction? and

65

(ii) Whether in a case of this nature, the

bail granted to the appellants should have been

directed to be cancelled?”

66. In the above case, the complaint was filed by third

respondent against her husband and appellant’s fatherin-law and mother-in-law under Sections 406 and 114 of

Indian Penal Code. The bail granted to the appellants

was cancelled. Proceedings under Section 82 Cr.P.C.

were initiated attaching the properties of the

appellant. The learned Metropolitan Magistrate asked

the District Magistrate to auction the attached

properties. The properties of the appellant was

auctioned and this Court in the above case has held

that the provisions of the Hindu Adoptions and

Maintenance Act, 1956 that maintenance of a wife,

during subsistence of marriage, is on the husband and

on the applicant to maintain the daughter-in-law arises

only when the husband has died. In paragraphs 21 and

22 following was laid down:-

“21. Maintenance of a married wife, during

subsistence of marriage, is on the husband. It

is a personal obligation. The obligation to

66

maintain a daughter-in-law arises only when the

husband has died. Such an obligation can also

be met from the properties of which the husband

is a co-sharer and not otherwise. For invoking

the said provision, the husband must have a

share in the property. The property in the name

of the mother-in-law can neither be a subjectmatter of attachment nor during the lifetime of

the husband, his personal liability to maintain

his wife can be directed to be enforced against

such property.

22. Wholly uncontentious issues have been

raised before us on behalf of Sonalben (wife).

It is well settled that apparent state of

affairs of state shall be taken as real state

of affairs. It is not for an owner of the

property to establish that it is his selfacquired property and the onus would be on the

one, who pleads contra. Sonalben might be

entitled to maintenance from her husband. An

order of maintenance might have been passed but

in view of the settled legal position, the

decree, if any, must be executed against her

husband and only his properties could be

attached therefor but not of her mother-inlaw.”

67. In paragraph 27, this Court further held:-

“27. The Domestic Violence Act provides

for a higher right in favour of a wife. She not

only acquires a right to be maintained but also

thereunder acquires a right of residence. The

right of residence is a higher right. The said

right as per the legislation extends to joint

properties in which the husband has a share.”

67

68. In paragraph 28, this court noticed the judgment of

this Court in S.R. Batra Vs. Taruna Batra (supra).

69. In the facts of the above case, this Court held

that the High Court erred in cancelling the bail of the

appellants. Allowing the appeal, following directions

were issued in paragraph 51 of the judgment:-

“51. Having regard to the facts and circumstances of this case we are of the opinion

that the interest of justice shall be subserved

if the impugned judgments are set aside with

the following directions:

(i) The property in question shall be released from attachment.

(ii) The 3rd respondent shall refund the

sum of Rs 1 lakh to the respondent with interest @ 6% per annum.

(iii) The amount of Rs 4 lakhs deposited by

the 1st respondent shall be refunded to him immediately with interest accrued thereon.

(iv) The 3rd respondent should be entitled

to pursue her remedies against her husband in

accordance with law.

(v) The learned Magistrate before whom the

cases filed by the 3rd respondent are pending

68

should bestow serious consideration of disposing of the same, as expeditiously as possible.

(vi) The 3rd respondent shall bear the

costs of the appellant which are quantified at

Rs 50,000 (Rupees fifty thousand) consolidated.”

70. In the above case, this Court has held that

property of mother-in-law cannot be attached since the

maintenance of wife during the married life is on the

husband. The question which fell for consideration

before this Court in above case was as to whether the

property of the appellant could have been sold in

auction and the bail granted to the appellants should

have been cancelled as noted in paragraph 14. No issue

regarding right to reside in a shared household had

arisen in the above case and the above case is entirely

different from the present case, the above case arose

out of criminal proceedings on the basis of complaint

filed by the respondent against the appellant. The

above judgment in no manner supports the case of the

appellant. Further in the above case, this Court

relied on judgment of S.R. Batra Vs. Taruna Batra

69

(supra), we have observed above that S.R. Mehta does

not lay down a correct law.

71. Learned counsel for the respondent has relied on

few judgments of Delhi High Court in support of his

submission. Delhi High Court in Eveneet Singh Vs.

Prashant Chaudhri, 2010 SCC Online Del 4507 had

considered the provisions of Act, 2005 and also the

definition of shared household. In paragraphs 16 and

17 following was laid down:-

 “16. The definition of “shared household”

emphasizes the factum of a domestic relationship and no investigation into the ownership of

the said household is necessary, as per the

definition. Even if an inquiry is made into the

aspect of ownership of the household, the definition casts a wide enough net. It is couched

in inclusive terms and is not in any way, exhaustive (S. Prabhakaran v. State of Kerala,

2009 (2) RCR (Civil) 883). It states that “…includes such a household whether owned or tenanted either jointly by the aggrieved person

and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both

jointly or singly have any right, title, interest or equity and includes such a household

which may belong to the joint family of which

the respondent is a member, irrespective of

whether the respondent or the aggrieved person

70

has any right, title or interest in the shared

household”

(emphasis supplied).

17. It would not be out of place to notice

here that the use of the term “respondent” is

unqualified in the definition nor is there any

qualification to it under Sections 12, 17 or

19. Therefore, there is no reason to conclude

that the definition does not extend to a house

which is owned by a mother-in-law or any other

female relative, since they are encompassed under the definition of ‘respondent’ under Section 2(q).”

72. The Division Bench of the Delhi High Court affirmed

the judgment in Eveneet Singh Vs. Prashant Chaudhari,

2011 SCC Online Del 4651 of the learned Single Judge as

noted above. In paragraph 14, the Division Bench laid

down following:-

“14. It is apparent that clause (f) of subsection 1 of Section 19 of the Act is intended

to strike a balance between the rights of a

daughter-in-law and her in-laws, if a claim to

a shared residence by the daughter-in-law

pertains to a building in which the matrimonial

home was set up belongs to her mother-in-law or

father-in-law.”

71

73. Another judgment which need to be noticed of Delhi

High Court is Preeti Satija Vs. Raj Kumari and Anr.,

2014 SCC Online Del 188. In paragraphs 20 and 21, the

Division Bench laid down following:-

“20. Crucially, Parliament's intention by

the 2005 Act was to secure the rights of aggrieved persons in the shared household, which

could be tenanted by the Respondent (including

relative of the husband) or in respect of which

the Respondent had jointly or singly any right,

title, interest, or “equity”. For instance, a

widow (or as in this case, a daughter in law,

estranged from her husband) living with a

mother-in-law, in premises owned by the latter,

falls within a “domestic relationship”. The

obligation not to disturb the right to residence in the shared household would continue

even if the mother-in-law does not have any

right, title or interest, but is a tenant, or

entitled to “equity” (such as an equitable

right to possession) in those premises. This is

because the premises would be a “shared household”. The daughter-in-law, in these circumstances is entitled to protection from dispossession, though her husband never had any ownership rights in the premises. The right is not

dependent on title, but the mere factum of residence. Thus, even if the mother-in-law is a

tenant, then, on that ground, or someone having

equity, she can be injuncted from dispossessing

the daughter in law. In case the mother in law

is the owner, the obligation to allow the

daughter in law to live in the shared household, as long as the matrimonial relationship

between her and the husband subsists, continues. The only exception is the proviso to 19(1)

72

(b), which exempts women from being directed to

remove themselves from the shared household. No

such exception has been carved out for the

other reliefs under Section 19, especally in

respect of protection orders. Had the Parliament intended to create another exception in

favor of women, it would have done so. This

omission was deliberate and in consonance with

the rest of the scheme of the Act. There can be

other cases of domestic relationships such as

an orphaned sister, or widowed mother, living

in her brother's or son's house. Both are covered by the definition of domestic relationship, as the brother is clearly a Respondent.

In such a case too, if the widowed mother or

sister is threatened with dispossession, they

can secure reliefs under the Act, notwithstanding exclusive ownership of the property by the

son or brother. Thus, excluding the right of

residence against properties where the husband

has no right, share, interest or title, would

severely curtail the extent of the usefulness

of the right to residence.

21. The other aspect, which this Court

wishes to highlight, is that the 2005 Act

applies to all communities, and was enacted

“to provide more effective protection of the

rights of women guaranteed under the

Constitution who are victims of violence of

any kind occurring within the family”. The

right to residence and creation of mechanism

to enforce is a ground breaking measure, which

Courts should be alive to. Restricting the

scope of the remedies, including in respect of

the right to reside in shared household, would

undermine the purpose of this enactment. It

is, therefore, contrary to the scheme and the

objects of the Act, as also the unambiguous

text of Section 2(s), to restrict the

73

application of the 2005 Act to only such cases

where the husband alone owns some property or

has a share in it. Crucially, the mother-inlaw (or a father-in-law, or for that matter,

“a relative of the husband”) can also be a

Respondent in the proceedings under the 2005

Act and remedies available under the same Act

would necessarily need to be enforced against

them.”

Against above judgment of Delhi High Court, Civil

Appeal No. 9723 of 2014 is pending in this Court.

74. In another elaborate judgment, the Division Bench

of Delhi High Court in Navneet Arora Vs. Surender Kaur

and Ors., 2014 SCC Online Del 7617 had considered the

various aspects of Act, 2005. Dealing with right of

residence in paragraphs 58 to 60, following was held:-

“58. It may be highlighted that the Act does

not confer any title or proprietary rights in

favour of the aggrieved person as misunderstood

by most, but merely secures a ‘right of

residence’ in the ‘shared household’. Section

17(2) clarifies that the aggrieved person may

be evicted from the ‘shared household’ but only

in accordance with the procedure established by

law. The legislature has taken care to

calibrate and balance the interests of the

family members of the respondent and mitigated

the rigour by expressly providing under the

provisio to Section 19(1) that whilst

74

adjudicating an application preferred by the

aggrieved person it would not be open to the

Court to pass directions for removing a female

member of the respondents family from the

“shared household”. Furthermore, in terms of

Section 19(1)(f), the Court may direct the

respondent to secure same level of

accommodation for the aggrieved person as

enjoyed by her in the “shared household” or to

pay rent for the same, if the circumstances so

require.

59. The seemingly ‘radical’ provisions

comprised in the Protection of Women from

Domestic Violence Act, 2005 must be understood

and appreciated in light of the prevalent

culture and ethos in our society.

60. The broad and inclusive definition of the

term ‘shared household’ in the Protection of

Women from Domestic Violence Act, 2005 is in

consonance with the family patterns in India,

where married couple continue to live with

their parents in homes owned by parents.”

75. The Delhi High Court in the above case has rightly

considered the concept of shared household as occurring

in Section 2(s) of the Act, 2005.

76. We also need to notice several judgments of Delhi

High Court and other High Courts, which have been

relied by Shri Jauhar. The judgments of Delhi High

Court relied by Shri Jauhar are:-

75

S.No. Particulars Citation

1. Deepika Kumar Vs. Medhavi

Kumar and Ors.

MANU/DE/3859/2015

2. Sardar Malkiat Singh Vs.

Knawaljit Kaur and Ors.

168 (2010) DLT

521

3. Neetu Mittal Vs. Kanta Mittal 2009 AIR (Del) 72

4. Sudha Mishra Vs. Surya Chand

Mishra

2012 (3) AD

(Delhi) 76

5. Sangeeta Vs. Om Parkash Balyan

and Ors.

MANU/PH/1251/2015

6. Harish Chand Tandon Vs. Darpan

Tandon and Anr.

MANU/DE/3200/2015

7. Ekta Arora Vs. Ajay Arora and

Anr.

AIR 2015 (Del)

180

8. Smt. Saloni Mahajn Vs. Shri

Madan Mohan Vig.

2014 SCC Online

(Del) 4931

77. All these judgments of Delhi High Court relies on

S.R. Batra Vs. Taruna Batra (supra). We having already

held that judgment of S.R. Batra Vs. Taruna Batra

(supra) insofar as it interpret the definition of

shared household of Section 2(s) does not lay down the

correct law, the above judgment of the High Court does

not come to rescue of learned counsel for the

76

appellant. Shri Jauhar has also placed reliance on few

judgments of other High Courts namely:-

S.No. Particulars Citation

1. Smt. Chanchal Agarwal Vs.

Jagdish Prasad Gupta and

Anr..

2014 SCC Online

All 16019

2. A.R. Hashir Najyahouse and

Ors. Vs. Shima and Ors.

2015 SCC Online

Ker 9007

3. Richa Gaur Vs. Kamal Kishore

Gaur

2019 SCC Online

All 4084

4. Payal Sancheti (Smt.) and

Anr. Vs. Harshvardhan

Sancheti

MANU/RH/08054/2008

5. Kolli Babi Sarojini and Ors.

Vs. kolli Jayalaxmi and Anr.

2014 SCC Online AP

414

6. N.S. Leelawati and Ors. Vs.

R. Shilpa Brunda

MANU/KA/8874/2019

78. The above judgments of the High Courts have again

relied on judgment of S.R. Batra Vs. Taruna Batra

(supra), hence, they also do not support the claim of

the appellant.

79. Shri Jauhar also relied on a Judgment of Three

Judge Bench of this Court in Maria Margarida Sequeira

77

Fernandes and Ors. Vs. Erasmo Jack De Sequeira, (2012)

5 SCC 370. Shri Jauhar placed reliance on paragraph 97

of the judgment, which enumerates few principles of

law. Paragraph 97 is as follows:-

“97. Principles of law which emerge in

this case are crystallised as under:

(1) No one acquires title to the property

if he or she was allowed to stay in the

premises gratuitously. Even by long possession

of years or decades such person would not acquire any right or interest in the said property.

(2) Caretaker, watchman or servant can

never acquire interest in the property irrespective of his long possession. The caretaker

or servant has to give possession forthwith on

demand.

(3) The courts are not justified in protecting the possession of a caretaker, servant

or any person who was allowed to live in the

premises for some time either as a friend,

relative, caretaker or as a servant.

(4) The protection of the court can only

be granted or extended to the person who has

valid, subsisting rent agreement, lease agreement or licence agreement in his favour.

(5) The caretaker or agent holds property

of the principal only on behalf of the principal. He acquires no right or interest whatso-

78

ever for himself in such property irrespective

of his long stay or possession.”

80. There cannot be any dispute to the preposition of

law as laid down by this Court in above case. The

above case arose out of a suit filed by the respondent

for permanent injunction and mandatory injunction

against the appellant. The respondent was brother of

the appellant. Suit was decreed by the Trial Court,

and appeal against which judgment was also dismissed.

Appellant case was that the respondent has no right,

title or interest in the property and the respondent

was permitted to live in the premises since the

appellant being wife of a Navy Officer was most of the

period out of Goa and she has permitted her brother to

occupy the premises. This Court made following

observations in paragraphs 91 and 92:-

“91. We have heard the learned counsel for

the parties at length and perused the relevant

judgments cited at the Bar. In the instant

case, admittedly, the respondent did not claim

any title to the suit property. Undoubtedly,

the appellant has a valid title to the property

which is clearly proved from the pleadings and

documents on record.

79

92. The respondent has not been able to

establish the family arrangement by which this

house was given to the respondent for his

residence. The courts below have failed to

appreciate that the premises in question was

given by the appellant to her brother, the

respondent herein as a caretaker. The appellant

was married to a naval officer who was

transferred from time to time outside Goa.

Therefore, on the request of her brother she

gave possession of the premises to him as a

caretaker. The caretaker holds the property of

the principal only on behalf of the principal.”

81. For the above reasons, the Court allowed the appeal

and laid down the preposition of law as noted above in

paragraph 97 of the judgment. The ratio as laid down

in the above case of this Court is nothing to do with

the issues, which have arisen in the present appeal and

the reliance on the above judgment by learned counsel

for the appellant is misplaced.

82. Now, coming back again to the facts of the present

case, there being specific pleading on behalf of the

respondent that the house, which is in the name of the

appellant is the matrimonial home of the respondent

where she was residing in first floor since her

80

marriage. The fact that respondent is residing in first

floor of the premises is not matter of dispute. Even

if the house is in the name of the appellant and that

even if we accept the case of the appellant that

appellant’s son Raveen has no share in the house

belonging to appellant, with whom the respondent was

living in the domestic relationship, whether the

respondent is entitled to reside in the premises in

question as shared household is the question to be

answered. In the impugned judgment, Delhi High Court

has refrained from deciding the point as to whether

suit property is a shared household on the ground that

the application filed under Section 12 of Act, 2005 by

the respondent is pending. In the suit filed by the

appellant where respondent has pleaded and claimed that

it is shared household and she has right to live and it

was on that ground she was resisting the suit for

mandatory injunction, the question that whether the

suit property is a shared household or not becomes

relevant and necessary and the said issue cannot be

81

skipped on the ground that application under D.V. Act

is pending. In the regular suit, which has been filed

by the appellant, the plea of defendant that suit

property is her shared household and she has right to

residence could have been very well gone into by virtue

of Section 26, which we shall further deal a little

later.

83. Before we close our discussion on Section 2(s), we

need to observe that the right to residence under

Section 19 is not an indefeasible right of residence in

shared household especially when the daughter-in-law is

pitted against aged father-in-law and mother-in-law.

The senior citizens in the evening of their life are

also entitled to live peacefully not haunted by marital

discord between their son and daughter-in-law. While

granting relief both in application under Section 12 of

Act, 2005 or in any civil proceedings, the Court has to

balance the rights of both the parties. The directions

issued by High court in paragraph 56 adequately

balances the rights of both the parties. 

82

84. In view of the foregoing discussions, we answer

issue Nos. 1 and 2 in following manner:-

(i) The definition of shared household given in

Section 2(s) cannot be read to mean that

shared household can only be that household

which is household of the joint family of

which husband is a member or in which husband

of the aggrieved person has a share.

(ii) The judgment of this Court in S.R. Batra Vs.

Taruna Batra (supra) has not correctly interpreted Section 2(s) of Act, 2005 and the

judgment does not lay down a correct law.

Question Nos. 3 and 4

85. Both the issues being inter-connected are being

taken together.

86. The question which is posed for the consideration

is, whether the learned Trial Court was justified in

passing the decree on alleged admission under Order XII

Rule 6 of the CPC or not. What is required to be

considered is what constitutes the admission warranting

83

the judgment on admission in exercise of powers under

Order XII Rule 6, CPC. This Court had occasion to

consider above in decisions; Himani Alloys Limited Vs.

Tata Steel Limited, (2011) 15 SCC 273 and S.M. Asif Vs.

Virender Kumar Bajaj, (2015) 9 SCC 287.

87. In Himani Alloys Limited (supra), this Court had an

occasion to consider the scope and ambit of judgment on

admission in exercise of powers under Order XII Rule 6,

CPC. It is observed and held in paragraph 11 that

being an enabling provision, it is neither mandatory

nor preemptory but discretionary for the Court to pass

judgment on admission in exercise of powers under Order

XII Rule 6 CPC. It is observed that the Court, on

examination of the facts and circumstances, has to

exercise its judicial discretion keeping in mind that a

judgment on admission is a judgment without trial which

permanently denies any remedy to the defendant by way

of an appeal on merits. It is further observed that,

therefore, unless the admission is clear, unambiguous

and unconditional, the discretion of the Court should

84

not be exercised to deny the valuable right of a

defendant to contest the claim. In short, the

discretion should be used only when there is a clear

“admission” which can be acted upon. It is further

observed and held that “admission” should be

categorical. It should be a conscious and deliberate

act of the party making it, showing an intention to be

bound by it.

88. A similar view was expressed by this Court in the

case of S.M. Asif (supra). It is observed and held in

paragraph 8 that expression “may” in Order XII Rule 6

CPC suggests that it is discretionary and cannot be

claimed as of right. It is further observed that where

defendants raised objections which go to root of the

case, it would not be appropriate to exercise

discretion under Order XII Rule 6 CPC.

89. In this context, we need to notice a few parts of

pleadings of both the parties as disclosed in plaint

and the written statement. The plaintiffs have filed

the suit for mandatory and permanent injunction

85

claiming to be absolute owner of the suit property

where defendant was admitted to be in occupation of two

bed rooms with few amenities on first floor of the

property. The plaintiff pleaded that he is a senior

citizen, aged 76 years but wanted to live a peaceful

life and has terminated the licence of the defendant,

who stayed in the first floor. The pleadings of the

plaintiffs in paragraphs 1, 2, 3, 4 and 5 are as

follows:-

“1. That the plaintiff is the absolute owner

of the property bearing No.D-1077 New Friends

Colony, New Delhi – 110 025, admeasuring 492

sqyds. and is filing the present suit seeking

removal of the defendant from the first floor

of the property bearing No.D-1077, New Friends

Colony, New Delhi – 110 025.

2. That the defendant is in occupation of two

bed rooms with attached dressing and bath rooms

and a kitchen on the first floor of property

bearing No.D-1077, New Friends Colony, New

Delhi – 110 025 more particularly described in

Red colour in the site plan and hereinafter

referred to as the suit premises.

3. That the plaintiff is a senior citizen

aged 76 years and is a heart patient and has

undergone angioplasty twice in the arteries in

the heart. The plaintiff suffers from

hypertension and high blood pressure and is on

constant medication for the same. As such the

86

plaintiff in his old age would like to live a

peaceful life and has terminated the licence of

the defendant to stay in the first floor of the

suit property which is the exclusive property

of the plaintiff.

4. That the plaintiff is aggrieved by the

torturous acts of the defendant in filing false

and frivolous cases and attempting to implicate

the plaintiff and his aged wife in false cases,

the plaintiff in his ripe old age prays for

removal of the defendant from the suit property

so as to lead a tension free life without

hurling of abuses and torture perpetrated by

the defendant.

5. That the plaintiff is the sole and

absolute owner of the suit property which was

acquired by the plaintiff from its previous

owner namely Shri Kulbhushan Jain vide

agreement to sell dated 12th January, 1983 for

a sum of Rs.2,77,000/- (Rupees Two lacs seventy

seven thousand only) and after purchase of the

said property the plaintiff herein constructed

the entire property including first floor of

the suit property out of his own self acquired

funds and the entire property bearing No.D1077, New Friends Colony, New Delhi – 110 025

was converted into free hold vide conveyance

deed dated 14.07.2000 which was duly registered

with the Sub Registrar of Assurances VII vide

registration No.2500 in Volume No.951 pages 54

to 56. As such, the plaintiff having acquired

the absolute ownership of the entire property

bearing No.D-1077, New Friends Colony, New

Delhi – 110 025 is entitled and competent to

file the present suit seeking removal of the

defendant from the portion of the first floor

of the suit property.”

87

90. A written statement was filed by the defendant

where she claimed that after marriage of the defendant

on 04.03.1995, she is residing in the house. It was

further pleaded that the shared household was acquired

by the plaintiff through joint family funds and it is

not his self acquired property. Paragraphs 1, 4 and 7

of the written statement are as follows:-

“1. That a bare perusal of the documents

filed alongwith the plaint and even otherwise

it is amply evident that the plaintiff as per

his own version became the owner of the suit

property bearing No D-1077, New Friends Colony,

New Delhi-110025 only in the year 2003 The

marriage of the answering defendant was

solemnized on 4/3/1995 and the defendant

started residing in the joint shared household

since then. Therefore the right of the

defendant is prior in point of time that of the

plaintiff.

It is further submitted that the said

shared household was purportedly acquired by

the plaintiff through joint family funds and

not his self acquired property. The plaintiff

hereby called upon to disclose all income tax

returns, bank statements, audited balance

sheets etc. since 1982 till 2006. This may

deemed to be noticed to discover under

provisions of Order XI Rule 12 CPC on the

plaintiff. As separate application under

relevant provision of CPC is also being filed

by the defendant for such discovery of

88

documents. In view of this, the present is not

maintainable and is liable to be dismissed.

4. That the suit filed by the plaintiff is

directly in conflict with the right of the

defendant to reside in her matrimonial

residence/shared household granted to her by

the Legislature and specifically envisaged in

section 17 and 19 of the Protection of Women

from Domestic Violence Act, 2005 and as such is

liable to be dismissed at the threshold. The

defendant came to the suit property on

04.03.1995 as a 'Bahu' of the plaintiff and

legally wedded wife of his elder son Shri

Raveen Ahuja. After the marriage the defendant

lived with the son of the plaintiff Shri Raveen

Ahuja in the joint family uninterruptedly and

there was/is a joint kitchen. The defendant has

a right to reside in the suit property whether

or not she has any right title or beneficial

interest in the same. The son of the plaintiff

Shri Raveen Ahuja is residing with, the

plaintiff on the ground floor of the suit

premises. In view of this, the stilt of the

plaintiff is not maintainable and is liable to

be dismissed.

7. That the plaintiff has not approached to

this Hon'ble Court with clean hands and

suppressed the true and material facts

regarding causing physical and mental torture

to the defendant on account of domestic

violence etc. by the plaintiff his wife and

their elder son. They also hatched a conspiracy

against the defendant in order to compel her to

leave the matrimonial home in a deceit full

manner. In view of this, the present suit is

not maintainable and is liable to be

dismissed.” 

89

91. The suit was filed by the plaintiff claiming to be

sole owner of the house on the ground that he has

terminated the gratuitous licencse of the defendant.

Plaintiff also alleged that respondent (defendant) has

filed false case implicating the plaintiff and his

wife. Plaintiff further stated that wife of the

plaintiff has been subjected to various threats and

violence in the hands of the defendant on several

occasions. On the other hand, the defendant does not

dispute that the house was recorded in the name of the

plaintiff and in her application filed under the

Domestic Violence Act, she stated that plaintiff is the

owner of the suit property but in the written statement

filed in the suit, she pleaded that house has been

purchased by joint family funds. The Trial Court on

the basis of admission made by the defendant in her

application filed under Section 12 of the D.V. Act

before the Metropolitan Magistrate that the plaintiff

is owner of the house has decreed the suit under

Section 12(6). 

90

92. Even if for argument’s sake, we proceed on the

basis that the plaintiff is the sole owner of the

house, whether on the aforesaid ground, the Trial Court

could have decreed the suit under Order XII Rule 6 CPC

without adverting to the defence which was taken by the

defendant to resist the suit is the question to be

considered. Section 26 of the Act, 2005 contains

heading “Reliefs in other suits and legal proceedings”.

Section 26, which is relevant for the present

discussion is extracted for ready reference:-

“26. Relief in other suits and legal

proceedings.-(1) Any relief available under

sections 18, 19, 20, 21 and 22 may also be

sought in any legal proceeding, before a civil

court, family court or a criminal court,

affecting the aggrieved person and the

respondent whether such proceeding was

initiated before or after the commencement of

this Act.

(2) Any relief referred to in sub-section

(1) may be sought for in addition to and along

with any other relief that the aggrieved person

may seek in such suit or legal proceeding

before a civil or criminal court.

(3) In case any relief has been obtained

by the aggrieved person in any proceedings

other than a proceeding under this Act, she

91

shall be bound to inform the Magistrate of the

grant of such relief.”

93. As per Section 26, any relief available under

Sections 18, 19, 20, 21 and 22 of the Act, 2005 may

also be sought in any legal proceeding, before a civil

court, family court or a criminal court being the

aggrieved person. Thus, the defendant is entitled to

claim relief under Section 19 in suit, which has been

filed by the plaintiff. Section 26 empowers the

aggrieved person to claim above relief in Civil Courts

also. In the present suit, it was defence of the

defendant that the house being the shared household,

she is entitled to reside in the house as per Section

17(1) of Act, 2005. This Court had occasion to consider

provision of Section 26 in Vaishali Abhimanyu Joshi Vs.

Nanasaheb Gopal Joshi, (2017) 14 SCC 373. In the above

case, the appellant was married with one Abhimanyu with

whom she was residing in suit Flat No.4, 45/4, Arati

Society, Shivvihar Colony, Paud Fata, Pune. The

husband filed a suit for divorce against the appellant.

92

The father-in-law filed a suit in Small Cause Court for

mandatory injunction praying that defendant be directed

to stop the occupation and use of the suit flat. The

appellant filed a written statement in the suit

claiming that although the flat bears the name of the

respondent but she is residing in the suit flat. She

filed a counter claim claiming that flat is a shared

household and the suit be dismissed. The counter claim

was rejected by the Judge, Small Cause Court, against

which revision as well as the writ petition was

dismissed. This Court noted the question, which arose

for consideration in the above case in paragraph 16,

which is to the following effect:-

“16. As noted above, the only question to

be answered in this appeal is as to whether the

counter claim filed by the appellant seeking

right of residence in accordance with Section

19 of the 2005 Act in a suit filed by the

respondent, her father-in-law under the

Provincial Small Cause Courts Act, 1887 is

entertainable or not. Whether the provisions of

the 1887 Act bar entertainment of such

counterclaim, is the moot question to be

answered………………”

 

93

94. After noticing the provision of Section 26 of the

Act, this Court made following observations in

paragraphs 23 and 24:-

“23. Section 26 of the Act is a special

provision which has been enacted in the

enactment. Although, Chapter IV of the Act

containing Section 12 to Section 29 contains

the procedure for obtaining orders of reliefs

by making application before the Magistrate

whereas steps taken by the Magistrate and

different categories of reliefs could be

granted as noted in Sections 18 to 22 and

certain other provisions. Section 26 provides

that any relief available under Sections 18 to

22 may also be sought in any legal proceedings,

before a civil court, family court or a

criminal court, affecting the aggrieved person

and the respondent. Section 26 is material for

the present case since the appellant has set up

her counterclaim on the basis of this section

before the Judge, Small Cause Court. Section 26

is extracted below:

“26. Relief in other suits and

legal proceedings.—(1) Any relief

available under Sections 18, 19, 20,

21 and 22 may also be sought in any

legal proceeding, before a civil

court, family court or a criminal

court, affecting the aggrieved person

and the respondent whether such

proceeding was initiated before or

after the commencement of this Act.

(2) Any relief referred to in subsection (1) may be sought for in

addition to and along with any other

94

relief that the aggrieved person may

seek in such suit or legal proceeding

before a civil or criminal court.

(3) In case any relief has been

obtained by the aggrieved person in

any proceedings other than a

proceeding under this Act, she shall

be bound to inform the Magistrate of

the grant of such relief.”

24. There cannot be any dispute that

proceeding before the Judge, Small Cause Court

is a legal proceeding and the Judge, Small

Cause Court is a civil court. On the strength

of Section 26, any relief available under

Sections 18 to 22 of the 2005 Act, thus, can

also be sought by the aggrieved person.”

95. This Court held that Section 26 has to be

interpreted in a manner to effectuate the purpose and

object of the Act. This Court held that the

determination of claim of the aggrieved person was

necessary in the suit to avoid multiplicity of

proceedings. This court laid down following in

paragraphs 40 and 41:-

“40. Section 26 of the 2005 Act has to be

interpreted in a manner to effectuate the very

purpose and object of the Act. Unless the

determination of claim by an aggrieved person

seeking any order as contemplated by the 2005

95

Act is expressly barred from consideration by a

civil court, this Court shall be loath to read

in bar in consideration of any such claim in

any legal proceeding before the civil court.

When the proceeding initiated by the plaintiff

in the Judge, Small Cause Court alleged

termination of gratuitous licence of the

appellant and prays for restraining the

appellant from using the suit flat and permit

the plaintiff to enter and use the flat, the

right of residence as claimed by the appellant

is interconnected with such determination and

refusal of consideration of claim of the

appellant as raised in her counterclaim shall

be nothing but denying consideration of claim

as contemplated by Section 26 of the 2005 Act

which shall lead to multiplicity of

proceedings, which cannot be the object and

purpose of the 2005 Act.

41. We, thus, are of the considered opinion

that the counterclaim filed by the appellant

before Judge, Small Cause Court in Civil Suit

No. 77 of 2013 was fully entertainable and the

courts below committed error in refusing to

consider such claim.”

96. In view of the ratio laid down by this court in the

above case, the claim of the defendant that suit

property is shared household and she has right to

reside in the house ought to have been considered by

the Trial Court and non-consideration of the

96

claim/defence is nothing but defeating the right, which

is protected by Act, 2005.

97. We have noticed the law laid down by this Court in

S.M. Asif Vs. Virender Kumar Bajaj (supra) where this

Court in paragraph 8 has laid down following:-

“8. The words in Order 12 Rule 6 CPC “may”

and “make such order …” show that the power

under Order 12 Rule 6 CPC is discretionary and

cannot be claimed as a matter of right.

Judgment on admission is not a matter of right

and rather is a matter of discretion of the

court. Where the defendants have raised

objections which go to the root of the case, it

would not be appropriate to exercise the

discretion under Order 12 Rule 6 CPC. The said

rule is an enabling provision which confers

discretion on the court in delivering a quick

judgment on admission and to the extent of the

claim admitted by one of the parties of his

opponent's claim.”

98. The power under Order XII Rule 6 is discretionary

and cannot be claimed as a matter of right. In the

facts of the present case, the Trial Court ought not to

have given judgment under Order XII Rule 6 on the

admission of the defendant as contained in her

application filed under Section 12 of the D.V. Act.

97

Thus, there are more than one reason for not approving

the course of action adopted by Trial Court in passing

the judgment under Order XII Rule 6. We, thus, concur

with the view of the High Court that the judgment and

decree of the Trial Court given under Order XII rule 6

is unsustainable.

Question No.5

99. Section 2(q) defines the ‘respondent’ in following

words:

“2(q) "respondent" means any adult male person

who is, or has been, in a domestic relationship

with the aggrieved person and against whom the

aggrieved person has sought any relief under

this Act:

Provided that an aggrieved wife or female

living in a relationship in the nature of a

marriage may also file a complaint against a

relative of the husband or the male partner;”

100. There are two conditions for a person to be

treated to be respondent within the meaning of Section

2(q), i.e., (i) in a domestic relationship with the

aggrieved person, and (ii) against whom the aggrieved

person has sought any relief under Act, 2005. It is to

98

be noticed that the expression “any adult male person”

occurring in Section 2(q) came for consideration before

this Court in Hiral P. Harsora and others Vs. Kusum

Narottamdas Harsora and others, (2016) 10 SCC 165,

where this Court has struck down the expression “adult

male”. This Court held that “adult male person”

restricting the meaning of respondent in Section 2(q)

to only “adult male person” is not based on any

intelligible differentia having rational nexus with

object sought to be achieved. This Court struck down

the word “adult male”. Hence, it is now permissible

under definition of Section 2(q) to include females

also.

101. The defendant in her application filed under

Section 12 on 20.11.2015 in the Court of Additional

Chief Metropolitan Magistrate impleaded Satish Chandra

Ahuja as respondent No.2. Thus, in the domestic

violence proceedings initiated by the defendant,

plaintiff was the respondent. As noted above, under

Section 26 of the Act, 2005 any relief available under

99

Sections 18, 19, 20, 21 and 22 may also be sought in

any legal proceedings, before a Civil Court. The

defendant in her written statement claimed that she is

entitled to reside in the premises of suit property it

being her shared household.

102. Learned counsel for the appellant submitted that in

the suit in question the defendant has not sought for

any relief under Section 19. It is true that no

separate application or separate prayer has been made

by the defendant in the suit for grant of any relief

under Section 19 but in her pleadings she has resisted

the claim of plaintiff on the ground that she has a

right to reside in the suit property it being her

shared household. Thus, the question whether the suit

premises is shared household of the defendant and she

has right in the shared household so as the decree

before the Trial Court can be successfully resisted

were required to be determined by the Trial Court. We

are further of the view that when in the suit defendant

has pleaded to resist the decree on the ground of her

100

right of residence in the suit property it was for her

to prove her claim in the suit both by pleadings and

evidence.

103. As noted above, one of the conditions to treat a

person as a respondent is that “against whom the

aggrieved person has sought any relief under the Act”.

The defendant in her pleadings having claimed that she

has right of residence in the suit property, she for

successful resisting the suit has to plead and prove

that she has been subjected to any act of domestic

violence by the respondent, which is implicit in the

definition of the aggrieved person itself as given in

the Section 2(a) of the Act, 2005. It is, further,

relevant to notice that although learned Magistrate

passed an interim order in the application filed by the

defendant under Section 12 on 26.11.2016 but said order

was interim order which was passed on the satisfaction

of the Magistrate that “the application prima facie

disclosed that the respondent is committing or has

committed an act of domestic violence”. For granting

101

any relief by the Civil Court under Section 19 it has

to be proved that the respondent is committing or has

committed an act of domestic violence on the aggrieved

person. To treat a person as the “respondent” for

purposes of Section 2(q) it has to be proved that

person arrayed as respondent has committed an act of

domestic violence on the aggrieved person.

104. We, thus, are of the view that for the purposes of

determination of right of defendant under Sections 17

and 19 read with Section 26 in the suit in question the

plaintiff can be treated as “respondent”, but for the

grant of any relief to the defendant or for successful

resisting the suit of the plaintiff necessary

conditions for grant of relief as prescribed under the

Act, 2005 has to be pleaded and proved by the

defendant, only then the relief can be granted by the

Civil Court to the defendant.

Question No.6

102

105. Section 17 of the Act has two sub-sections which

engraft two independent rights. According to subsection (1) notwithstanding anything contained in any

other law for the time being in force, every woman in a

domestic relationship shall have the right to reside in

the shared household, whether or not she has any right,

title or beneficial interest in the same. This right

has been expressly granted to every woman in domestic

relationship to fulfill the purpose and objective of

the Act. Although under the statute regulating personal

law the woman has right to maintenance, every wife has

right of maintenance which may include right of

residence, the right recognized by sub-section (1) of

Section 17 is new and higher right conferred on every

woman.

106. The right is to be implemented by an order under

Section 19, on an application filed under sub-section

(1) of Section 12. Sub-section (2) of Section 17,

however, contains an exception in the right granted by

sub-section (2), i.e., “save in accordance with the

103

procedure established by law”. Sub-section (2) of

Section 17, thus, contemplates that aggrieved person

can be evicted or excluded from the shared household in

accordance with the procedure established by law. What

is the meaning and extent of expression “save in

accordance with the procedure established by law” is a

question which has come up for consideration in this

appeal. Whether the suit filed by the plaintiff for

mandatory and permanent injunction against the

defendant in the Civil Court is covered by the

expression “save in accordance with the procedure

established by law”. We may further notice that the

learned Magistrate while passing the interim order on

26.11.2016 in favour of the defendant on her

application filed under Section 12 has directed that

“the respondent shall not alienate the alleged shared

household nor would they dispossess the complainant or

their children from the same without orders of a

Competent Court”. The Magistrate, thus, has provided

that without the orders of Competent Court the

104

applicant (respondent herein) should not be

dispossessed. In the present case, interim order

specifically contemplates that it is only by the order

of the Competent Court respondent shall be

dispossessed.

107. We may take an example, where a final order has

been passed by the Magistrate under Section 12. What is

the nature and life of the said order? Section 25(2)

itself contemplates an eventuality when order passed

under the Act can be altered, modified or revoked.

Section 25(2) provides:

“Section 25. Duration and alteration of

orders.-

(1) xxx xxx xxx

(2) If the Magistrate, on receipt of an

application from the aggrieved person or the

respondent, is satisfied that there is a change

in the circumstances requiring alteration,

modification or revocation of any order made

under this Act, he may, for reasons to be

recorded in writing pass such order, as he may

deem appropriate.”

105

108. Whether apart from powers of Magistrate under

Section 25(2) of the Act, 2005, the Act, 2005

contemplates any other eventuality when despite the

order of residence under Section 19 an aggrieved person

can be evicted or dispossessed.

109. The right to reside in shared household as granted

by Section 17 itself contemplates an exception in

express words, i.e., “save in accordance with the

procedure established by law”.

110. The procedure prescribed for proceedings under

Section 19 as provided in Section 28 of the Act is as

per the provisions of the Code of Criminal Procedure,

1973. Section 28 of the Act, 2005, provides as

follows:-

“28. Procedure.- (1) Save as otherwise provided

in this Act, all proceedings under sections 12,

18,19,20,21,22 and 23 and offences under

section 31 shall be governed by the provisions

of the Code of Criminal Procedure, 1973(2 of

1974).

(2) Nothing in sub-section (1) shall prevent

the court from laying down its own procedure

106

for disposal of an application under section 12

or under sub-section (2) of section 23.”

111. The rules have been framed under the Act, 2005,

namely “The Protection of Women from Domestic Violence

Rules, 2006”. Rule 5 deals with Domestic Incident

Report which is to be submitted by protection officer

in Form I. The Form I is part of Rule which contains

details in various columns to enable the Magistrate to

take appropriate decision. Rule 6 provides that every

application of the aggrieved person under Section 12

shall be in Form-II or as nearly as possible thereto.

Form-II is again part of Rule which contains various

details including orders required, residence orders,

under Section 19, monetary relief under Section 20,

details of previous litigation, if any, and other

details to enable the Magistrate to take appropriate

decision. Rule 6 sub-Rule (4) provides that for

obtaining an interim ex-parte order under Section 23,

an affidavit is to be filed in Form-III. The Form-III

is an affidavit of an aggrieved person or the person

filing affidavit on behalf of his ward, daughter, etc.

107

The Act and the Rules thus provide for a procedure and

manner of filing an application for obtaining a relief

under Act, 2005. The Act, 2005, is an special Act which

provides for manner and procedure for obtaining relief

by an aggrieved person.

112. The provision of Section 145 of Cr.P.C. in this

context may be noticed. Section 145 of Cr.P.C. provides

for procedure where dispute concerning land or water is

likely to cause breach of peace. Under Section 145

Cr.P.C. in case Magistrate is satisfied that a dispute

likely to cause a breach of the peace exists, he may

require the parties to attend the Court and to decide

whether any and which of the parties was, at the date

of the order made by him under sub-section (1), in

possession of the subject of dispute. Sub-section (6)

of Section 145 Cr.P.C. contemplates issuance of the

order by the Magistrate declaring such party to be

entitled to such possession. Sub-section (6), however,

contemplates that the parties to be entitled to

possession thereof until evicted therefrom in due

108

course of law. The eviction in due course of law was

contemplated to be by a competent court.

113. This Court had occasion to consider the expression

“until evicted therefrom in due course of law” as

occurring in Section 145(6) in Shanti Kumar Panda Vs.

Shakuntala Devi, (2004) 1 SCC 438. This Court held in

the above case that the purpose of provisions of

Section 145 Cr.P.C. is to provide a speedy and summary

remedy so as to prevent a breach of the peace by

submitting the dispute to the Executive Magistrate for

resolution as between the parties disputing the

question of possession over the property. This Court

held that the unsuccessful party in proceedings under

Section 145 Cr.P.C. ought to sue for recovery of

possession seeking a decree or order for restoration of

possession. In paragraph 12 following was laid down:

“12. What is an eviction "in due course of law"

within the meaning of Sub-section (6) of

Section 145 of the Code? Does it mean a suit or

proceedings directing restoration of possession

between the parties respectively unsuccessful

and successful in proceedings under Section 145

or any order of competent court which though

109

not expressly directing eviction of successful

party, has the effect of upholding the

possession or entitlement to possession of the

unsuccessful party as against the said

successful party. In our opinion, which we

would buttress by reasons stated shortly

hereinafter, ordinarily a party unsuccessful in

proceedings under Section 145 ought to sue for

recovery of possession seeking a decree or

order for restoration of possession. However, a

party though unsuccessful in proceedings under

Section 145 may still be able to successfully

establish before the competent court that it

was actually in possession of the property and

is entitled to retain the same by making out a

strong case demonstrating the finding of the

Magistrate to be apparently incorrect.”

114. This Court further held that finding recorded by

the Magistrate under Section 145 Cr.P.C. does not bind

when the matter comes for adjudication before competent

court. This Court explained expression “until evicted

therefrom in due course of law” mean “any court which

has jurisdictional competence to decide the question of

title or rights to the property or entitlement to

possession”. In paragraph 17 of the judgment following

was observed:

“17………………The words 'until evicted

therefrom in due course of law' as occurring in

Sub-section (6) of Section 145' mean the

110

eviction of the party successful before the

Magistrate, consequent upon the adjudication of

title or right to possession by a competent

court; that does not necessarily mean a decree

of eviction. The party unsuccessful before the

Magistrate may dispute the correctness of the

finding arrived at by the Magistrate and is at

liberty to show before the competent court that

it had not dispossessed the successful party or

that it is the unsuccessful party and not the

successful party who was actually in possession

and the finding to the contrary arrived at by

the Magistrate was wholly or apparently

erroneous and unsustainable in law.”

115. Summarising the law in the context of Sections 145

and 146 Cr.P.C. the effects of the order of Magistrate

were recorded by this Court in paragraph 23, relevant

part of which for the present case is as follows:

“23. For the purpose of legal proceedings

initiated before a competent court subsequent

to the order of an Executive Magistrate under

Sections 145/146 of the Code of Criminal

Procedure, the law as to the effect of the

order of the Magistrate may be summarized as

under:-

(1) The words 'competent court' as

used in Sub-section (1) of Section 146

of the code do not necessarily mean a

civil court only. A competent court is

one which has the jurisdictional

competence to determine the question

of title or the rights of the parties

with regard to the entitlement as to

111

possession over the property forming

subject matter of proceedings before

the Executive Magistrate;

(2) A party unsuccessful in an order

under Section 145(1) would initiate

proceedings in a competent court to

establish its entitlement to

possession over the disputed property

against the successful party,

Ordinarily, a relief of recovery of

possession would be appropriate to be

sought for. In legal proceedings

initiated before a competent court

consequent upon attachment under

Section 146(1) of the Code it is not

necessary to seek relief of recovery

of possession. As the property is held

custodia legis by the Magistrate for

and on behalf of the party who would

ultimately succeed from the court it

would suffice if only determination of

the rights with regard to the

entitlement to the possession is

sought for. Such a suit shall not be

bad for not asking for the relief of

possession.

(3) A decision by a criminal court

does not bind the civil court while a

decision by the civil court binds the

criminal court. An order passed by the

Executive Magistrate in proceedings

under Sections 145/146 of the Code is

an order by a criminal court and that

too based on a summary enquiry. The

order is entitled to respect and

weight before the competent court at

the interlocutory stage. At the stage

of final adjudication of rights, which

112

would be on the evidence adduced

before the court, the order of the

Magistrate is only one out of several

pieces of evidence.

(4) ..... ..... .....”

116. Drawing the analogy from the above case, we are of

the opinion that the expression “save in accordance

with the procedure established by law”, in Section

17(2) of the Act, 2005 contemplates the proceedings in

court of competent jurisdiction. Thus, suit for

mandatory and permanent injunction/eviction or

possession by the owner of the property is maintainable

before a Competent Court. We may further notice that in

sub-section (2) the injunction is “shall not be evicted

or excluded from the shared household save in

accordance with procedure established by law”. Thus,

the provision itself contemplates adopting of any

procedure established by law by the respondent for

eviction or exclusion of the aggrieved person from the

shared household. Thus, in appropriate case, the

competent court can decide the claim in a properly

113

instituted suit by the owner as to whether the women

need to be excluded or evicted from the shared

household. One most common example for eviction and

exclusion may be when the aggrieved person is provided

same level of alternate accommodation or payment of

rent as contemplated by Section 19 sub-section (f)

itself. There may be cases where plaintiff can

successfully prove before the Competent Court that the

claim of plaintiff for eviction of respondent is

accepted. We need not ponder for cases and

circumstances where eviction or exclusion can be

allowed or refused. It depends on facts of each case

for which no further discussion is necessary in the

facts of the present case. The High Court in the

impugned judgment has also expressed opinion that suit

filed by the plaintiff cannot be held to be nonmaintainable with which conclusion we are in agreement.

117. In case, the shared household of a woman is a

tenanted/allotted/licensed accommodation where tenancy/

allotment/license is in the name of husband, father-in-

114

law or any other relative, the Act, 2005 does not

operate against the landlord/lessor/licensor in

initiating an appropriate proceedings for eviction of

the tenant/allottee/licensee qua the shared household.

However, in case the proceedings are due to any

collusion between the two, the woman, who is living in

the shared household has right to resist the

proceedings on all grounds which the

tenant/lessee/licensee could have taken in the

proceedings. The embargo under Section 17(2) of Act,

2005 of not to be evicted or excluded save in

accordance with the procedure established by law

operates only against the “respondent”, i.e., one who

is respondent within the meaning of Section 2(q) of

Act, 2005.

Question No.7

118. Learned counsel for the appellant challenging the

direction issued by the High Court that the husband of

respondent be impleaded by the Trial Court by invoking

115

suo moto powers under Order I Rule 10 CPC, submits that

no relief having been claimed against the son of the

appellant, he (son) was neither necessary nor proper

party. Learned counsel for the appellant has relied on

the judgments of this Court in Razia Begum Vs.

Sahebzadi Anwar Begum and others, AIR 1958 SC 886 and

Ramesh Hirachand Kundanmal Vs. Municipal Corporation of

Greater Bombay and others, (1992) 2 SCC 524. Latter

judgment of this Court discussing judgment of Razia

Begum has laid down following in paragraphs 10 and 12:

“10. The power of the Court to add parties

under Order I Rule 10, CPC, came up for

consideration before this Court in Razia Begum

(supra). In that case it was pointed out that

the Courts in India have not treated the matter

of addition of parties as raising any question

of the initial jurisdiction of the Court and

that it is firmly established as a result of

judicial decisions that in order that a person

may be added as a party to a suit, he should

have a direct interest in the subject-matter of

the litigation whether it be the questions

relating to moveable or Immovable property.

12. Sinha, J. speaking for the majority

said that a declaratory judgment in respect of

a disputed status will be binding not only upon

parties actually before the Court but also upon

persons claiming through them respectively. The

116

Court laid down the law that in a suit relating

to property in order that a person may be added

as a party, he should have a direct interest as

distinguished from a commercial interest in the

subject-matter of the litigation. Where the

subject-matter of a litigation is a declaration

as regards status or a legal character, the

rule of presence of direct interest may be

relaxed in a suitable case where the Court is

of the opinion that by adding that party it

would be in a better position effectually and

completely to adjudicate upon the controversy.

…………”

119. There can be no dispute with the preposition of

law as laid down by this Court in the above two cases.

In the present case, although plaintiff has not claimed

any relief against his son, Raveen Ahuja, the husband

of the respondent, hence, he was not a necessary party

but in view of the fact that respondent has pleaded her

right of residence in shared household relying on

Sections 17 and 19 of the Act, 2005 and one of the

rights which can be granted under Section 19 is right

of alternate accommodation, the husband is a proper

party. The right of maintenance as per the provisions

of Hindu Adoption and Maintenance Act, 1956 is that of

the husband, hence he may be a proper party in cases

117

when the Court is to consider the claim of respondent

under Sections 17 and 19 read with Section 26 of the

Act, 2005.

120. Civil Procedure Code, Order I Rule 10 empowers the

Court at any stage of the proceedings either on an

application or suo moto to add a party either as

plaintiff or defendant, whose presence before the Court

may be necessary in order to enable the Court

effectively and completely adjudicate upon and settle

all the questions involved in the suit. The High Court

in paragraph 56(i) has issued following directions:-

“56. In these circumstances, the impugned

judgments cannot be sustained and are

accordingly set aside. The matters are remanded

back to the Trial Court for fresh adjudication

in accordance with the directions given

hereinbelow:

(i)At the first instance, in all

cases where the respondent’s son/the

appellant’s husband has not been

impleaded, the Trial Court shall

direct his impleadment by invoking

its suo motu powers under Order I

Rule 10 CPC.

XXXXXXXXXXXXXXX”

118

121. The above direction is a little wide and

preemptory. In event, the High Court was satisfied

that impleadment of husband of defendant was necessary,

the High Court itself could have invoked the power

under Order I Rule 10 and directed for such

impleadment. When the matter is remanded back to the

Trial Court, Trial Court’s discretion ought not to have

been fettered by issuing such a general direction as

noted above. The general direction issued in paragraph

56(i) is capable of being misinterpreted. Whether the

husband of an aggrieved person in a particular case

needs to be added as plaintiff or defendant in the suit

is a matter, which need to be considered by the Court

taking into consideration all aspects of the matter.

We are, thus, of the view that direction in paragraph

56(i) be not treated as a general direction to the

Courts to implead in all cases the husband of an

aggrieved person and it is the Trial Court which is to

exercise the jurisdiction under Order I Rule 10. The

direction in paragraph 56(i) are, thus, need to be read

119

in the manner as indicated above.

122. Now, coming to the present case, we have already

observed that although husband of the defendant was not

a necessary party but in view of the pleadings in the

written statement, the husband was a proper party.

Question No.8

123. While noticing the facts and events of the present

case, we have noticed that in complaint filed by the

respondent under Section 12 of Act, 2005, an interim

order was passed in her favour directing the respondent

arrayed in the complaint not to dispossess the

applicant without orders of a competent court. Suit

giving rise to this appeal was filed thereafter praying

for a mandatory and permanent injunction against the

defendant-respondent. High Court in the impugned

judgment has observed that the effect of the pendency

of proceeding under D.V. Act, 2005 has not been taken

note of. With regard to various precedents, which were

relied before the High Court by learned counsel for the

120

appellant, similar observations were made by the High

Court that those judgments do not consider the effect

of initiation and pendency of proceedings under Act,

2005.

124. What is the effect of an interim order or a final

order passed under Section 19 of the Act, 2005 on a

civil proceeding initiated in a court of competent

jurisdiction, is a question, which need to be answered?

Whether in view of the pendency of proceedings under

the D.V. Act any proceedings could not have been

initiated in a Civil Court of competent jurisdiction or

whether the orders passed under D.V. Act giving right

of residence by interim or final order are binding in

Civil Court proceedings and Civil court could not have

taken any decision contrary to directions issued in

D.V. Act are the related questions to be considered.

125. Section 17(2) itself contemplates eviction or

exclusion of aggrieved person from a shared household

in accordance with the procedure established by law.

The conclusion is inescapable that a proceeding in a

121

competent court for eviction or exclusion is

contemplated by the Statutory Scheme of Act, 2005.

Thus, there is neither any express nor implied bar in

initiation of civil proceedings in a Court of competent

jurisdiction. Further, Section 26 also contemplate

grant of relief of right of residence under Section 19

in any legal proceedings before a Civil Court or Family

Court or Criminal Court affecting the aggrieved person.

The proceedings might be initiated by aggrieved person

or against the aggrieved person herself before or after

the commencement of Act, 2005. Thus, initiation of the

proceedings in Civil Court and relief available under

Section 19 of the Act, 2005 is contemplated by the

statutory scheme delineated by the Act, 2005. There

may be also instances where conflict may arise in the

orders issued under D.V. Act, 2005 as well as the

judgment of Civil Court. What is the effect of such

conflict in the decision is another related issue which

needs to be answered? Whether the principle of res

judicata can be pressed in respect to any decision

122

inter parties in respect to criminal and civil

proceedings?

126. The applicability of principle of res judicata is

well known and are governed by provisions of Section 11

C.P.C., which principle also has been held to be

applicable in other proceedings. There can be no

applicability of principle of res judicata when orders

of Criminal Courts are pitted against proceedings in

Civil Court. With regard to criminal proceedings Code

of Criminal Procedure also contains provision that a

person who has once been tried by a Court of competent

jurisdiction for an offence and convicted or acquitted

of such offence shall, while such conviction or

acquittal remains in force, not be liable to be tried

again for the same offence nor on the same facts for

any other offence. The principle enumerated in Section

300 Cr.P.C. may be relevant with respect to two

criminal proceedings against same accused, which might

have no relevance in reference to one criminal

proceeding and one civil proceeding.

123

127. Sections 40 to 44 of the Indian Evidence Act, 1872

which deal with “judgments of Courts of justice when

relevant” throw considerable light on the subject which

is under consideration before us. Sections 40 to 44 of

the Indian Evidence Act are as follows:

“Judgments of courts of justice when relevant

40. Previous judgments relevant to bar a second

suit or trial.— The existence of any judgment,

order or decree which by law prevents any Court

from taking cognizance of a suit or holding a

trial, is a relevant fact when the question is

whether such Court ought to take cognizance of

such suit or to hold such trial.

41. Relevancy of certain judgments in probate,

etc., jurisdiction.— A final judgment, order or

decree of a competent Court, in the exercise of

probate, matrimonial, admiralty or insolvency

jurisdiction, which confers upon or takes away

from any person any legal character, or which

declares any person to be entitled to any such

character, or to be entitled to any specific

thing, not as against any specified person but

absolutely, is relevant when the existence of

any such legal character, or the title of any

such person to any such thing, is relevant.

Such judgment, order or decree is

conclusive proof—

124

that any legal character which it confers

accrued at the time when such judgment,

order or decree came into operation;

that any legal character, to which it

declares any such person to be entitled,

accrued to that person at the time when

such judgment, order or decree declares it

to have accrued to that person;

that any legal character which it takes

away from any such person ceased at the

time from which such judgment, order or

decree declared that it had ceased or

should cease;

and that anything to which it declares any

person to be so entitled was the property

of that person at the time from which such

judgment, order or decree declares that it

had been or should be his property.

42. Relevancy and effect of judgments,

orders or decrees, other than those mentioned in

Section 41.—Judgments, orders or decrees other

than those mentioned in Section 41, are relevant

if they relate to matters of a public nature

relevant to the enquiry; but such judgments,

orders or decrees are not conclusive proof of

that which they state.

43. Judgments, etc., other than those mentioned

in Sections 40 to 42, when relevant.—Judgments,

orders or decrees, other than those mentioned in

Sections 40, 41 and 42, are irrelevant, unless

the existence of such judgment, order or decree,

125

is a fact in issue, or is relevant under some

other provision of this Act.

44. Fraud or collusion in obtaining judgment, or

incompetency of Court, may be proved.— Any party

to a suit or other proceeding may show that any

judgment, order or decree which is relevant

under Section 40, 41 or 42, and which has been

proved by the adverse party, was delivered by a

Court not competent to deliver it, or was

obtained by fraud or collusion.”

128. Section 40 renders admissible judgments which

operate as placing any bar on a suit or trial as plea

of res judicata or otherwise under some rule of law.

The scheme of D.V. Act, 2005 does not contemplate that

any judgment and order passed under Section 19 of the

said Act prevents any court from taking cognizance of a

suit or holding of trial; Section 41 deals with

relevancy of certain judgments in probate, matrimonial,

admirality and insolvency jurisdiction which are

conclusive not only against party but against all the

world. This Section enumerates four classes of

judgments. A decree of Civil Court in exercise of

matrimonial jurisdiction is also one of the judgments

126

which had been held to be relevant under Section 41.

The orders passed under Act, 2005 cannot be held to be

orders or judgments passed in exercise of any

matrimonial jurisdiction by the Court. The Act, 2005

is a special act on the subject of providing for

effective protection of the rights of women who are

victims of violence of any kind.

129. Section 42 deals with admissibility of judgments

relevant to matters of public nature though not between

the parties and privy but such judgments, orders or

decree are not conclusive proof of that they state.

Section 43 says that judgment other than those

mentioned in Sections 40 to 42 are irrelevant unless

the existence of judgment, order or decree is fact in

issue or is relevant under some other provisions of the

Act. In the facts of the present case, where there are

pleadings in the suit in question regarding proceeding

under Section 12 the existence of orders passed under

Act, 2005 are relevant and admissible in Civil

Proceedings. 

127

130. The proceedings under D.V. Act, 2005 are

proceedings which are to be governed by Code of

Criminal Procedure, 1973.

131. The procedure to be followed by the magistrate is

provided under Section 28 of the D.V. Act and as per

Section 28 of the D.V. Act, all proceedings under

Sections 12, 18, 19, 20, 21, 22 and 23 and offences

under Section 31 shall be governed by the provisions of

the Code of Criminal Procedure, 1973. Even sub-section

(2) of Section 28 provides that the magistrate can lay

down its own procedure for disposal of an application

under Section 12 or under sub-section (2) of Section

23. However, for other proceedings, the procedure is to

be followed as per the provisions of the Code of

Criminal Procedure, 1973. The procedure to be followed

under Section 125 shall be as per Section 126 of the

Cr.P.C. which includes permitting the parties to lead

evidence. Therefore, before passing any orders under

the D.V. Act, the parties may be permitted to lead

128

evidence. However, before any order is passed under

Section 12, the magistrate shall take into

consideration any domestic incident report received by

him from the protection officer or the service

provider. That does not mean that magistrate can pass

orders solely relying upon the domestic incident report

received by him from the protection officer or the

service provider. Even as per Section 36 of the D.V.

Act, the provisions of the D.V. Act shall be in

addition to, and not in derogation of the provisions of

any other law, for the time being in force. Even the

magistrate can also pass an interim order as per

Section 23 of the D.V. Act.

132. Considering Section 12(2) and Section 26(3), read

with Section 25(2), even the Legislature envisaged the

two independent proceedings, one before the magistrate

under the D.V. Act and another proceeding other than

the proceedings under the D.V. Act.

133. Even the Civil Court has to take into

129

consideration the relief already granted by the

Magistrate in the proceedings under the D.V. Act and

vice versa.

134. However, at the same time, it is to be observed

that in a case any relief available under Sections 18,

19, 20, 21 and 22 is sought by aggrieved person in any

legal proceedings before a civil court, family court or

a criminal court including the residence order, the

aggrieved person has to satisfy by leading evidence

that domestic violence has taken place and only on the

basis of the evidence led on being satisfied that the

domestic violence has taken place, the relief available

under Section 19 can be granted as Section 19(1)

specifically provides that while disposing of an

application under sub-Section 1 of Section 12, the

magistrate may, on being satisfied, that domestic

violence has taken place, pass the residence order.

135. At this stage, it is also required to be noted

that while passing the order of residence under Section

19, more particularly under sub-section 19(1)(b) as per

130

the proviso to Section 19(1), no order under clause(b)

shall be passed against any person who is a woman.

136. Therefore, on conjoint reading of Sections 12(2),

17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it

can safely be said that the proceedings under the D.V.

Act and proceedings before a civil court, family court

or a criminal court, as mentioned in Section 26 of the

D.V. Act are independent proceedings, like the

proceedings under Section 125 of the Cr. P.C. for

maintenance before the Magistrate and/or family court

and the proceedings for maintenance before a civil

court/ family court for the reliefs under the Hindu

Adoption and Maintenance Act. However, as observed

hereinabove, the findings/orders passed by the one

forum has to be considered by another forum.

137. Now, we proceed to examine effect of orders passed

under criminal proceedings, i.e., Act, 2005 on the

civil proceedings and consequence of any conflict in

proceedings under D.V. Act as well as civil

131

proceedings.

138. We make it clear that in the present case we are

called upon to examine the consequences and effect of

orders passed under Section 19 of D.V. Act, 2005 on

civil proceedings in a court of competent jurisdiction.

Thus, our consideration and exposition are limited qua

orders passed under Section 19 of D.V. Act only, i.e.,

a conflict between orders passed in a criminal

proceeding on a civil proceeding.

139. We may first notice the judgment of Constitution

Bench of this Court in M.S. Sheriff and Anr. Vs. State

of Madras and Ors., AIR 1954 SC 397. In the above case,

the appellants were sought to be prosecuted for perjury

under Section 193 IPC, which was directed by High Court

after an inquiry. Appeal was filed against the order

of the High Court directing the filing of a complaint

for perjury. The complainant had also filed a suit for

damages for wrongful confinement against the

appellants, who were accused, who were alleged to have

132

illegally detained the complainant. One of the

questions, which arose for consideration before this

Court was that which proceeding should be stayed, i.e.,

prosecution under Section 193 or suit for damages for

wrongful confinement. In the above context, following

observations were made by the Constitution Bench in

paragraph 15:-

“15. As between the civil and the criminal

proceedings we are of the opinion that the

criminal matters should be given precedence.

There is some difference of opinion in the High

Courts of India on this point. No hard and fast

rule can be laid down but we do not consider

that the possibility of conflicting decisions

in the civil and criminal courts is a relevant

consideration. The law envisages such an

eventuality when it expressly refrains from

making the decision of one court binding on the

other, or even relevant, except for certain

limited purposes, such as sentence or damages.

The only relevant consideration here is the

likelihood of embarrassment.”

140. In the above case, this Court had observed that

possibility of conflicting decisions in the civil and

criminal courts was not a relevant consideration. This

Court had further observed that “The law envisages such

an eventuality when it expressly refrains from making

133

the decision of one court binding on the other, or even

relevant, except for certain limited purposes……….”

141. This Court in M.S. Sheriff (supra), directed that

civil suits should be stayed till the criminal

proceedings have finished. The issue before the

Constitution Bench was limited as of stay of one out of

two proceedings. In the present proceedings, we are not

faced with any question regarding stay of any of the

proceedings”, however, “factum of possibility of

conflicting decisions” was noticed by this Court qua

civil and criminal proceedings which is a possible and

probable consequence of decision taken in two

proceedings.

142. We may notice a judgment of this Court dealing

with Section 43 of the Indian Evidence Act, i.e., S.M.

Jakati and Anr. Vs. S.M. Borkar and Ors., AIR 1959 SC

282. This Court in the above case had occasion to

consider the relevancy of the effect and consequence of

an order passed by Deputy Registrar of Cooperative

134

Society in a suit filed for partition of joint family

property, which was sold in auction in consequence of

orders passed by the Deputy Registrar for the Society.

The relevancy of orders of Deputy Registrar under

Section 43 of the Evidence Act came to be considered

and this Court noticing the principle of Section 43 of

Evidence Act laid down following in paragraph 11:-

“11. In the case now before us the appellants

have attempted to prove that the debt fell

within the term Avyavaharika by relying upon

the payment order and the findings given by the

Deputy Registrar in the payment order where the

liability was inter alia based on a breach of

trust. Any opinion given in the order of the

Deputy Registrar as to the nature of the

liability of Defendant 1 M.B. Jakati cannot be

used as evidence in the present case to

determine whether the debt was Avyavaharika or

otherwise. The order is not admissible to prove

the truth of the facts therein stated and

except that it may be relevant to prove the

existence of the judgment itself, it will not

be admissible in evidence. Section 43 of the

Evidence Act, the principle of which is that

judgments excepting those upon questions of

public and general interest, judgment in rem or

when necessary to prove the existence of a

judgment, order or decree, which may be a fact

in issue are irrelevant………………………”

135

143. We may notice a Three Judge Bench judgment of this

Court in K.G. Premshankar Vs. Inspector of Police and

Anr., (2002) 8 SCC 87 in which case this Court had

occasion to consider the effect of decision of civil

court on the criminal proceeding. This Court had also

occasion to consider Sections 40 to 43 of Indian

Evidence Act in the said judgment. The Three Judge

Bench was answering the reference made on 09.11.1998 by

which an earlier judgment of this Court in V.M. Shah

Vs. State of Maharashtra (1995) 5 SCC 767 required a

reconsideration. This Court in V.M. Shah’s case had

laid down that “the finding recorded by the criminal

court stands superseded by the finding recorded by the

civil court” thereby the finding of civil court got

precedence over the finding recorded by the criminal

court. Before this Court in K.G. Premshankar case

prosecution was launched against the appellants,

cognizance of which was taken by the Chief Judicial

Magistrate. Appellant filed a proceeding under Section

482 Cr.P.C. for quashing the prosecution, which was

136

rejected, against which matter was taken to this Court.

The complainant had also filed a suit for damages for

the alleged act before the civil court, which suit was

pending in the trial court at the stage of framing of

issues. Submission, which was raised before this court

was that the High Court ought to have dropped the

prosecution against the appellants as the civil court

has dismissed the suit, i.e., suit for damages filed

against the appellants. The submission of the

appellants was refuted by learned Additional Advocate

General, who relied on Sections 41, 42 and 43 of the

Evidence Act. It was contended that previous

proceedings are relevant only to limited extent and

criminal proceedings are not required to be dropped as

soon as a decree is passed in the civil suit. The

submission of learned Additional Advocate General has

been noticed in paragraph 15 of the judgment. This

Court accepted the submission of the learned Additional

Advocate General. Paragraphs 15 and 16 of the judgment

are as follows:-

137

“15. Learned Additional Solicitor-General Shri

Altaf Ahmed appearing for the respondents

submitted that the observation made by this

Court in V.M. Shah case [(1995) 5 SCC 767 :

1995 SCC (Cri) 1077] that

“the finding recorded by the criminal

court, stands superseded by the

finding recorded by the civil court

and thereby the finding of the civil

court gets precedence over the finding

recorded by the criminal court”

(SCC p. 770, para 11)

is against the law laid down by this Court in

various decisions. For this, he rightly

referred to the provisions of Sections 41, 42

and 43 of the Evidence Act and submitted that

under the Evidence Act to what extent judgments

given in the previous proceedings are relevant

is provided and therefore it would be against

the law if it is held that as soon as the

judgment and decree is passed in a civil suit

the criminal proceedings are required to be

dropped if the suit is decided against the

plaintiff who is the complainant in the

criminal proceedings.

16. In our view, the submission of learned

Additional Solicitor-General requires to be

accepted. Sections 40 to 43 of the Evidence Act

provide which judgments of courts of justice

are relevant and to what extent. Section 40

provides for previous judgment, order or a

decree which by law prevents any court while

taking cognizance of a suit or holding a trial,

to be a relevant fact when the question is

whether such court ought to take cognizance of

such suit or to hold such trial. Section 40 is

as under:

“40. Previous judgments relevant to

138

bar a second suit or trial.—The

existence of any judgment, order or

decree which by law prevents any court

from taking cognizance of a suit or

holding a trial, is a relevant fact

when the question is whether such

court ought to take cognizance of such

suit or to hold such trial.”

144. This Court noticing the Constitution Bench

judgment in M.S. Sheriff (supra) and few other

judgments had recorded its conclusion in paragraph 30

to the following effect:-

“30. What emerges from the aforesaid discussion

is — (1) the previous judgment which is final

can be relied upon as provided under Sections

40 to 43 of the Evidence Act; (2) in civil

suits between the same parties, principle

of res judicata may apply; (3) in a criminal

case, Section 300 CrPC makes provision that

once a person is convicted or acquitted, he may

not be tried again for the same offence if the

conditions mentioned therein are satisfied; (4)

if the criminal case and the civil proceedings

are for the same cause, judgment of the civil

court would be relevant if conditions of any of

Sections 40 to 43 are satisfied, but it cannot

be said that the same would be conclusive

except as provided in Section 41. Section 41

provides which judgment would be conclusive

proof of what is stated therein.”

145. This Court ultimately held that civil proceedings

as well as criminal proceedings are required to be

139

decided on the facts and evidences brought on the

record by the parties. Paragraphs 32, 33 and 34, which

are relevant, are quoted below:-

“32. In the present case, the decision rendered

by the Constitution Bench in M.S. Sheriff case

[AIR 1954 SC 397] would be binding, wherein it

has been specifically held that no hard-andfast rule can be laid down and that possibility

of conflicting decision in civil and criminal

courts is not a relevant consideration. The law

envisages

“such an eventuality when it expressly

refrains from making the decision of

one court binding on the other, or

even relevant, except for limited

purpose such as sentence or damages”.

33. Hence, the observation made by this Court

in V.M. Shah case [(1995) 5 SCC 767] that the

finding recorded by the criminal court stands

superseded by the finding recorded by the civil

court is not correct enunciation of law.

Further, the general observations made in Karam

Chand case [(1970) 3 SCC 694] are in context of

the facts of the case stated above. The Court

was not required to consider the earlier

decision of the Constitution Bench in M.S.

Sheriff case [AIR 1954 SC 397] as well as

Sections 40 to 43 of the Evidence Act.

34. In the present case, after remand by the

High Court, civil proceedings as well as

criminal proceedings are required to be decided

on the evidence, which may be brought on record

by the parties.”

140

146. We have noticed above judgment of this Court in

Shanti Kumar Panda (supra) while considering the

provisions under Sections 145 and 146 Cr.P.C. in

context of suit filed in a court of competent

jurisdiction in paragraphs 15 and 21 following was laid

down:-

“15. It is well settled that a decision by

a criminal court does not bind the civil court

while a decision by the civil court binds the

criminal court. (See Sarkar on Evidence, 15th

Edn., p. 845.) A decision given under Section

145 of the Code has relevance and is admissible

in evidence to show: (i) that there was a

dispute relating to a particular property; (ii)

that the dispute was between the particular

parties; (iii) that such dispute led to the

passing of a preliminary order under Section

145(1) or an attachment under Section 146(1),

on the given date; and (iv) that the Magistrate

found one of the parties to be in possession or

fictional possession of the disputed property

on the date of the preliminary order. The

reasoning recorded by the Magistrate or other

findings arrived at by him have no relevance

and are not admissible in evidence before the

competent court and the competent court is not

bound by the findings arrived at by the

Magistrate even on the question of possession

though, as between the parties, the order of

the Magistrate would be evidence of possession.

The finding recorded by the Magistrate does not

bind the court. The competent court has

jurisdiction and would be justified in arriving

141

at a finding inconsistent with the one arrived

at by the Executive Magistrate even on the

question of possession. Sections 145 and 146

only provide for the order of the Executive

Magistrate made under any of the two provisions

being superseded by and giving way to the order

or decree of a competent court. The effect of

the Magistrate's order is that burden is thrown

on the unsuccessful party to prove its

possession or entitlement to possession before

the competent court.

21. The order of the Magistrate under

Sections 145/146 of the Code is not only an

order passed by the criminal court but is also

one based on summary enquiry. The competent

court in any subsequent proceedings is free to

arrive at its own findings based on the

evidence adduced before it on all the issues

arising for decision before it. At the stage of

judgment by the civil court the order of the

Magistrate shall have almost no relevance

except for the purpose of showing that an

enquiry held by the Magistrate had resulted

into the given declaration being made on a

particular date. The competent court would be

free to record its own findings based on the

material before it even on the question of

possession which may be inconsistent with or

contrary to the findings arrived at by the

Magistrate.“

147. We may observe that the observations made by this

Court in Shanti Kumar Panda (supra) were in reference

to statutory scheme under Sections 145 and 146 Cr.P.C.

and had to be read in reference to statutory scheme

142

which came for consideration before this Court.

148. We may notice a Constitution Bench judgment of this

Court in Iqbal Singh Marwah and Anr. Vs. Meenakshi

Marwah and Anr., (2005) 4 SCC 370 where the

Constitution Bench laid down that there is neither any

statutory provision nor any legal principle that the

findings recorded in one proceeding may be treated as

final or binding in the other, as both the cases have

to be decided on the basis of the evidence adduced

therein. In paragraph 32, following was laid down:-

“32. Coming to the last contention that an

effort should be made to avoid conflict of

findings between the civil and criminal courts,

it is necessary to point out that the standard

of proof required in the two proceedings are

entirely different. Civil cases are decided on

the basis of preponderance of evidence while in

a criminal case the entire burden lies on the

prosecution and proof beyond reasonable doubt

has to be given. There is neither any statutory

provision nor any legal principle that the

findings recorded in one proceeding may be

treated as final or binding in the other, as

both the cases have to be decided on the basis

of the evidence adduced therein………………

XXXXXXXXXXXXXXXX“

143

149. In Seth Ramdayal Jat Vs. Laxmi Prasad, (2009) 11

SCC 545, this Court had occasion to consider the

provisions of Sections 41 to 43 of Indian Evidence Act

where this Court laid down that a judgment in a

criminal court is admissible for a limited purpose.

After noticing the provisions of Sections 40 to 43 of

Indian Evidence Act, this Court laid down following in

paragraph 13:-

“13. XXXXXXXXXXXXXX

A judgment in a criminal case, thus, is

admissible for a limited purpose. Relying only

on or on the basis thereof, a civil proceeding

cannot be determined, but that would not mean

that it is not admissible for any purpose

whatsoever.”

150. It was further held that a decision in a criminal

case is not binding in a civil case. In paragraph 15,

following was laid down:-

“15. A civil proceeding as also a criminal

proceeding may go on simultaneously. No statute

puts an embargo in relation thereto. A decision

in a criminal case is not binding on a civil

court. In M.S. Sheriff v. State of Madras [AIR

1954 SC 397], a Constitution Bench of this

Court was seized with a question as to whether

a civil suit or a criminal case should be

144

stayed in the event both are pending. It was

opined that the criminal matter should be given

precedence. In regard to the possibility of

conflict in decisions, it was held that the law

envisages such an eventuality when it expressly

refrains from making the decision of one court

binding on the other, or even relevant, except

for certain limited purposes, such as sentence

or damages. It was held that the only relevant

consideration was the likelihood of

embarrassment.”

151. In Vishnu Dutt Sharma Vs. Daya Sapra, (2009) 13

SCC 729, this Court again reiterated that a judgment of

a criminal court in civil proceedings will have only a

limited application and finding in a criminal

proceeding by no stretch of imagination would be

binding in a civil proceeding. Referring to Section 40

of the Indian Evidence Act, this Court laid down

following in paragraph 23:-

“23. XXXXXXXXXXXXXXXXXXXX

This principle would, therefore, be applicable,

inter alia, if the suit is found to be barred

by the principle of res judicata or by reason

of the provisions of any other statute. It does

not lay down that a judgment of the criminal

court would be admissible in the civil court

for its relevance is limited. (See Seth

Ramdayal Jat v. Laxmi Prasad [(2009) 11 SCC

545]. The judgment of a criminal court in a

civil proceeding will only have limited

145

application viz. inter alia, for the purpose as

to who was the accused and what was the result

of the criminal proceedings. Any finding in a

criminal proceeding by no stretch of

imagination would be binding in a civil

proceeding.”

152. A Two Judge Bench of this Court in Kishan Singh

(Dead) Through LRs. Vs. Gurpal Singh and Ors., (2010) 8

SCC 775 after noticing the several earlier judgments

concluded that finding of fact recorded by the civil

court do not have any bearing so as the criminal case

is concerned and vice versa. In paragraph 18,

following was laid down:-

“18. Thus, in view of the above, the law on the

issue stands crystallised to the effect that

the findings of fact recorded by the civil

court do not have any bearing so far as the

criminal case is concerned and vice versa.

Standard of proof is different in civil and

criminal cases. In civil cases it is

preponderance of probabilities while in

criminal cases it is proof beyond reasonable

doubt. There is neither any statutory nor any

legal principle that findings recorded by the

court either in civil or criminal proceedings

shall be binding between the same parties while

dealing with the same subject-matter and both

the cases have to be decided on the basis of

the evidence adduced therein. However, there

may be cases where the provisions of Sections

41 to 43 of the Evidence Act, 1872, dealing

146

with the relevance of previous judgments in

subsequent cases may be taken into

consideration.”

153. We take an example to further illustrate the

point. In the plaint of suit giving rise to this

appeal, the plaintiff has pleaded that the wife of the

plaintiff has been subjected to various threat and

violence in the hands of the defendant on several

occasions. In event, the suit is filed by wife of the

plaintiff against the defendant for permanent injection

and also praying for reliefs under Section 19[except

Section 19(1)(b)]. The suit be fully maintainable and

the prayers in the suit can be covered by the reliefs

as contemplated by Section 19 read with Section 26 of

the Act, 2005.

154. By a written statement, the defendant is sure to

resist the suit on the ground that she had already

filed an application under Section 12 where plaintiff

Dr. Prem kant Ahuja(mother-in-law of the defendant) is

one of the respondent and she may also place reliance

147

on the interim order dated 26.11.2016 restraining the

respondents which included Dr. Prem Kant Ahuja from

dispossessing the applicant except without obtaining an

order of competent Court. The order dated 26.11.2016

which was passed by the Magistrate under D.V. Act,

2005, shall be relevant evidence and fully admissible

in the civil suit, but the above order shall only be

one of the evidence in the suit but shall neither

preclude the civil court to determine the issues raised

in the suit or to grant the relief claimed by the

plaintiff Dr. Prem Kant Ahuja. The Civil Court in such

suit can consider the issues and may grant relief if

the plaintiff is able to prove her case. The order

passed under D.V. Act whether interim or final shall be

relevant and have to be given weight as one of evidence

in the civil suit but the evidentiary value of such

evidence is limited. The findings arrived therein by

the magistrate are although not binding on the Civil

Court but the order having passed under the Act, 2005,

which is an special Act has to be given its due weight.

148

155. We need to observe that in event a judgment of

criminal court is relevant as per Sections 40 to 43 of

Evidence Act in civil proceedings, the judgment can

very well be taken note of and there is no embargo on

the civil court to place reliance upon it as a

corroborative material. We may notice a judgment of

Madras High Court in K. Subramani Vs. Director of

Animal Husbandry, Chennai, (2009) 1 MLJ 363 where

Madras High Court has made following observations in

paragraph 7:-

“7. A decision of the Criminal Court does not

have the effect of binding nature on the

proceedings before the Civil Court including

the Motor Accident Claims Tribunal for the

reason that the proof in both the Civil and

Criminal cases are having two different

categories of standards. In criminal cases,

guilt of the accused must be proved beyond

reasonable doubt, while in civil cases, the

rights of the parties or matter in issue shall

be decided on preponderance of probabilities.

If a party to the case relies upon a decision

of the criminal Court and insists the Civil

Court to give credence to the said decision, it

is incumbent upon the party to gather further

materials in the case, which would support the

observations and the decisions of the criminal

Court. If any material is available in the

case, which would corroborate or strengthen the

149

decision of the criminal Court, then, there is

no embargo for the Civil Court to place

reliance upon it.”

156. We are in full agreement with the above view.

There is no embargo in referring to or relying on an

admissible evidence, be of a civil court or criminal

court both in civil or criminal proceedings.

157. From the above discussions, we arrive at following

conclusions:-

(i) The pendency of proceedings under Act, 2005

or any order interim or final passed under

D.V. Act under Section 19 regarding right of

residence is not an embargo for initiating

or continuing any civil proceedings, which

relate to the subject matter of order interim or final passed in proceedings under

D.V. Act, 2005.

(ii) The judgment or order of criminal court

granting an interim or final relief under

Section 19 of D.V. Act, 2005 are relevant

150

within the meaning of Section 43 of the Evidence Act and can be referred to and looked

into by the civil court.

(iii) A civil court is to determine the issues in

civil proceedings on the basis of evidence,

which has been led by the parties before the

civil court.

(iv) In the facts of the present case, suit filed

in civil court for mandatory and permanent

injunction was fully maintainable and the

issues raised by the appellant as well as by

the defendant claiming a right under Section

19 were to be addressed and decided on the

basis of evidence, which is led by the parties in the suit.

158. In view of the foregoing discussions, we are of

the considered opinion that High Court has rightly set

aside the decree of the Trial Court and remanded the

matter for fresh adjudication. With the observations as

151

above, the appeal is dismissed. No Costs.

......................J.

 [ASHOK BHUSHAN]

......................J.

 [R. SUBHASH REDDY]

......................J.

 [M.R. SHAH]

NEW DELHI;

OCTOBER 15, 2020.

The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled. 

.On the facts of the present case, the High Court was wholly incorrect in stating that once the challan was presented by the prosecution on 25.03.2019 as an application was filed by the Appellant on 26.03.2019, the Appellant is not entitled to default bail. First and foremost, the High Court has got the dates all wrong. The application that was made for default bail was made on or before 25.02.2019 and not 26.03.2019. The charge sheet was filed on 26.03.2019 and not 25.03.2019. The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). The fact that the Appellant filed 43 yet another application for default bail on 08.04.2019, would not mean that this application would wipe out the effect of the earlier application that had been wrongly decided. We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled. This being the case, we set aside the judgment of the High Court. The Appellant will now be entitled to be released on “default bail” under Section 167(2) of the Code, as amended by Section 43-D of the UAPA. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds, and upon arrest or re-arrest, the petitioner is entitled to petition for the grant of regular bail which application should be considered on its own merit. We also make it clear that this judgement will have no impact on the arrest of the petitioner in any other case.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 667 OF 2020

(@ Special Leave Petition (Crl.) No. 2933 of 2020)

BIKRAMJIT SINGH …APPELLANT

Versus

THE STATE OF PUNJAB …RESPONDENT

J U D G M E N T

R.F. Nariman, J.

1. Leave granted.

2. In an F.I.R dated 18.11.2018, involving Sections 302, 307, 452, 427,

341, 34 of the Indian Penal Code read with Section 25 of the Arms Act,

1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and

Section 13 of the Unlawful Activities (Prevention) Act, 1967, it was

stated as follows:

“I am a resident of above address and doing the business

of furniture at Nehru Complex, Amritsar. I do my religious

services in the Nirankari Bhawan at Rajasansi every

Sunday. Today, i.e, on 18.11.2018, Satsang was going on

at Satsang Bhawan, where about 200 Satsangis were

present. At about 11.30 a.m., I along with my companion

Gagandeep Singh son of Balwinder Singh, resident of

1

Gumtala, was doing the duty of a Security Guard on the

main gate, when two young boys came there on a Pulsar

Motor Cycle without number of Black shade. Out of them,

one had worn Jean and Jacket and was having turban on

his head and he has muffled his face with a cloth of check.

He went inside and the other young boy, who was wearing

Kurta, Pyjama and Jacket and had muffled his face with a

handkerchief, took out a Pistol from the fold of his Pyjama

and made us to stand together near the Bathroom. The

young boy who had gone inside the Satsang Hall threw a

Hand Grenade on the stage with his right hand. An

explosion took place and the above-said young boy took

out a Pistol and ran towards the gate. Both the young men

ran towards Village Adliwal on their Pulsar Motor Cycle.

Due to Grenade explosion, about 22 persons from the

Sangat sustained serious injuries. The other persons

arranged conveyance and carried the injured to IVY

Hospital, Amritsar and Guru Nanak Dev Hospital, Amritsar,

where Sukhdev Kumar son of Kans Raj, resident of Kohali,

now resident of Mirankot, aged about 45 years, Kuldeep

Singh son of Joginder Singh, resident of Bagga and

Sandeep Singh son of Amarjit Singh, resident of Ward No.

7, Rajasansi died in IVY Hospital, Amritsar. The above

young men by throwing a Hand Grenade on the Sangat,

have injured 22 persons seriously, out of which three

persons have died. Deterrent action be taken against the

above-mentioned accused. I have heard my statement. It is

correct.”

3. Pursuant to this F.I.R, the Punjab State Police apprehended the

Appellant, one Bikramjit Singh, aged 26 years, on 22.11.2018, on

which date he was remanded to custody by the learned Sub-Divisional

Magistrate. After 90 days in custody, which expired on 21.02.2019, an

application for default bail was made to the Sub-Divisional Judicial

Magistrate, Ajnala. This application was dismissed on 25.02.2019 on

2

the ground that the learned Sub-Divisional Judicial Magistrate had, by

an order dated 13.02.2019, already extended time from 90 days to

180 days under Section 167 of the Code of Criminal Procedure, 1973

(hereinafter referred to as “the Code”) as amended by the Unlawful

Activities (Prevention) Act, 1967 (hereinafter referred to as “UAPA”) –

See Section 43-D(2). However, this Order was challenged by way of a

revision petition by the Appellant and his co-accused, which revision

succeeded by an order dated 25.03.2019, by which the learned

Additional Sessions Judge being the Special Court set up under the

National Investigation Agency Act, 2008 (hereinafter referred to as the

“NIA Act”) held as follows:

“6. After hearing the Ld Counsel for revision petitioner and

Ld PP for State, I am of the view that since Ld PP has not

controverted the proposition of law, wherein it is provided

that Ilaqa Magistrate has no jurisdiction to entertain any

application for extension the period of investigation or

granting bail u/s 167 (2) Cr.P.C in default of presentation of

Challan u/s 45 D (2) Unlawful Activities (Prevention Act

1967) and in view of the Notification supra passed by

Government of Punjab, to deal with the cases of unlawful

activities act, court of session or court of Additional Session

Judge, in every district has been designated to try the said

cases, so the application for seeking extension of time for

filing challan was not maintainable before Ilaqa magistrate.

7. Therefore, in view of the said notification as well as the

case laws referred by the Ld Counsel for revision petitioner,

only this court being special designated court was

competent to pass an order on any application moved u/s

45(D) (2) Unlawful Activities (Prevention) Act 1967. It

means, Ilaqa Magistrate was not competent to pass any

order on any such application. In case the same has been

3

filed and passed i.e. without its jurisdiction. So because of

the said reason order passed by Ilaqa magistrate is not

sustainable in the eyes of law and the same is liable to be

set aside by way of acceptance of this revision petition.

Accordingly this revision is allowed and order of Ilaqa

magistrate dated 13.02.2019 is set aside. Trial court record

along with copy of this order be sent back to the Trial Court

and file of this court be consigned to record room.”

4. One day later, on 26.03.2019, a charge sheet was filed before the

learned Special Judge after police investigation, in which Sections

302, 307, 452, 427, 341, 34 of the Indian Penal Code read with

Section 25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive

Substances Act, 1908 and Sections 13, 16, 18, 18-B and 20 of the

Unlawful Activities (Prevention) Act, 1967 were invoked for offences

that were committed pursuant to investigation of the FIR lodged on

18.11.2018. Meanwhile, a revision petition that was filed against the

order dated 25.02.2019, was dismissed by the Special Judge on

11.04.2019 who, after noticing the order dated 25.03.2019 allowing

the revision petition against the order dated 13.02.2019 of the Judicial

Magistrate, yet refused to grant default bail as follows:

“10. No doubt, vide gazette notification issued by

Government of Punjab on 10.06.2014, the Session Judge

and first Additional Session Judge at each District Head

Quarters in the State are designated as special court for

the trial of offences of unlawful activities act. However, as

per the local arrangement, all the cases pertaining to

unlawful activities act are dealt in this court. So, being a

special court, this court is competent to directly receive the

challan or police report under section 173 Cr PC. Since the

challan has already been presented and in the judgement

4

titled as Abdul Aziz PV and Other vs National Investigation

Agency 2015

(1) RCR (Criminal) 239, it has been held that merely

because certain facets of the matter called for further

investigation, it does not deem such report anything other

than a final report, revisionist are not entitled to statutory

bail under section 167 (2) Cr PC.

xxx xxx xxx

12. Since Challan has already been presented, so revision

petitioner have lost their right for bail by way of default

under section 167 (2) Cr PC. Therefore there is no reason

to interfere in the order of Ilaqa Magistrate passed under

section 167 (2) Cr PC so this revision petition fails and is

dismissed. Consign file to the record room.”

5. On the same day i.e. 11.04.2019, an application for default bail dated

08.04.2019 was also dismissed. By the impugned judgment dated

30.10.2019, the High Court, after setting out Section 167 of the Code

of Criminal Procedure, 1973 and some of the provisions of the UAPA

and NIA Act, then arrived at the following conclusion:

“A joint interpretation of Section 167 (2) Cr.P.C. read with

Section 43 (d) UAP Act, Section 6, 13 & 22 of NIA Act

would show that in case the investigation is being carried

out by the State police, the Magistrate will have power

under Section 167 (2) Cr.P.C. read with Section 43 (a) of

UAP Act to extend the period of investigation upto 180

days and then, commit the case to the Court of Sessions

as per provisions of Section 209 Cr.P.C., whereas in case

the investigation is conducted by the agency under the NIA

Act, the power shall be exercised by the Special Court and

challan will be presented by the agency before the Special

Court.

xxx xxx xxx

It is not case of the petitioner that the investigation was

conducted by the agency under Section 6 of the NIA Act

and till committal of the case to the Court of Sessions, as

5

per Section 22 (3) of NIA Act, it cannot be said that the

Magistrate has no power and therefore, the order dated

25.03.2019 suffers from illegal infirmity.

The arguments raised by learned senior counsel for the

petitioner that the petitioner is entitled to default bail under

Section 167 (2) Cr.P.C., in view of judgment of the Hon'ble

Supreme Court in Sanjay Dutt's case (supra), is not

available, once the challan was presented by the

prosecution on 25.03.2019, as the application was filed by

the petitioner on the next day i.e. 26.03.2019

The Judge, Exclusive Court has recorded a well reasoned

finding that mere fact that sanction has not been granted

so far, is no ground to grant concession of bail, as it is

rightly held that besides the offence committed under the

UAP Act, the accused is also facing the trial for committing

the offence under Sections 302, 307, 452, 341, 427, 34

IPC read with Section 25/54/59 of Arms Act and Sections 3,

4, 5, & 6 of Explosive Act, for which no sanction is required

to prosecute the petitioner.

For the reasons recorded above and in view of judgment of

the Hon’ble Supreme Court in Hitendra Vishnu Thakur vs.

State of Maharashtra, 1994 (3) RCR (Crl.) 156, finding no

merit in the present petition, the same is dismissed.”

6. Shri Colin Gonsalves, learned Senior Advocate appearing on behalf of

the Appellant, referred to both the enactments as aforesaid in copious

detail and stressed the fact that once the Special Court had been set

up as an exclusive Court to try all offences under the UAPA, such

offences being scheduled offences relatable to the NIA Act, it was the

Special Court alone which had exclusive jurisdiction to extend the

period of 90 days to 180 days under Section 43-D (2)(b) of the UAPA.

This being the case, on an application having been made prior to the

filing of the charge sheet for default bail, his contention was that the

6

indefeasible right to default bail arose immediately after 21.02.2019,

when the 90 day period was over. An order that is passed without

jurisdiction by the learned Sub-Divisional Judicial Magistrate dated

13.02.2019, had been corrected by the learned Additional Sessions

Judge/Special Court vide the order dated 25.03.2019, as a result of

which his right to default bail sprung into action before filing of the

charge sheet dated 26.03.2019. He, therefore, assailed the High

Court judgment on both counts – Firstly, that the exclusive jurisdiction

to extend time vested only in the Special Court and not in the Ilaqa

Magistrate, despite the fact that it was the State Police Agency that

investigated these offences. Secondly, he also argued, relying upon a

number of judgments, that the Appellant’s right to default bail was not

extinguished by the filing of the charge sheet dated 26.03.2019, as

was incorrectly held by the High Court.

7. Smt. Jaspreet Gogia, learned Advocate who appeared on behalf of the

State of Punjab, also took us through the provisions of both the

aforesaid enactments. She stressed in particular Section 10 of the NIA

Act, stating that nothing in the said Act would affect the powers of the

State Government to investigate and prosecute any scheduled

offence. She also stressed the fact that the entire investigation was

done only by the State Police and not by the National Investigation

Agency. This being the case, she argued that the Ilaqa Magistrate had

7

jurisdiction to extend time, and having so extended time on

13.02.2019, any application for default bail after the 90 day period was

over i.e. after 21.02.2019 had necessarily to be dismissed. She also

argued that the first application for default bail which was filed on or

before 25.03.2019, had spent its force, having been dismissed, and

that the application dated 08.04.2019 filed for default bail was clearly

after 26.03.2019, when the charge sheet was filed and, therefore, was

correctly dismissed by the order of the learned Special Judge dated

11.04.2019.

8. Having heard learned counsel for the parties, it is important at this

stage to set out all the relevant provisions of the three enactments that

we are directly concerned with – the Code, UAPA and NIA Act.

9. It is important to note that the expression “Court” is not defined by the

Code. On the other hand, Section 6 of the Code refers to classes of

Criminal Courts as follows:

“6. Classes of Criminal Courts.

Besides the High Courts and the Courts constituted under

any law, other than this Code, there shall be, in every

State, the following classes of Criminal Courts, namely:

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any

metropolitan area, Metropolitan Magistrates;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.”

8

The Court of Sessions is then referred to as a Court that is established

by the State Government under Section 9(1) of the Code for every

Sessions Division.

10.Section 26 of the Code refers to Courts by which offences are triable.

We are concerned directly with Section 26(b) which states as follows:

“26. Courts by which offences are triable.

Subject to the other provisions of this Code,

xxx xxx xxx

(b) any offence under any other law shall, when any Court

is mentioned in this behalf in such law, be tried by such

Court and when no Court is so mentioned, may be tried by

—

(i) the High Court, or

(ii) any other Court by which such offence is shown in the

First Schedule to be triable.”

11.Section 167 of the Code makes it clear that whenever a person is

arrested and detained in custody, the time for investigation relating to

an offence punishable with death, imprisonment for life or

imprisonment for a term of not less than 10 years, cannot ordinarily be

beyond the period of 15 days, but is extendable, on the Magistrate

being satisfied that adequate grounds exist for so doing, to a

maximum period of 90 days – See first proviso (a)(i) to Section 167(2)

of the Code. The said proviso goes on to state that the accused

person shall be released on bail if he is prepared to and does furnish

bail on expiry of the maximum period of 90 days, and every person so

9

released on bail be deemed to be so released under the provisions of

Chapter XXXIII for the purposes of that Chapter.

12.The First Schedule to the Code then sets out at the fag end, in Part II

thereof, classification of offences against other laws as follows:

THE FIRST SCHEDULE

CLASSIFICATION OF OFFENCES

II.—CLASSIFICATION OF OFFENCES AGAINST OTHER

LAWS

Offence Cognizable

or noncognizable

Bailable or

nonbailable

By what

court

triable

If punishable with

death,

imprisonment for

life, or

imprisonment for

more than 7 years

Cognizable Nonbailable

Court of

Session

If punishable with

imprisonment for 3

years and upwards

and not more than

7 years

Ditto Ditto Magistrate

of first

class

If punishable with

imprisonment for

less than 3 years or

with fine only

Noncognizable

Bailable Any

Magistrate

13.The UAPA deals with “unlawful activity” and “unlawful association”, and

interdicts both unlawful activity and unlawful association as defined

under Sections 2(o) and 2(p). It further defines what are terrorist acts,

terrorist gangs and terrorists organisations under Section 2(k), 2(l) and

2(m) and proscribes each of these in offences which are than fleshed

10

out under its provisions. What is important from our point of view in this

case is the definition of “Court” in Section 2(1)(d) of UAPA which is as

follows:

“2. Definitions.-(1) In this Act, unless the context otherwise

requires,-

xxx xxx xxx

(d) “court” means a criminal court having jurisdiction, under

the Code, to try offences under this Act and includes a

Special Court constituted under section 11 or under section

21 of the National Investigation Agency Act, 2008”

Equally important is the provision contained in Section 43-D(2) of

UAPA, which is set out as follows:

“43-D. Modified application of certain provisions of the

Code.

xxx xxx xxx

(2) Section 167 of the Code shall apply in relation to a case

involving an offence punishable under this Act subject to

the modification that in sub-section (2),-

(a) the references to “fifteen days”, “ninety days” and

“sixty days”, wherever they occur, shall be construed as

references to “thirty days”, “ninety days” and “ninety

days” respectively; and

(b) after the proviso, the following provisos shall be

inserted, namely:—

“Provided further that if it is not possible to complete

the investigation within the said period of ninety days,

the Court may if it is satisfied with the report of the

Public Prosecutor indicating the progress of the

investigation and the specific reasons for the

detention of the accused beyond the said period of

11

ninety days, extend the said period up to one

hundred and eighty days:

Provided also that if the police officer making the

investigation under this Act, requests, for the

purposes of investigation, for police custody from

judicial custody of any person in judicial custody, he

shall file an affidavit stating the reasons for doing so

and shall also explain the delay, if any, for requesting

such police custody.””

14.A cursory reading of these provisions would show that the offences

under the UAPA under Sections 16, 17, 18, 18-A, 18-B, 19, 20, 22-B,

22-C and 23, being offences which contain maximum sentences of

over 7 years, would be exclusively triable by a Court of Sessions when

read with Part II of the First Schedule to the Code. It is only after the

NIA Act was enacted that the definition of “Court” was extended to

include Special Courts that were set up under Section 11 or Section

22 of the NIA Act.

15.When we come to the NIA Act, the Preamble of the said Act indicates

the thrust of the provisions of that Act as follows:

“An Act to constitute an investigation agency at the national

level to investigate and prosecute offences affecting the

sovereignty, security and integrity of India, security of State,

friendly relations with foreign States and offences under

Acts enacted to implement international treaties,

agreements, conventions and resolutions of the United

Nations, its agencies and other international organisations

and for matters connected therewith or incidental thereto.”

Under Section 2(g) “Scheduled Offence” is defined as follows:

“2. Definitions.- (1) In this Act, unless the context

otherwise requires,-

xxx xxx xxx

12

(g) “Scheduled Offence” means an offence specified in the

Schedule””

Section 2(h) defines “Special Court” as follows:

“2. Definitions.- (1) In this Act, unless the context

otherwise requires,-

xxx xxx xxx

(h) “Special Court” means a Special Court constituted

under section 11 or, as the case may be, under section 22”

16.Section 3 constitutes a National Investigation Agency which is a

special agency set up for prosecution of offences under the Acts

specified in the Schedule by the Central Government. It may be noted

that the UAPA is Item 2 of the said Schedule. Section 10, upon which

strong reliance is placed by the State, is as follows:

“10. Power of State Government to investigate

Scheduled Offences.—Save as otherwise provided in this

Act, nothing contained in this Act shall affect the powers of

the State Government to investigate and prosecute any

Scheduled Offence or other offences under any law for the

time being in force”

Sections 11 and 22 which speak of the power of the Central

Government and the State Government respectively, to designate

Courts of Sessions as Special Courts, are as follows:

“11. Power of Central Government to constitute Special

Courts.—

(1) The Central Government shall, by notification in the

Official Gazette, for the trial of Scheduled Offences,

constitute one or more Special Courts for such area or

areas, or for such case or class or group of cases, as may

be specified in the notification.

13

(2) Where any question arises as to the jurisdiction of any

Special Court, it shall be referred to the Central

Government whose decision in the matter shall be final.

(3) A Special Court shall be presided over by a judge to be

appointed by the Central Government on the

recommendation of the Chief Justice of the High Court.

(4) The Agency may make an application to the Chief

Justice of the High Court for appointment of a Judge to

preside over the Special Court.

(5) On receipt of an application under sub-section (4), the

Chief Justice shall, as soon as possible and not later than

seven days, recommend the name of a judge for being

appointed to preside over the Special Court.

(6) The Central Government may, if required, appoint an

additional judge or additional judges to the Special Court,

on the recommendation of the Chief Justice of the High

Court.

(7) A person shall not be qualified for appointment as a

judge or an additional judge of a Special Court unless he

is, immediately before such appointment, a Sessions

Judge or an Additional Sessions Judge in any State.

(8) For the removal of doubts, it is hereby provided that the

attainment, by a person appointed as a judge or an

additional judge of a Special Court, of the age of

superannuation under the rules applicable to him in the

service to which he belongs shall not affect his continuance

as such judge or additional judge and the Central

Government may by order direct that he shall continue as

judge until a specified date or until completion of the trial of

the case or cases before him as may be specified in that

order.

(9) Where any additional judge or additional judges is or

are appointed in a Special Court, the judge of the Special

Court may, from time to time, by general or special order, in

writing, provide for the distribution of business of the

Special Court among all judges including himself and the

additional judge or additional judges and also for the

disposal of urgent business in the event of his absence or

the absence of any additional judge.

14

22. Power of State Government to constitute Special

Courts.—

(1) The State Government may constitute one or more

Special Courts for the trial of offences under any or all the

enactments specified in the Schedule.

(2) The provisions of this Chapter shall apply to the Special

Courts constituted by the State Government under subsection (1) and shall have effect subject to the following

modifications, namely—

(i) references to “Central Government” in sections 11 and

15 shall be construed as references to State Government;

(ii) reference to “Agency” in sub-section (1) of section 13

shall be construed as a reference to the “investigation

agency of the State Government”;

(iii) reference to “Attorney-General for India” in sub-section

(3) of section 13 shall be construed as reference to

“Advocate-General of the State”.

(3) The jurisdiction conferred by this Act on a Special Court

shall, until a Special Court is constituted by the State

Government under sub-section (1) in the case of any

offence punishable under this Act, notwithstanding anything

contained in the Code, be exercised by the Court of

Session of the division in which such offence has been

committed and it shall have all the powers and follow the

procedure provided under this Chapter.

(4) On and from the date when the Special Court is

constituted by the State Government the trial of any

offence investigated by the State Government under the

provisions of this Act, which would have been required to

be held before the Special Court, shall stand transferred to

that Court on the date on which it is constituted.”

Section 13 speaks of the jurisdiction of the Special Courts as follows:

“13. Jurisdiction of Special Courts.—

(1) Notwithstanding anything contained in the Code, every

Scheduled Offence investigated by the Agency shall be

tried only by the Special Court within whose local

jurisdiction it was committed.

15

(2) If, having regard to the exigencies of the situation

prevailing in a State if,—

(a) it is not possible to have a fair, impartial or speedy trial;

or

(b) it is not feasible to have the trial without occasioning the

breach of peace or grave risk to the safety of the accused,

the witnesses, the Public Prosecutor or a judge of the

Special Court or any of them; or

(c) it is not otherwise in the interests of justice, the

Supreme Court may transfer any case pending before a

Special Court to any other Special Court within that State

or in any other State and the High Court may transfer any

case pending before a Special Court situated in that State

to any other Special Court within the State.

(3) The Supreme Court or the High Court, as the case may

be, may act under this section either on the application of

the Central Government or a party interested and any such

application shall be made by motion, which shall, except

when the applicant is the Attorney-General for India, be

supported by an affidavit or affirmation.”

Section 14 clarifies that Special Courts may also try offences other

than the scheduled offences as follows:

“14. Powers of Special Courts with respect to other

offences.—

(1) When trying any offence, a Special Court may also try

any other offence with which the accused may, under the

Code be charged, at the same trial if the offence is

connected with such other offence.

(2) If, in the course of any trial under this Act of any

offence, it is found that the accused person has committed

any other offence under this Act or under any other law, the

Special Court may convict such person of such other

offence and pass any sentence or award punishment

authorised by this Act or, as the case may be, under such

other law.”

16

Section 16 is important and sets out the procedure and powers of

Special Courts as follows:

“16. Procedure and powers of Special Courts.—

(1) A Special Court may take cognizance of any offence,

without the accused being committed to it for trial, upon

receiving a complaint of facts that constitute such offence

or upon a police report of such facts.

(2) Where an offence triable by a Special Court is

punishable with imprisonment for a term not exceeding

three years or with fine or with both, the Special Court may,

notwithstanding anything contained in sub-section (1) of

section 260 or section 262 of the Code, try the offence in a

summary way in accordance with the procedure prescribed

in the Code and the provisions of sections 263 to 265 of

the Code shall, so far as may be, apply to such trial:

Provided that when, in the course of a summary trial under

this sub-section, it appears to the Special Court that the

nature of the case is such that it is not desirable to try it in a

summary way, the Special Court shall recall any witnesses

who may have been examined and proceed to re-hear the

case in the manner provided by the provisions of the Code

for the trial of such offence and the said provisions shall

apply to, and in relation to, a Special Court as they apply to

and in relation to a Magistrate:

Provided further that in the case of any conviction in a

summary trial under this section, it shall be lawful for a

Special Court to pass a sentence of imprisonment for a

term not exceeding one year and with fine which may

extend to five lakh rupees.

(3) Subject to the other provisions of this Act, a Special

Court shall, for the purpose of trial of any offence, have all

the powers of a Court of Session and shall try such offence

as if it were a Court of Session so far as may be in

accordance with the procedure prescribed in the Code for

the trial before a Court of Session.

(4) Subject to the other provisions of this Act, every case

transferred to a Special Court under sub-section (2) of

17

section 13 shall be dealt with as if such case had been

transferred under section 406 of the Code to such Special

Court.

(5) Notwithstanding anything contained in the Code, but

subject to the provisions of section 299 of the Code, a

Special Court may, if it thinks fit and for reasons to be

recorded by it, proceed with the trial in the absence of the

accused or his pleader and record the evidence of any

witness, subject to the right of the accused to recall the

witness for cross-examination.”

17.The Scheme of the NIA Act is that offences under the enactments

contained to the Schedule to the Act are now to be tried exclusively by

Special Courts set up under that Act. These may be set up by the

Central Government under Section 11 or by the State Government

under Section 22 of the Act. On the facts of the present case, we are

concerned with Section 22 as Special Courts have been set up within

the State of Punjab by a notification dated 10.06.2014, which reads as

follows:

“PART III

GOVERNMENT OF PUNJAB

DEPARTMENT OF HOME AFFAIRS AND JUSTICE

(JUDICIAL-1 BRANCH)

NOTIFICATION

The 10th June, 2014

No. S.O. 141/C.A.34/2008/S.22/2014.- In exercise of the

powers conferred under sub-section(1) of section 22 of the

National Investigation Agency Act, 2008 (Central Act No. 34

of 2008), and all other powers enabling him in this behalf,

the Governor of Punjab, with the concurrence of Hon'ble

Chief Justice of the High Court of Punjab and Haryana,

18

Chandigarh, is pleased to constitute the courts of Sessions

Judge and the first Additional Sessions Judge (for the area

falling within their respective jurisdiction), at each district

headquarter in the State, to be the Special Courts, for the

trial of offences as specified in the Schedule appended to

the aforesaid Act, which are investigated by the State

police.”

18.It will be seen that the aforesaid notification has been issued under

Section 22(1) of the NIA Act. What is important to note is that under

Section 22(2)(ii), reference to the Central Agency in Section 13(1) is to

be construed as a reference to the investigation agency of the State

Government – namely, the State police in this case. Thereafter, what is

important to note is that notwithstanding anything contained in the

Code, the jurisdiction conferred on a Special Court shall, until a

Special Court is designated by the State Government, be exercised

only by the Court of Sessions of the Division in which such offence has

been committed vide sub-section (3) of Section 22; and by sub-section

(4) of Section 22, on and from the date on which the Special Court is

designated by the State Government, the trial of any offence

investigated by the State Government under the provisions of the NIA

Act shall stand transferred to that Court on and from the date on which

it is designated.

19.Section 13(1) of the NIA Act, which again begins with a non-obstante

clause which is notwithstanding anything contained in the Code, read

with Section 22(2)(ii), states that every scheduled offence that is

19

investigated by the investigation agency of the State Government is to

be tried exclusively by the Special Court within whose local jurisdiction

it was committed.

20.When these provisions are read along with Section 2(1)(d) and the

provisos in 43-D(2) of the UAPA, the Scheme of the two Acts, which

are to be read together, becomes crystal clear. Under the first proviso

in Section 43-D(2)(b), the 90 day period indicated by the first proviso

to Section 167(2) of the Code can be extended up to a maximum

period of 180 days if “the Court” is satisfied with the report of the public

prosecutor indicating progress of investigation and specific reasons for

detention of the accused beyond the period of 90 days. “The Court”,

when read with the extended definition contained in Section 2(1)(d) of

the UAPA, now speaks of the Special Court constituted under Section

22 of the NIA Act. What becomes clear, therefore, from a reading of

these provisions is that for all offences under the UAPA, the Special

Court alone has exclusive jurisdiction to try such offences. This

becomes even clearer on a reading of Section 16 of the NIA Act which

makes it clear that the Special Court may take cognizance of an

offence without the accused being committed to it for trial upon receipt

of a complaint of facts or upon a police report of such facts. What is

equally clear from a reading of Section 16(2) of the NIA Act is that

even though offences may be punishable with imprisonment for a term

20

not exceeding 3 years, the Special Court alone is to try such offence –

albeit in a summary way if it thinks it fit to do so. On a conspectus of

the abovementioned provisions, Section 13 read with Section 22(2)(ii)

of the NIA Act, in particular, the argument of the learned counsel

appearing on behalf of the State of Punjab based on Section 10 of the

said Act has no legs to stand on since the Special Court has exclusive

jurisdiction over every Scheduled Offence investigated by the

investigating agency of the State.

21.Before the NIA Act was enacted, offences under the UAPA were of two

kinds – those with a maximum imprisonment of over 7 years, and

those with a maximum imprisonment of 7 years and under. Under the

Code as applicable to offences against other laws, offences having a

maximum sentence of 7 years and under are triable by the

Magistrate’s Courts, whereas offences having a maximum sentence of

above 7 years are triable by Courts of Sessions. This Scheme has

been completely done away with by the 2008 Act as all scheduled

offences i.e. all offences under the UAPA, whether investigated by the

National Investigation Agency or by the investigating agencies of the

State Government, are to be tried exclusively by Special Courts set up

under that Act. In the absence of any designated Court by notification

issued by either the Central Government or the State Government, the

fall back is upon the Court of Sessions alone. Thus, under the

21

aforesaid Scheme what becomes clear is that so far as all offences

under the UAPA are concerned, the Magistrate’s jurisdiction to extend

time under the first proviso in Section 43-D(2)(b) is non-existent, “the

Court” being either a Sessions Court, in the absence of a notification

specifying a Special Court, or the Special Court itself. The impugned

judgment in arriving at the contrary conclusion is incorrect as it has

missed Section 22(2) read with Section 13 of the NIA Act. Also, the

impugned judgement has missed Section 16(1) of the NIA Act which

states that a Special Court may take cognizance of any offence

without the accused being committed to it for trial inter alia upon a

police report of such facts.

22.The second vexed question which arises on the facts of this case is

the question of grant of default bail. It has already been seen that once

the maximum period for investigation of an offence is over, under the

first proviso (a) to Section 167(2), the accused shall be released on

bail, this being an indefeasible right granted by the Code. The extent of

this indefeasible right has been the subject matter of a number of

judgments. A beginning may be made with the judgment in Hitendra

Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, which

spoke of “default bail” under the provisions of the Terrorist and

Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as

“TADA”) read with Section 167 of the Code as follows:

22

“19. Section 20(4) of TADA makes Section 167 of CrPC

applicable in relation to case involving an offence

punishable under TADA, subject to the modifications

specified therein…while clause (b) provided that reference

in sub-section (2) of Section 167 to ‘15 days’, ‘90 days’ and

‘60 days’ wherever they occur shall be construed as

reference to ‘60 days’, ‘one year’ and ‘one year’

respectively. This section was amended in 1993 by the

Amendment Act 43 of 1993 with effect from 22-5-1993 and

the period of ‘one year’ and ‘one year’ in clause (b) was

reduced to ‘180 days’ and ‘180 days’ respectively, by

modification of sub-section (2) of Section 167. After clause

(b) of sub-section (4) of Section 20 of TADA, another

clause (bb) was inserted which reads:

“(bb) in sub-section (2), after the proviso, the following

proviso shall be inserted, namely:—

‘Provided further that, if it is not possible to complete the

investigation within the said period of one hundred and

eighty days, the Designated Court shall extend the said

period up to one year, on the report of the Public

Prosecutor indicating the progress of the investigation and

the specific reasons for the detention of the accused

beyond the said period of one hundred and eighty days;

and’ ”

20. …Sub-section (2) of Section 167 of the Code lays down

that the Magistrate to whom the accused is forwarded may

authorise his detention in such custody, as he may think fit,

for a term specified in that section. The proviso to subsection (2) fixes the outer limit within which the

investigation must be completed and in case the same is

not completed within the said prescribed period, the

accused would acquire a right to seek to be released on

bail and if he is prepared to and does furnish bail, the

Magistrate shall release him on bail and such release shall

be deemed to be grant of bail under Chapter XXXIII of the

Code of Criminal Procedure…Section 167 read with

Section 20(4) of TADA, thus, strictly speaking is not a

provision for “grant of bail” but deals with the maximum

period during which a person accused of an offence may

be kept in custody and detention to enable the investigating

agency to complete the investigation and file the charge23

sheet, if necessary, in the court. The proviso to Section

167(2) of the Code read with Section 20(4)(b) of TADA,

therefore, creates an indefeasible right in an accused

person on account of the ‘default’ by the investigating

agency in the completion of the investigation within the

maximum period prescribed or extended, as the case may

be, to seek an order for his release on bail. It is for this

reason that an order for release on bail under proviso (a) of

Section 167(2) of the Code read with Section 20(4) of

TADA is generally termed as an “order-on-default” as it is

granted on account of the default of the prosecution to

complete the investigation and file the challan within the

prescribed period. As a consequence of the amendment,

an accused after the expiry of 180 days from the date of his

arrest becomes entitled to bail irrespective of the nature of

the offence with which he is charged where the prosecution

fails to put up challan against him on completion of the

investigation. With the amendment of clause (b) of subsection (4) of Section 20 read with the proviso to subsection (2) of Section 167 of CrPC an indefeasible right to

be enlarged on bail accrues in favour of the accused if the

police fails to complete the investigation and put up a

challan against him in accordance with law under Section

173 CrPC. An obligation, in such a case, is cast upon the

court, when after the expiry of the maximum period during

which an accused could be kept in custody, to decline the

police request for further remand except in cases governed

by clause (bb) of Section 20(4). There is yet another

obligation also which is cast on the court and that is to

inform the accused of his right of being released on bail

and enable him to make an application in that behalf.

(Hussainara Khatoon case [Hussainara Khatoon v. Home

Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40

: AIR 1979 SC 1369] ). This legal position has been very

ably stated in Aslam Babalal Desai v. State of

Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri) 870 : AIR

1993 SC 1] where speaking for the majority, Ahmadi, J.

referred with approval to the law laid down in Rajnikant

Jivanlal Patel v. Intelligence Officer, Narcotic Control

Bureau, New Delhi [(1989) 3 SCC 532 : 1989 SCC (Cri)

612 : AIR 1990 SC 71] wherein it was held that : (SCC p.

288, para 9)

24

“The right to bail under Section 167(2) proviso (a) thereto

is absolute. It is a legislative command and not court's

discretion. If the investigating agency fails to file chargesheet before the expiry of 90/60 days, as the case may

be, the accused in custody should be released on bail.

But at that stage, merits of the case are not to be

examined. Not at all. In fact, the Magistrate has no power

to remand a person beyond the stipulated period of

90/60 days. He must pass an order of bail and

communicate the same to the accused to furnish the

requisite bail bonds.”

21. Thus, we find that once the period for filing the chargesheet has expired and either no extension under clause

(bb) has been granted by the Designated Court or the

period of extension has also expired, the accused person

would be entitled to move an application for being admitted

to bail under sub-section (4) of Section 20 TADA read with

Section 167 of the Code and the Designated

Court shall release him on bail, if the accused seeks to be

so released and furnishes the requisite bail. We are not

impressed with the argument of the learned counsel for the

appellant that on the expiry of the period during which

investigation is required to be completed under Section

20(4) TADA read with Section 167 of the Code, the court

must release the accused on bail on its own motion even

without any application from an accused person on his

offering to furnish bail. In our opinion an accused is

required to make an application if he wishes to be released

on bail on account of the ‘default’ of the

investigating/prosecuting agency and once such an

application is made, the court should issue a notice to the

public prosecutor who may either show that the

prosecution has obtained the order for extension for

completion of investigation from the court under clause (bb)

or that the challan has been filed in the Designated Court

before the expiry of the prescribed period or even that the

prescribed period has actually not expired and thus resist

the grant of bail on the alleged ground of ‘default’. The

issuance of notice would avoid the possibility of an

accused obtaining an order of bail under the ‘default’

clause by either deliberately or inadvertently concealing

certain facts and would avoid multiplicity of proceedings. It

25

would, therefore, serve the ends of justice if both sides are

heard on a petition for grant of bail on account of the

prosecution's ‘default’… No other condition like the gravity

of the case, seriousness of the offence or character of the

offender etc. can weigh with the court at that stage to

refuse the grant of bail to an accused under sub-section (4)

of Section 20 TADA on account of the ‘default’ of the

prosecution.”

23.In the Constitution Bench judgment in Sanjay Dutt v. State through

CBI (1994) 5 SCC 410, one of the questions to be decided by the

Constitution Bench was the correct interpretation of Section 20(4)(bb)

of TADA indicating the nature of right of an accused to be released on

default bail. The enigmatic expression “if already not availed of” is

contained in paragraphs 48 of the aforesaid judgment as follows:

“48. We have no doubt that the common stance before us

of the nature of indefeasible right of the accused to be

released on bail by virtue of Section 20(4)(bb) is based on

a correct reading of the principle indicated in that decision.

The indefeasible right accruing to the accused in such a

situation is enforceable only prior to the filing of the challan

and it does not survive or remain enforceable on the

challan being filed, if already not availed of. Once the

challan has been filed, the question of grant of bail has to

be considered and decided only with reference to the

merits of the case under the provisions relating to grant of

bail to an accused after the filing of the challan. The

custody of the accused after the challan has been filed is

not governed by Section 167 but different provisions of the

Code of Criminal Procedure. If that right had accrued to the

accused but it remained unenforced till the filing of the

challan, then there is no question of its enforcement

thereafter since it is extinguished the moment challan is

filed because Section 167 CrPC ceases to apply. The

Division Bench also indicated that if there be such an

application of the accused for release on bail and also a

26

prayer for extension of time to complete the investigation

according to the proviso in Section 20(4)(bb), both of them

should be considered together. It is obvious that no bail can

be given even in such a case unless the prayer for

extension of the period is rejected. In short, the grant of bail

in such a situation is also subject to refusal of the prayer for

extension of time, if such a prayer is made. If the accused

applies for bail under this provision on expiry of the period

of 180 days or the extended period, as the case may be,

then he has to be released on bail forthwith. The accused,

so released on bail may be arrested and committed to

custody according to the provisions of the Code of Criminal

Procedure. It is settled by Constitution Bench decisions

that a petition seeking the writ of habeas corpus on the

ground of absence of a valid order of remand or detention

of the accused, has to be dismissed, if on the date of return

of the rule, the custody or detention is on the basis of a

valid order. (See Naranjan Singh Nathawan v. State of

Punjab [1952 SCR 395 : AIR 1952 SC 106 : 1952 Cri LJ

656] ; Ram Narayan Singh v. State of Delhi [1953 SCR 652

: AIR 1953 SC 277 : 1953 Cri LJ 1113] and A.K.

Gopalan v. Government of India [(1966) 2 SCR 427 : AIR

1966 SC 816 : 1966 Cri LJ 602] .)

xxx xxx xxx

53. As a result of the above discussion, our answers to the

three questions of law referred for our decision are as

under:

xxx xxx xxx

(2)(b) The “indefeasible right” of the accused to be released

on bail in accordance with Section 20(4)(bb) of the TADA

Act read with Section 167(2) of the Code of Criminal

Procedure in default of completion of the investigation and

filing of the challan within the time allowed, as held

in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC

(Cri) 1087 : JT (1994) 4 SC 255] is a right which enures to,

and is enforceable by the accused only from the time of

default till the filing of the challan and it does not survive or

remain enforceable on the challan being filed. If the

accused applies for bail under this provision on expiry of

the period of 180 days or the extended period, as the case

27

may be, then he has to be released on bail forthwith. The

accused, so released on bail may be arrested and

committed to custody according to the provisions of the

Code of Criminal Procedure. The right of the accused to be

released on bail after filing of the challan, notwithstanding

the default in filing it within the time allowed, is governed

from the time of filing of the challan only by the provisions

relating to the grant of bail applicable at that stage.”

[Emphasis Supplied]

24.The question as to whether default bail can be granted once a charge

sheet is filed was authoritatively dealt with in a decision of a ThreeJudge Bench of this Court in Uday Mohanlal Acharya v. State of

Maharashtra (2001) 5 SCC 453. The majority judgment of G.B.

Pattanaik, J. reviewed the decisions of this Court and in particular the

enigmatic expression “if already not availed of” in Sanjay Dutt (supra).

The Court then held:

“13.…The crucial question that arises for consideration,

therefore, is what is the true meaning of the expression “if

already not availed of”? Does it mean that an accused files

an application for bail and offers his willingness for being

released on bail or does it mean that a bail order must be

passed, the accused must furnish the bail and get him

released on bail? In our considered opinion it would be

more in consonance with the legislative mandate to hold

that an accused must be held to have availed of his

indefeasible right, the moment he files an application for

being released on bail and offers to abide by the terms and

conditions of bail. To interpret the expression “availed of” to

mean actually being released on bail after furnishing the

necessary bail required would cause great injustice to the

accused and would defeat the very purpose of the proviso

to Section 167(2) of the Criminal Procedure Code and

further would make an illegal custody to be legal, inasmuch

as after the expiry of the stipulated period the Magistrate

28

had no further jurisdiction to remand and such custody of

the accused is without any valid order of remand. That

apart, when an accused files an application for bail

indicating his right to be released as no challan had been

filed within the specified period, there is no discretion left in

the Magistrate and the only thing he is required to find out

is whether the specified period under the statute has

elapsed or not, and whether a challan has been filed or not.

If the expression “availed of” is interpreted to mean that the

accused must factually be released on bail, then in a given

case where the Magistrate illegally refuses to pass an

order notwithstanding the maximum period stipulated in

Section 167 had expired, and yet no challan had been filed

then the accused could only move to the higher forum and

while the matter remains pending in the higher forum for

consideration, if the prosecution files a charge-sheet then

also the so-called right accruing to the accused because of

inaction on the part of the investigating agency would get

frustrated. Since the legislature has given its mandate it

would be the bounden duty of the court to enforce the

same and it would not be in the interest of justice to negate

the same by interpreting the expression “if not availed of” in

a manner which is capable of being abused by the

prosecution. A two-Judge Bench decision of this Court

in State of M.P. v. Rustam [1995 Supp (3) SCC 221 : 1995

SCC (Cri) 830] setting aside the order of grant of bail by

the High Court on a conclusion that on the date of the order

the prosecution had already submitted a police report and,

therefore, the right stood extinguished, in our considered

opinion, does not express the correct position in law of the

expression “if already not availed of”, used by the

Constitution Bench in Sanjay Dutt [(1994) 5 SCC 410 :

1994 SCC (Cri) 1433]…In the aforesaid premises, we are

of the considered opinion that an accused must be held to

have availed of his right flowing from the legislative

mandate engrafted in the proviso to sub-section (2) of

Section 167 of the Code if he has filed an application after

the expiry of the stipulated period alleging that no challan

has been filed and he is prepared to offer the bail that is

ordered, and it is found as a fact that no challan has been

filed within the period prescribed from the date of the arrest

of the accused. In our view, such interpretation would

subserve the purpose and the object for which the

29

provision in question was brought on to the statute-book. In

such a case, therefore, even if the application for

consideration of an order of being released on bail is

posted before the court after some length of time, or even if

the Magistrate refuses the application erroneously and the

accused moves the higher forum for getting a formal order

of being released on bail in enforcement of his indefeasible

right, then filing of challan at that stage will not take away

the right of the accused. Personal liberty is one of the

cherished objects of the Indian Constitution and deprivation

of the same can only be in accordance with law and in

conformity with the provisions thereof, as stipulated under

Article 21 of the Constitution. When the law provides that

the Magistrate could authorise the detention of the accused

in custody up to a maximum period as indicated in the

proviso to sub-section (2) of Section 167, any further

detention beyond the period without filing of a challan by

the investigating agency would be a subterfuge and would

not be in accordance with law and in conformity with the

provisions of the Criminal Procedure Code, and as such,

could be violative of Article 21 of the Constitution. There is

no provision in the Criminal Procedure Code authorising

detention of an accused in custody after the expiry of the

period indicated in proviso to sub-section (2) of Section 167

excepting the contingency indicated in Explanation I,

namely, if the accused does not furnish the bail…But so

long as the accused files an application and indicates in the

application to offer bail on being released by appropriate

orders of the court then the right of the accused on being

released on bail cannot be frustrated on the off chance of

the Magistrate not being available and the matter not being

moved, or that the Magistrate erroneously refuses to pass

an order and the matter is moved to the higher forum and a

challan is filed in interregnum. This is the only way how a

balance can be struck between the so-called indefeasible

right of the accused on failure on the part of the

prosecution to file a challan within the specified period and

the interest of the society, at large, in lawfully preventing an

accused from being released on bail on account of inaction

on the part of the prosecuting agency. On the aforesaid

premises, we would record our conclusions as follows:

xxx xxx xxx

30

3. On the expiry of the said period of 90 days or 60 days,

as the case may be, an indefeasible right accrues in

favour of the accused for being released on bail on

account of default by the investigating agency in the

completion of the investigation within the period

prescribed and the accused is entitled to be released on

bail, if he is prepared to and furnishes the bail as

directed by the Magistrate.

xxx xxx xxx

6. The expression “if not already availed of” used by this

Court in Sanjay Dutt case [(1994) 5 SCC 410 : 1994

SCC (Cri) 1433] must be understood to mean when the

accused files an application and is prepared to offer bail

on being directed. In other words, on expiry of the period

specified in para (a) of the proviso to sub-section (2) of

Section 167 if the accused files an application for bail

and offers also to furnish the bail on being directed, then

it has to be held that the accused has availed of his

indefeasible right even though the court has not

considered the said application and has not indicated the

terms and conditions of bail, and the accused has not

furnished the same.”

[Emphasis Supplied]

B.N. Agrawal J. dissented, holding:

“29. My learned brother has referred to the expression “if

not already availed of” referred to in the judgment in Sanjay

Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] for

arriving at Conclusion 6. According to me, the expression

“availed of” does not mean mere filing of application for bail

expressing therein willingness of the accused to furnish the

bail bond. What will happen if on the 61st day an

application for bail is filed for being released on bail on the

ground of default by not filing the challan by the 60th day

and on the 61st day the challan is also filed by the time the

Magistrate is called upon to apply his mind to the challan

as well as the petition for grant of bail? In view of the

several decisions referred to above and the requirements

prescribed by clause (a)(ii) of the proviso read with

Explanation I to Section 167(2) of the Code, as no bail

31

bond has been furnished, such an application for bail has

to be dismissed because the stage of proviso to Section

167(2) is over, as such right is extinguished the moment

the challan is filed.

30. In this background, the expression “availed of” does not

mean mere filing of the application for bail expressing

thereunder willingness to furnish bail bond, but the stage

for actual furnishing of bail bond must reach. If the challan

is filed before that, then there is no question of enforcing

the right, howsoever valuable or indefeasible it may be,

after filing of the challan because thereafter the right under

default clause cannot be exercised.”

25.The law laid down by the majority judgment in this case was however

not followed in Pragya Singh Thakur v. State of Maharashtra (2011)

10 SCC 445. This hiccup in the law was then cleared by the judgment

in Union of India v. Nirala Yadav (2014) 9 SCC 457, which

exhaustively discussed the entire case law on the subject. In this

judgment, a Two-Judge Bench of this Court referred to all the relevant

authorities on the subject including the majority judgment of Uday

Mohanlal Acharya (supra) and then concluded:

“44. At this juncture, it is absolutely essential to delve into

what were the precise principles stated in Uday Mohanlal

Acharya case [(2001) 5 SCC 453 : 2001 SCC (Cri) 760]

and how the two-Judge Bench has understood the same

in Pragyna Singh Thakur [(2011) 10 SCC 445 : (2012) 1

SCC (Cri) 311] . We have already reproduced the

paragraphs in extenso from Uday Mohanlal Acharya

case [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] and the

relevant paragraphs from Pragyna Singh Thakur [(2011) 10

SCC 445 : (2012) 1 SCC (Cri) 311] . Pragyna Singh

Thakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] has

drawn support from Rustam [1995 Supp (3) SCC 221 :

1995 SCC (Cri) 830] case to buttress the principle it has

32

laid down though in Uday Mohanlal Acharya case [(2001) 5

SCC 453 : 2001 SCC (Cri) 760] the said decision has been

held not to have stated the correct position of law and,

therefore, the same could not have been placed reliance

upon. The Division Bench in para 56 which has been

reproduced hereinabove, has referred to para 13 and the

conclusions of Uday Mohanlal Acharya case [(2001) 5 SCC

453 : 2001 SCC (Cri) 760] . We have already quoted from

para 13 and the conclusions.

45. The opinion expressed in paras 54 and 58 in Pragyna

Singh Thakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri)

311] which we have emphasised, as it seems to us, runs

counter to the principles stated in Uday Mohanlal

Acharya [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] which

has been followed in Hassan Ali Khan [(2011) 10 SCC

235 : (2012) 1 SCC (Cri) 256] and Sayed Mohd. Ahmad

Kazmi [(2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488] . The

decision in Sayed Mohd. Ahmad Kazmi case [(2012) 12

SCC 1 : (2013) 2 SCC (Cri) 488] has been rendered by a

three-Judge Bench. We may hasten to state, though

in Pragyna Singh Thakur case [(2011) 10 SCC 445 : (2012)

1 SCC (Cri) 311] the learned Judges have referred to Uday

Mohanlal Acharya case [(2001) 5 SCC 453 : 2001 SCC

(Cri) 760] but have stated the principle that even if an

application for bail is filed on the ground that the chargesheet was not filed within 90 days, but before the

consideration of the same and before being released on

bail, if the charge-sheet is filed the said right to be enlarged

on bail is lost. This opinion is contrary to the earlier larger

Bench decisions and also runs counter to the subsequent

three-Judge Bench decision in Mustaq Ahmed Mohammed

Isak case [(2009) 7 SCC 480 : (2009) 3 SCC (Cri) 449] .

We are disposed to think so, as the two-Judge Bench has

used the words “before consideration of the same and

before being released on bail”, the said principle

specifically strikes a discordant note with the proposition

stated in the decisions rendered by the larger Benches.

46. At this juncture, it will be appropriate to refer to the

dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal

Acharya case [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] .

33

The learned Judge dissented with the majority as far as

interpretation of the expression “if not already availed of” by

stating so: (SCC p. 481, paras 29-30)

“29. My learned Brother has referred to the expression ‘if

not already availed of’ referred to in the judgment

in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri)

1433] for arriving at Conclusion 6. According to me, the

expression ‘availed of’ does not mean mere filing of

application for bail expressing therein willingness of the

accused to furnish the bail bond. What will happen if on

the 61st day an application for bail is filed for being

released on bail on the ground of default by not filing the

challan by the 60th day and on the 61st day the challan

is also filed by the time the Magistrate is called upon to

apply his mind to the challan as well as the petition for

grant of bail? In view of the several decisions referred to

above and the requirements prescribed by clause (a)(ii)

of the proviso read with Explanation I to Section 167(2)

of the Code, as no bail bond has been furnished, such

an application for bail has to be dismissed because the

stage of proviso to Section 167(2) is over, as such right

is extinguished the moment the challan is filed.

30. In this background, the expression ‘availed of’ does

not mean mere filing of the application for bail expressing

thereunder willingness to furnish bail bond, but the stage

for actual furnishing of bail bond must reach. If the

challan is filed before that, then there is no question of

enforcing the right, howsoever valuable or indefeasible it

may be, after filing of the challan because thereafter the

right under default clause cannot be exercised.”

On a careful reading of the aforesaid two paragraphs, we

think, the two-Judge Bench in Pragyna Singh Thakur

case [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] has

somewhat in a similar matter stated the same. As long as

the majority view occupies the field it is a binding

precedent. That apart, it has been followed by a threeJudge Bench in Sayed Mohd. Ahmad Kazmi case [(2012)

12 SCC 1 : (2013) 2 SCC (Cri) 488] . Keeping in view the

principle stated in Sayed Mohd. Ahmad Kazmi case [(2012)

12 SCC 1 : (2013) 2 SCC (Cri) 488] which is based on

three-Judge Bench decision in Uday Mohanlal Acharya

34

case [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] , we are

obliged to conclude and hold that the principle laid down in

paras 54 and 58 of Pragyna Singh Thakur case [(2011) 10

SCC 445 : (2012) 1 SCC (Cri) 311] (which has been

emphasised by us: see paras 42 and 43 above) does not

state the correct principle of law. It can clearly be stated

that in view of the subsequent decision of a larger Bench

that cannot be treated to be good law. Our view finds

support from the decision in Union of India v. Arviva

Industries India Ltd. [(2014) 3 SCC 159].”

26. Also, in Syed Mohd. Ahmad Kazmi v. State (Govt. of NCT of Delhi)

(2012) 12 SCC 1, Section 43-D of the UAPA came up for

consideration before the Court, in particular the proviso which extends

the period for investigation beyond 90 days up to a period of 180 days.

An application for default bail had been made on 17.07.2012, as no

charge sheet was filed within a period of 90 days of the appellant’s

custody. The charge sheet in the aforesaid case was filed thereafter

on 31.07.2012. Despite the fact that this application was not taken up

for hearing before the filing of the charge sheet, this Court held that

this since an application for default bail had been filed prior to the filing

of the charge sheet the “indefeasible right” spoken of earlier had

sprung into action, as a result of which default bail had to be granted.

The Court held:

“25. Having carefully considered the submissions made on

behalf of the respective parties, the relevant provisions of

law and the decision cited, we are unable to accept the

submissions advanced on behalf of the State by the

learned Additional Solicitor General Mr Raval. There is no

35

denying the fact that on 17-7-2012, when CR No. 86 of

2012 was allowed by the Additional Sessions Judge and

the custody of the appellant was held to be illegal and an

application under Section 167(2) CrPC was made on

behalf of the appellant for grant of statutory bail which was

listed for hearing. Instead of hearing the application, the

Chief Metropolitan Magistrate adjourned the same till the

next day when the Public Prosecutor filed an application for

extension of the period of custody and investigation and on

20-7-2012 extended the time of investigation and the

custody of the appellant for a further period of 90 days with

retrospective effect from 2-6-2012. Not only is the

retrospectivity of the order of the Chief Metropolitan

Magistrate untenable, it could not also defeat the statutory

right which had accrued to the appellant on the expiry of 90

days from the date when the appellant was taken into

custody. Such right, as has been commented upon by this

Court in Sanjay Dutt [(1994) 5 SCC 410 : 1994 SCC (Cri)

1433] and the other cases cited by the learned Additional

Solicitor General, could only be distinguished

(sic extinguished) once the charge-sheet had been filed in

the case and no application has been made prior thereto

for grant of statutory bail. It is well-established that if an

accused does not exercise his right to grant of statutory

bail before the charge-sheet is filed, he loses his right to

such benefit once such charge-sheet is filed and can,

thereafter, only apply for regular bail.

26. The circumstances in this case, however, are different

in that the appellant had exercised his right to statutory bail

on the very same day on which his custody was held to be

illegal and such an application was left undecided by the

Chief Metropolitan Magistrate till after the application filed

by the prosecution for extension of time to complete

investigation was taken up and orders were passed

thereupon.

27. We are unable to appreciate the procedure adopted by

the Chief Metropolitan Magistrate, which has been

endorsed by the High Court and we are of the view that the

appellant acquired the right for grant of statutory bail on 17-

7-2012, when his custody was held to be illegal by the

Additional Sessions Judge since his application for

statutory bail was pending at the time when the application

36

for extension of time for continuing the investigation was

filed by the prosecution. In our view, the right of the

appellant to grant of statutory bail remained unaffected by

the subsequent application and both the Chief Metropolitan

Magistrate and the High Court erred in holding otherwise.”

27.In a fairly recent judgment reported as Rakesh Kumar Paul v. State

of Assam (2017) 15 SCC 67, a Three-Judge Bench of this Court

referred to the earlier decisions of this Court and went one step further.

It was held by the majority judgment of Madan B. Lokur, J. and

Deepak Gupta, J. that even an oral application for grant of default bail

would suffice, and so long as such application is made before the

charge sheet is filed by the police, default bail must be granted. This

was stated in Lokur, J.’s judgment as follows:

“37. This Court had occasion to review the entire case law

on the subject in Union of India v. Nirala Yadav [Union of

India v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5 SCC

(Cri) 212] . In that decision, reference was made to Uday

Mohanlal Acharya v. State of Maharashtra [Uday Mohanlal

Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001

SCC (Cri) 760] and the conclusions arrived at in that

decision. We are concerned with Conclusion (3) which

reads as follows: (Nirala Yadav case [Union of

India v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5 SCC

(Cri) 212] , SCC p. 472, para 24)

“‘13. (3) On the expiry of the said period of 90 days or 60

days, as the case may be, an indefeasible right accrues

in favour of the accused for being released on bail on

account of default by the investigating agency in the

completion of the investigation within the period

prescribed and the accused is entitled to be released on

bail, if he is prepared to and furnishes the bail as

directed by the Magistrate.’ (Uday Mohanlal case [Uday

Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC

453 : 2001 SCC (Cri) 760] , SCC p. 473, para 13)”

37

38. This Court also dealt with the decision rendered

in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 :

1994 SCC (Cri) 1433] and noted that the principle laid

down by the Constitution Bench is to the effect that if the

charge-sheet is not filed and the right for “default bail” has

ripened into the status of indefeasibility, it cannot be

frustrated by the prosecution on any pretext. The accused

can avail his liberty by filing an application stating that the

statutory period for filing the charge-sheet or challan has

expired and the same has not yet been filed and therefore

the indefeasible right has accrued in his or her favour and

further the accused is prepared to furnish the bail bond.

39. This Court also noted that apart from the possibility of

the prosecution frustrating the indefeasible right, there are

occasions when even the court frustrates the indefeasible

right. Reference was made to Mohd. Iqbal Madar

Sheikh v. State of Maharashtra [Mohd. Iqbal Madar

Sheikh v. State of Maharashtra, (1996) 1 SCC 722 : 1996

SCC (Cri) 202] wherein it was observed that some courts

keep the application for “default bail” pending for some

days so that in the meantime a charge-sheet is submitted.

While such a practice both on the part of the prosecution

as well as some courts must be very strongly and

vehemently discouraged, we reiterate that no subterfuge

should be resorted to, to defeat the indefeasible right of the

accused for “default bail” during the interregnum when the

statutory period for filing the charge-sheet or challan

expires and the submission of the charge-sheet or challan

in court.

Procedure for obtaining default bail

40. In the present case, it was also argued by the learned

counsel for the State that the petitioner did not apply for

“default bail” on or after 4-1-2017 till 24-1-2017 on which

date his indefeasible right got extinguished on the filing of

the charge-sheet. Strictly speaking, this is correct since the

petitioner applied for regular bail on 11-1-2017 in the

Gauhati High Court — he made no specific application for

grant of “default bail”. However, the application for regular

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bail filed by the accused on 11-1-2017 did advert to the

statutory period for filing a charge-sheet having expired

and that perhaps no charge-sheet had in fact being filed. In

any event, this issue was argued by the learned counsel for

the petitioner in the High Court and it was considered but

not accepted by the High Court. The High Court did not

reject the submission on the ground of maintainability but

on merits. Therefore it is not as if the petitioner did not

make any application for default bail — such an application

was definitely made (if not in writing) then at least orally

before the High Court. In our opinion, in matters of

personal liberty, we cannot and should not be too technical

and must lean in favour of personal liberty. Consequently,

whether the accused makes a written application for

“default bail” or an oral application for “default bail” is of no

consequence. The court concerned must deal with such an

application by considering the statutory requirements,

namely, whether the statutory period for filing a chargesheet or challan has expired, whether the charge-sheet or

challan has been filed and whether the accused is

prepared to and does furnish bail.

41. We take this view keeping in mind that in matters of

personal liberty and Article 21 of the Constitution, it is not

always advisable to be formalistic or technical. The history

of the personal liberty jurisprudence of this Court and other

constitutional courts includes petitions for a writ of habeas

corpus and for other writs being entertained even on the

basis of a letter addressed to the Chief Justice or the

Court.

xxx xxx xxx

Application of the law to the petitioner

45. On 11-1-2017 [Rakesh Kumar Paul v. State of Assam,

2017 SCC OnLine Gau 573] when the High Court

dismissed the application for bail filed by the petitioner, he

had an indefeasible right to the grant of “default bail” since

the statutory period of 60 days for filing a charge-sheet had

expired, no charge-sheet or challan had been filed against

him (it was filed only on 24-1-2017) and the petitioner had

39

orally applied for “default bail”. Under these circumstances,

the only course open to the High Court on 11-1-2017 was

to enquire from the petitioner whether he was prepared to

furnish bail and if so then to grant him “default bail” on

reasonable conditions. Unfortunately, this was completely

overlooked by the High Court.

46. It was submitted that as of today, a charge-sheet

having been filed against the petitioner, he is not entitled to

“default bail” but must apply for regular bail — the “default

bail” chapter being now closed. We cannot agree for the

simple reason that we are concerned with the interregnum

between 4-1-2017 and 24-1-2017 when no charge-sheet

had been filed, during which period he had availed of his

indefeasible right of “default bail”. It would have been

another matter altogether if the petitioner had not applied

for “default bail” for whatever reason during this

interregnum. There could be a situation (however rare)

where an accused is not prepared to be bailed out perhaps

for his personal security since he or she might be facing

some threat outside the correction home or for any other

reason. But then in such an event, the accused voluntarily

gives up the indefeasible right for default bail and having

forfeited that right the accused cannot, after the chargesheet or challan has been filed, claim a resuscitation of the

indefeasible right. But that is not the case insofar as the

petitioner is concerned, since he did not give up his

indefeasible right for “default bail” during the interregnum

between 4-1-2017 and 24-1-2017 as is evident from the

decision of the High Court rendered on 11-1-2017 [Rakesh

Kumar Paul v. State of Assam, 2017 SCC OnLine Gau 573]

. On the contrary, he had availed of his right to “default bail”

which could not have been defeated on 11-1-2017 and

which we are today compelled to acknowledge and

enforce.

47. Consequently, we are of the opinion that the petitioner

had satisfied all the requirements of obtaining “default bail”

which is that on 11-1-2017 he had put in more than 60

days in custody pending investigations into an alleged

offence not punishable with imprisonment for a minimum

period of 10 years, no charge-sheet had been filed against

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him and he was prepared to furnish bail for his release, as

such, he ought to have been released by the High Court on

reasonable terms and conditions of bail.

xxx xxx xxx

49. The petitioner is held entitled to the grant of “default

bail” on the facts and in the circumstances of this case. The

trial Judge should release the petitioner on “default bail” on

such terms and conditions as may be reasonable.

However, we make it clear that this does not prohibit or

otherwise prevent the arrest or re-arrest of the petitioner on

cogent grounds in respect of the subject charge and upon

arrest or re-arrest, the petitioner is entitled to petition for

grant of regular bail which application should be considered

on its own merit. We also make it clear that this will not

impact on the arrest of the petitioner in any other case.”

28.Deepak Gupta, J. in his concurring opinion agreed with Lokur, J. as

follows:

“82. The right to get “default bail” is a very important right.

Ours is a country where millions of our countrymen are

totally illiterate and not aware of their rights. A Constitution

Bench of this Court in Sanjay Dutt [Sanjay Dutt v. State,

(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] has held that the

accused must apply for grant of “default bail”. As far as

Section 167 of the Code is concerned, Explanation I to

Section 167 provides that notwithstanding the expiry of the

period specified (i.e. 60 days or 90 days, as the case may

be), the accused can be detained in custody so long as he

does not furnish bail. Explanation I to Section 167 of the

Code reads as follows:

“Explanation I.—For the avoidance of doubts, it is hereby

declared that, notwithstanding the expiry of the period

specified in para (a), the accused shall be detained in

custody so long as he does not furnish bail.”

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This would, in my opinion, mean that even though the

period had expired, the accused would be deemed to be in

legal custody till he does not furnish bail. The requirement

is of furnishing of bail. The accused does not have to make

out any grounds for grant of bail. He does not have to file a

detailed application. All he has to aver in the application is

that since 60/90 days have expired and charge-sheet has

not been filed, he is entitled to bail and is willing to furnish

bail. This indefeasible right cannot be defeated by filing the

charge-sheet after the accused has offered to furnish bail.

xxx xxx xxx

86. I agree and concur with the conclusions drawn and

directions given by learned Brother Lokur, J. in paras 49 to

51 of his judgment.”

P.C. Pant, J., however, dissented holding:

“113. The law laid down as above shows that the

requirement of an application claiming the statutory right

under Section 167(2) of the Code is a prerequisite for the

grant of bail on default. In my opinion, such application has

to be made before the Magistrate for enforcement of the

statutory right. In the cases under the Prevention of

Corruption Act or other Acts where Special Courts are

constituted by excluding the jurisdiction of the Magistrate, it

has to be made before such Special Court. In the present

case, for the reasons discussed, since the appellant never

sought default bail before the court concerned, as such is

not entitled to the same.”

A conspectus of the aforesaid decisions would show that so long as

an application for grant of default bail is made on expiry of the period

of 90 days (which application need not even be in writing) before a

charge sheet is filed, the right to default bail becomes complete. It is of

no moment that the Criminal Court in question either does not dispose

42

of such application before the charge sheet is filed or disposes of such

application wrongly before such charge sheet is filed. So long as an

application has been made for default bail on expiry of the stated

period before time is further extended to the maximum period of 180

days, default bail, being an indefeasible right of the accused under the

first proviso to Section 167(2), kicks in and must be granted.

29.On the facts of the present case, the High Court was wholly incorrect

in stating that once the challan was presented by the prosecution on

25.03.2019 as an application was filed by the Appellant on 26.03.2019,

the Appellant is not entitled to default bail. First and foremost, the High

Court has got the dates all wrong. The application that was made for

default bail was made on or before 25.02.2019 and not 26.03.2019.

The charge sheet was filed on 26.03.2019 and not 25.03.2019. The

fact that this application was wrongly dismissed on 25.02.2019 would

make no difference and ought to have been corrected in revision. The

sole ground for dismissing the application was that the time of 90 days

had already been extended by the learned Sub-Divisional Judicial

Magistrate, Ajnala by his order dated 13.02.2019. This Order was

correctly set aside by the Special Court by its judgment dated

25.03.2019, holding that under the UAPA read with the NIA Act, the

Special Court alone had jurisdiction to extend time to 180 days under

the first proviso in Section 43-D(2)(b). The fact that the Appellant filed

43

yet another application for default bail on 08.04.2019, would not mean

that this application would wipe out the effect of the earlier application

that had been wrongly decided. We must not forget that we are dealing

with the personal liberty of an accused under a statute which imposes

drastic punishments. The right to default bail, as has been correctly

held by the judgments of this Court, are not mere statutory rights

under the first proviso to Section 167(2) of the Code, but is part of the

procedure established by law under Article 21 of the Constitution of

India, which is, therefore, a fundamental right granted to an accused

person to be released on bail once the conditions of the first proviso to

Section 167(2) are fulfilled. This being the case, we set aside the

judgment of the High Court. The Appellant will now be entitled to be

released on “default bail” under Section 167(2) of the Code, as

amended by Section 43-D of the UAPA. However, we make it clear

that this does not prohibit or otherwise prevent the arrest or re-arrest of

the petitioner on cogent grounds, and upon arrest or re-arrest, the

petitioner is entitled to petition for the grant of regular bail which

application should be considered on its own merit. We also make it

clear that this judgement will have no impact on the arrest of the

petitioner in any other case.

30.The appeal is, accordingly, allowed, and the impugned judgement of

the High Court is set aside.

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……………………… J.

(R.F. Nariman)

……………………… J.

(Navin Sinha)

……………………… J.

(K.M. Joseph)

New Delhi.

October 12, 2020.

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