It is true that, as per Section 28 of the DV 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 Criminal Procedure Code, 1973 (for short, ‘the Cr. P.C.’ hereinafter). Even though Section 29 of the DV Act not specifically mentioned in Section 28, appeal provided under Section 29 of the DV Act is against orders passed under Sections 12, 18, 19, 20, 21, 22 and 23 of the DV Act. If so, the provisions of the Cr. P.C. is not excluded in an appeal filed under Section 29 of the DV Act, even though the provisions of the DV Act not given specific powers to the appellate court to grant interim orders. When a statute gives power to an appellate court to decide a matter in issue after reappreciating the evidence to set aside, vary or confirm the order, the appellate court should have the power to regulate the proceedings of the appeal till its disposal. If so, the appellate court if held to be lacking power to pass interim orders, the plight of the party who succeeds in the appeal will be in trouble. If so, it is difficult to lay down a ratio that the appellate court dealing with the appeal under Section 29 of the Act, has no power to pass an interim order, since the said power is not conferred by the DV Act. On the contrary, the appellate court can pass interim orders to regulate and to proceed with the appeal to do complete justice in between the parties, during the pendency of appeal, by resroting to the provisions of the Cr. P.C. or by resorting to its incidental or ancillary power embodied in the appellate jurisdiction following the principle embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest’ (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.). Therefore, negativing the contention raised by the learned counsel for the petitioners, it is held that, an appellate court dealing with an appeal under Section 29 of the DV Act, is empowered to grant interim order/interim orders during pendency of an appeal to regulate the proceedings till disposal of the appeal on merits and to do justice between the parties. {Para 10}
In the High Court of Kerala at Ernakulam
(Before A. Badharudeen, J.)
Farsana P.S. and Another Vs Razveen Raffique
CRL.MC No. 6782 of 2024
Decided on October 14, 2024
Citation: 2024 SCC OnLine Ker 6055
The Order of the Court was delivered by
A. Badharudeen, J.:— This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (wrongly quoted as Section 482 of the Criminal Procedure Code, 1973), by the petitioners, challenging Annexure A6 order, whereby, the learned Sessions Judge stayed enforcement of order, dated 18.4.2024 in C.M.P. No. 1341/2023 in M.C. No. 18/2023 on the files of the Judicial First Class Magistrate Court-II, Kochi, granting maintenance at the rate of Rs. 40,000/- per month to the petitioners herein.
2. Heard the learned counsel for the petitioners, the learned counsel appearing for the 1st respondent and the learned Public Prosecutor.
3. At the time of admission hearing itself, the learned counsel for the petitioners, who are the petitioners in the M.C. and in the C.M.P., raised a question, after referring the decision of the Apex Court in Shalu Ojha v. Prashant Ojha reported in [(2015) 2 SCC 99] with reference to paragraph Nos. 25, 26, 29 and 30 contending that, even though an interim order passed under the Protection of Women from Domestic Violence Act, 2005 (for short, ‘the DV Act’ hereinafter) is appealable under Section 29 of the DV Act, the appellate court has no power to pass interim orders, as the said power is not provided under the DV Act.
4. Now, the question falls for consideration is, whether an appellate court exercising appeal under Section 29 of the DV Act, is empowered to grant an interim order during pendency of the appeal?
5. In this connection, it is necessary to refer Shalu Ojha’s case (supra), wherein, it was held in paragraph Nos. 25, 26, 29 and 30, as under:
25. Section 29 provides for an appeal to the Court of Session against any order passed by the Magistrate under the Act either at the instance of the aggrieved person or the respondent.
26. One important factor to be noticed in the context of the present case is that while Section 23 expressly confers power on the Magistrate to grant interim orders, there is no express provision conferring such power on the Sessions Court in exercise of its appellate jurisdiction. Section 23 reads as follows:
“Section 23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”
29. We only note that there is no express grant of power conferred on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is not always inherent in every Court. Such powers are either expressly conferred or implied in certain circumstances. This Court in Super Cassettes Industries Limited v. Music Broadcast Private Limited, (2012) 5 SCC 488, examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of his appeal, for that issue has not been argued before us.
30. We presume (we emphasize that we only presume for the purpose of this appeal) that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and conditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does not have the power to grant interim orders during the pendency of the appeal, the Sessions Court ought not to have stayed the execution of the maintenance order passed by the Magistrate. Since the respondent did not comply with such conditional order, the Sessions Court thought it fit to dismiss the appeal. Challenging the correctness of the said dismissal, the respondent carried the matter before the High Court invoking Section 482 of the Criminal Procedure Code, 1973 and Article 227 of the Constitution.
He also pointed out other decisions extracted in the Crl.M.C. to contend that, when there is no statutory power to an appellate court to pass an interim order, it could not exercise such power unless available. In this connection, he has placed reliance on the decisions in Super Cassettes Industries Limited v. Music Broadcast Private Limited [(2012) 5 SCC 488], OPTO Circuit India Ltd. v. Axis Bank [(2021) 6 SCC 707], Chandra Kishore Jha v. Mahavir Prasad [(1999) 8 SCC 266], Nazir Ahmad v. King Emperor [(1935-36) 63 IA 372 : AIR 1936 PC 253 (II)], State of Gujarat v. Shanthi Lal Mangaladas [(1969) 1 SCC 509], Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh [(2015) 13 SCC 722], Centre for PIL v. Union of India (UOI) [(2012) 3 SCC 117], Rajnesh v. Neha [2020 (6) KHC 1] and Aditi Alias Mithi v. Jithesh Sharma [2023 KHC OnLine 6982]. The learned counsel for the petitioners given much emphasis to the decision reported in State of Gujarat v. Shanthi Lal Mangaladas (supra), which followed the decision in Tailor v. Tailor [([L.R.] 1 Ch. 426)], to contend that it is settled rule of interpretation of statute that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all.
6. Repelling this contention, the learned counsel for the 1st respondent placed decision of the Punjab and Haryana High Court in Bhanu Kiran v. Rahul Khosla reported in [2023 0 Supreme (P&H) 339]. While considering similar question, Punjab and Haryana High Court held as under:
17. A two judge bench of Apex Court in Shalu Ojha (supra) as cited by petitioner, noticed question of power to grant interim while hearing appeal under Section 29 against interim maintenance granted under Section 23 of DV Act, however left the question open. The findings recorded by Apex Court read:
20. Questioning the correctness of the Magistrate’s order in granting the maintenance of Rs. 2.5 lakhs per month the respondent carried the matter in appeal under Section 29 to the Sessions Court and sought stay of the execution of the order of the Magistrate during the pendency of the appeal. Whether the Sessions Court in exercise of its jurisdiction under Section 29 of the Act has any power to pass interim orders staying the execution of the order appealed before it is a matter to be examined in an appropriate case. We only note that there is no express grant of power conferred on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is not always inherent in every court. Such powers are either expressly conferred or implied in certain circumstances. This Court in Super Cassettes Industries Ltd. v. Music Broadcast (P) Ltd. [(2012) 5 SCC 488: (2012) 3 SCC (Civ) 1], examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of his appeal, for that issue has not been argued before us.
21. We presume (we emphasise that we only presume for the purpose of this appeal) that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and conditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does not have the power to grant interim orders during the pendency of the appeal, the Sessions Court ought not to have stayed the execution of the maintenance order passed by the Magistrate. Since the respondent did not comply with such conditional order, the Sessions Court thought it fit to dismiss the appeal. Challenging the correctness of the said dismissal, the respondent carried the matter before the High Court invoking Section 482 of the Criminal Procedure Code, 1973 and Article 227 of the Constitution.
From the above quoted extracts of Hon’ble Supreme Court judgment, it is quite evident that Hon’ble Court has left the issue of power of appellate court to grant interim relief open. Thus, it would be appropriate to look at judicial precedents dealing with powers of appellate courts/tribunals.
18. Hon’ble Supreme Court in State of Karnataka v. Vishwabharathi House Building Coop. Society, (2003) 2 SCC 412 while dealing with scope of incidental and ancillary powers of courts/tribunals has held:
59. It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to possess power to execute their own order.
60. It is also well settled that a statutory tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a selfcontained code, even if it has not been specifically spelt out, must be deemed to have conferred upon the Tribunal all powers in order to make its order effective.
61. In Savitri v. Govind Singh Rawat (1985) 4 SCC 337 it has been held as follows : (SCC pp. 341-42, para 6)
“Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest’ (where anything is conceded, there is conceded also anything without which the thing itself cannot exist). (Vide Earl Jowitt’s Dictionary of English Law, 1959 Edn., p. 1797.) Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties.”
62. In Arabinda Das v. State of Assam AIR 1981 Gau 18 (FB), it has been held as follows : (AIR p. 31, para 22)
“We are of firm opinion that where a statute gives a power, such power implies that all legitimate steps may be taken to exercise that power even though these steps may not be clearly spelt in the statute. Where the rulemaking authority gives power to certain authority to do anything of public character, such authority should get the power to take intermediate steps in order to give effect to the exercise of the power in its final step, otherwise the ultimate power would become illusory, ridiculous and inoperative which could not be the intention of the rule-making authority. In determining whether a power claimed by the statutory authority can be held to be incidental or ancillary to the powers expressly conferred by the statute, the court must not only see whether the power may be derived by reasonable implication from the provisions of the statute, but also whether such powers are necessary for carrying out the purpose of the provisions of the statute which confers power on the authority in its exercise of such power.”
19. A three judge bench of the Hon’ble Supreme Court in ITO v. M.K. Mohd. Kunhi, AIR 1969 SC 430 while dealing with power of appellate tribunal, in the absence of specific provision, to grant stay while exercising powers of appellate authority has held:
13. Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceedings as will prevent the appeal if successful from being rendered nugatory.
20. Hon’ble Supreme Court in J.K. Synthetics Ltd. v. CCE (1996) 6 SCC 92, while dealing with power of Customs, Excise and Gold (Control) Appellate Tribunal, to recall an ex-pare order has held:
“6. If, in a given case, it is established that the respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every tribunal and court constituted to do justice has in this respect, Cegat is clothed with express power under Rule 41 to make such order as is necessary to secure the ends of justice. Cegat has, therefore, the power to set aside an order passed ex parte against the respondent before it if it is found that the respondent had, for sufficient cause, been unable to appear.”
From the perusal of above-cited judgments, it is quite lucid that courts/tribunals are always possessed with incidental and ancillary powers which are necessary to adjudicate the dispute. Whether a power is incidental or ancillary to power conferred by statute depends upon the necessity to carry out the power conferred by the Statute.
Under DV Act, Magistrate is competent to pass final as well as interim orders. Sessions Court is appointed as appellate authority to entertain appeal against order passed by Magistrate. As per petitioner, appellate Court is not specifically vested with power to grant interim relief, thus, appellate court cannot pass interim order staying operation of impugned order. If it is held that under Section 29 appellate court is not bestowed with power to pass interim order against interim order because there is no specific power under Section 29, the appellate court would be denuded from power to pass interim order even against final order because there is no such specific power qua final order. Existence of power and use of power are two different dimensions of legal jurisprudence.
Matter needs to be examined from one more angle. The appellate court may or may not exercise power to pass interim order, however, if it is held that appellate court in terms of Section 29 has no power to pass interim order, it would amount to curtailing the powers of appellate court. It seems to be contrary to settled canons of law that appellate authority or court unless specifically barred can exercise all those powers which are vested in subordinate authority. It cannot be approved that Magistrate has power to pass interim order, however, appellate court has no power to pass interim order. Due to overburden, more often than not, appellate courts are unable to finally adjudicate appeal against interim order and if it is held that appellate court has no power to pass interim order, Magistrate may finally decide the issue and appeal would become infructuous.
In view of above-cited judgments and settled principles of law, this court is of the considered opinion that appellate court while exercising powers under Section 29 of DV Act has power to pass interim order.
That apart, the learned counsel placed decision of a three bench decision of the Apex Court in Income Tax Officer, Cannanore v. M.K. Mohamad Kunhi reported in [AIR 1969 SC 430], where the Apex Court while dealing with Section 255(5) of the Income Tax Act, 1961 held in paragraph No. 8 as under:
“Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory.”
The learned counsel also placed decision of this Court in Crl.M.C. No. 6121/2015, dated 14.9.2015, to contend that the Sessions Judge has power to stay the proceedings in the trial court in DV Act, granting maintenance. Another decision of the Apex Court in Smt. Savitri v. Govind Singh Rawat reported in [(1985) 4 SCC 337 : AIR 1986 SC 984] has also placed to contend that, in the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under S. 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under S. 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under S. 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest’ (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt’s Dictionary of English Law 1959 Edn. P.1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment.
7. In this matter, the trial court granted Rs. 40,000/- as maintenance for two persons and the learned Sessions Judge reduced the same to the tune of Rs. 10,000/- for two persons, while staying execution of the trial court order, while entertaining an appeal filed under Section 29 of the DV Act, challenging the said order.
8. Coming to the question poses herein, in Shalu Ojha’scase (supra), the Apex Court not decided the question as to whether the Sessions Judge has the power to grant interim order while considering an appeal filed under Section 29 of the DV Act, though it has been observed that, while Section 23 of the DV Act expressly confers power on the Magistrate to grant interim orders, there is no express provision to confer such power on the Sessions Court in exercise of its appellate jurisdiction. It was observed further that, power to grant interim orders, is not always inherent in every court, though such powers are either expressly conferred or implied in certain circumstances. Thus, it could not be held that in the decision in Shalu Ojha’s case (supra), the Apex Court laid a ratio holding that, Sessions Court dealing with an appeal under Section 29 of the DV Act, has no power to grant interim orders. In Income Tax Officer, Cannanore’s case (supra), the Apex Court dealt under Section 255(5) of the Income Tax Act, 1961 and held that, ‘in our opinion, the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction.’ In Smt. Savitri’s case (supra), the Apex Court held that, every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective and this principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest’ (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt’s Dictionary of English Law 1959 Edn. P.1797).
9. As pointed out by the learned counsel for the petitioners in State of Gujarat v. Shanthi Lal Mangaladas’s case (supra), the Apex Court held that, it is settled rule of interpretation of statute that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all. As per Section 29 of the DV Act, there shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
10. It is true that, as per Section 28 of the DV 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 Criminal Procedure Code, 1973 (for short, ‘the Cr. P.C.’ hereinafter). Even though Section 29 of the DV Act not specifically mentioned in Section 28, appeal provided under Section 29 of the DV Act is against orders passed under Sections 12, 18, 19, 20, 21, 22 and 23 of the DV Act. If so, the provisions of the Cr. P.C. is not excluded in an appeal filed under Section 29 of the DV Act, even though the provisions of the DV Act not given specific powers to the appellate court to grant interim orders. When a statute gives power to an appellate court to decide a matter in issue after reappreciating the evidence to set aside, vary or confirm the order, the appellate court should have the power to regulate the proceedings of the appeal till its disposal. If so, the appellate court if held to be lacking power to pass interim orders, the plight of the party who succeeds in the appeal will be in trouble. If so, it is difficult to lay down a ratio that the appellate court dealing with the appeal under Section 29 of the Act, has no power to pass an interim order, since the said power is not conferred by the DV Act. On the contrary, the appellate court can pass interim orders to regulate and to proceed with the appeal to do complete justice in between the parties, during the pendency of appeal, by resroting to the provisions of the Cr. P.C. or by resorting to its incidental or ancillary power embodied in the appellate jurisdiction following the principle embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest’ (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.). Therefore, negativing the contention raised by the learned counsel for the petitioners, it is held that, an appellate court dealing with an appeal under Section 29 of the DV Act, is empowered to grant interim order/interim orders during pendency of an appeal to regulate the proceedings till disposal of the appeal on merits and to do justice between the parties.
11. In this matter, as per the order passed by the learned Magistrate, as an interim arrangement, Rs. 40,000/- in lump was ordered as maintenance to the petitioners 1 and 2 and the rationale to pass such an order is that the petitioners raised a contention that the 1st respondent herein has been drawing a salary of Rs. 2 Lakh and he also earns Rs. 1 Lakh from Real Estate business.
12. The trial court also considered that the 1st respondent has been working as a Sales Executive and his monthly income comes to Rs. 1,77,764/-. The 1st respondent placed copy of the medical certificate issued from Amritha Institute of Medical Sciences and Research Centre, dated 23.7.2023, before this Court, contending that, the 1st respondent got admitted at Amritha hospital between 16.7.2023 to 23.7.2023 to treat Multifocal acquired demyclinating sensory and motor neuropathy Hypovitaminosis D, and he left the job abroad. In fact, the said document not produced before the trial court. The age of the 1st respondent is 35 years and he was discharged with advise to take medicines. In fact, the treatment certificate cannot be acted upon by this Court while entertaining the petition, otherwise treatment for some disease is not a ground to hold that the 1st respondent’s income fully stopped. Further, the said aspect is not proved and the same yet to be proved by adducing evidence. Here, the order passed by the trial court is an interim order and this Crl.M.C. has been filed challenging another interim order passed by the Sessions Judge reducing the amount of Rs. 10,000/- instead of Rs. 40,000/-. It seems that the appellate court reduced the maintenance to a substantially lower amount by passing an interim order without application of mind, where the income of the 1st respondent is claimed as Rs. 1,77,764/- by working as a Sales Executive in Dubai.
13. In the discharge summary relied on by the learned counsel for the 1st respondent itself, it is stated that the 1st respondent is a person hailing from Dubai.
Having considered the above aspects, as an interim arrangement, till the disposal of the appeal by the appellate court, the order impugned stands modified, with direction to the 1st respondent herein to pay monthly maintenance at the rate of Rs. 25,000/- as lump to the petitioners and clear the arrears till this date, within thirty days from today and to continue the said payment, till the disposal of the appeal by the appellate court.
This Criminal Miscellaneous Case stands allowed in part as indicated above.