DISTRICT JUDICIARY

ANANTHAPURAMU

“OFFENCES UNDER SPECIAL ENACTMENTS”

PAPER PRESENTATIONS
WORKSHOP-III
YEAR-2024
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Offence under Section 138 of Negotiable Instrument Act

Special emphasis on

(a) Offence under Section 138 of Negotiable instrument Act ingredients and
case Law

(b) Cognizance, Limitation, jurisdiction – a study

(c) Interim compensation and its recovery.

(d) Compounding of offence – execution of Lok-Adalath Award.

Presented by:
Smt. [Link],
Additional Civil Judge (Senior Division)
Ananthapuramu.
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Introduction

The Negotiable Instrument Act 1881 (hereafter referred as N.I. Act) was
originally drafted in 1866 by the third Indian Law Commission and introduced
in December 1867 in the counsel and it was referred to Selection Committee.
The draft prepared for the 4th time was introduced in the counsel and was
passed into law in 1881 being the Negotiable Instrument Act (Act No.26 of
1881).

The word Negotiable means “Transferable by delivery and instrument in

means in written document by which a right is created in favour of some
person or persons. Thus the term Negotiable Instrument literally means a
written document which creates a right in favour of somebody and is freely
transferable.

In view of decision Vinaya Devanna Nayak vs Ryot Sewa Sahakari

Bank Limited reported in AIR 2008 SC 716, wherein the Hon’ble court held
that “ in the world of business, the cheque, as a negotiable instrument, was
losing its credibility because of lack of responsibility on the part of drawer. To
bring back the credibility, to inculcate faith in the efficacy of the banking
operations in transacting business on Negotiable instrument in general to
bring the erring drawer to book, so that such irresponsibility is not
perpetuated, to protect the honest drawer, to safeguard the payee who is
almost a loser, this section was brought on statue.”

Further in view of decision Birsingh vs Mukesh Kumar reported in

(2019) 4 SCC 197, wherein the Hon’ble court held that “" If a signed blank
cheque is voluntarily presented to a payee, towards some payment, the payee
may fill up the amount and other particulars. This in itself would not invalidate
the cheque. The onus would still be on the accused to prove that the cheque
was not in discharge of a debt or liability by adducing evidence. A meaningful
reading of the provisions of the Negotiable Instruments Act including, in
particular, Sections 20, 87 and 139, makes it amply clear that a person who
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signs a cheque and makes it over to the payee remains liable unless he
adduces evidence to rebut the presumption that the cheque had been issued
for payment of a debt or in discharge of a liability. It is immaterial that the 26
cheque may have been filled in by any person other than the drawer, if the
cheque is duly signed by the drawer. If the cheque is otherwise valid, the
penal provisions of Section 138 would be attracted."

The enactment of Negotiable Instrument Act Section 138 to 142,

chapter XVII were inserted in the Act vide section 4 of Banking, Financial
Institution and Negotiable instrument Laws (Amendment) Act, 1988 (Act 66 of
1988). these sections came into force with effect from 29.03.1959.
Subsequently, the Negotiable Instrument Act in the year 2015 (inserting of
sub section in explanation 1 (a), explanation III in Section 6, Section 142(2)
and 142-A of N.I Act) and in the year of 2018 (insertion of Section 143A and
Section 148 of Negotiable Instrument Act).

Negotiable Instruments are of following kinds.

1. Promissory notes

2. Bill of Exchange

3. Cheque.

Section 138 of Act deals with dishonor of cheque. It has no concern with
dishonor of other negotiable instruments.

Section 6 of N.I. Act defines a cheque as a bill of exchange drawn on a

specified banker and not expressed to be payable otherwise then on demand
and it includes the electronic image of a truncated cheque and a cheque in
electronic form.

Explanation I.—For the purposes of this section, the expressions— (a)"a

cheque in the electronic form" means a cheque drawn in electronic form by
using any computer resource and signed in a secure system with digital
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signature (with or without biometrics signature) and asymmetric crypto system

or with electronic signature, as the case may be; (b) “a truncated cheque”
means a cheque which is truncated during the course of a clearing cycle,
either by the clearing house or by the bank whether paying or receiving
payment, immediately on generation of an electronic image for transmission,
substituting the further physical movement of the cheque in writing.
Explanation II.—For the purposes of this section, the expression “clearing
house” means the clearing house managed by the Reserve Bank of India or a
clearing house recognised as such by the Reserve Bank of India.
Explanation III.—For the purposes of this section, the expressions
"asymmetric crypto system", "computer resource", "digital signature",
"electronic form" and "electronic signature" shall have the same meanings
respectively assigned to them in the Information Technology Act, 2000.

 Kinds of Cheques:
In view of decision Nitin Chadha vs. M/s Swastik Vegetable
Products Pvt. Ltd. & Anr., 2015(3) RCR (Civil) 872 (P&H) the Hon'ble High
Court explained the kinds of cheques as under:
1. Open cheque: The issuer of the cheque would just fill the name of the
person to whom the cheque is issued, writes the amount and attaches his
signature and nothing else. This type of issuing a cheque is also called bearer
type cheque also known as open cheque or uncrossed cheque. The cheque is
negotiable from the date of issue to three months. The issued cheque turns
stale after the completion of three months. It has to be revalidated before
presenting to the bank.
2. Bearer cheque: Same as Open Cheque
3. Crossed cheque: It is written in the same as that of bearer cheque but
issuer specifically specifies it as account payee on the left hand top corner or
simply crosses it twice with two paralled lines on the right hand top corner.
The bearer of the cheque presenting it to the bank should have an account in
the branch to which the written sum is deposited. It is safest type of cheques.
4. Account Payee cheque: Same as Crossed Cheque
5. Self cheque: A self cheque is written by the account holder as pay self to
receive the money in the physical form from the branch where he holds his
account.
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6. Pay yourself cheque: The account holder issues this type of crossed
cheque to the bank asking the bank to deduct money from his account into
bank's own account for the purpose of buying banking products like drafts,
pay orders, fixed deposit receipts or for depositing money into other accounts
held by him like recurring deposits and loan accounts.
7. Post dated cheque: A PDC is a form of a crossed or account payee bearer
cheque but post dated to meet the said financial obligation at a future date.
8. Local cheque: A local cheque is a type of cheque which is valid in the given
city and a given branch in which the issuer has an account and to which it is
connected. The producer of the cheque in whose name it is issued can
directly go to the designated bank and receive the money in the physical form.
If a given city's local cheque is presented elsewhere it shall attract some fixed
banking charges. Although these type of cheques are still prevalent, especially
with nationalised banks. It is slowly stated to be removed with at par cheque
type.
9. At par cheque: With the computerisation and networking of bank branches
with its head quarters, a variation to the local cheque has become common
place in the name of at par cheque. At par cheque is a cheque which is
accepted at par at all its branches across the country. Unlike local cheque it
can be presented across the country without attracting additional banking
charges.
10. Banker's cheque: It is a kind of cheque issuedby the bank itself connected
to its own funds. It is a kind of assurance given by the issuer to the client to
alley your fears. The personal account connected cheques may bounce for
want of funds in his account. To avoid such hurdles, sometimes, the receiver
seeks banker's cheque.
11. Traveller's cheque: They are a kind of an open type bearer cheque issued
by the bank which can be used by the user for withdrawal of money while
touring. It is equivalent to carrying cash but in a safe form without fear of
losing it.
12. Gift cheque: This is another banking instrument introduced for gifting
money to the loved ones instead of hard cash.”
The ingredients of offence under Section 138 of N.I. Act:-
Though Section 138 of N.I. Act penalizes the dishonor of a cheque,
however, dishonor of cheque is, by itself, not an offence under section 138 of
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N.I. Act. To became an offence, the following ingredients have to be fulfilled.

They are:

 Cheque is issued by drawer

 The payee/holder presents it for payment

 The collecting bank informs payee / holder about dishonor of cheque

 The payee or the holder in due course of a cheque should have given
notice demanding payment within 30 days from the drawer in respect of
information of dishonor of cheque from the bank

 Notice can be served by ordinary post or even telegram.

 The drawee is liable only if he fails to make payment within 15 days of

such notice period.

 The payee or holder in due course of the cheque dishonored should

have made a complaint within one month of cause of action arising out
of Section 138.

There is time frame in respect of offence under section 138 of

Negotiable Instrument Act:-

Section 138 proviso (a): the cheque has to be presented to the bank
within a period of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier.

The Reserve Bank of India vide Notification [Link] BC

No.47/14.01.001/2011-12 has made the period of validity of a cheque to be
three months. Hence as of now, the cheque has to be presented within three
months from the date on which it was drawn.

Section 138 proviso (b): the payee or holder in due course of a cheque
has to make a demand for payment of the amount due by giving a notice in
writing to the drawer of the cheque within 30 days of receipt of information by
him from the bank regarding the dishonor of the cheque.
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Section 138 proviso (c): the drawer of cheque has to fail to make the
payment of the amount to the payee or holder in due course within 15 days of
the receipt of said notice.

Section 142: the complaint has to be filed within one month on the date
on which the cause of action arises under clause (c) of the Proviso to Section
138 of N.I Act.

In view of decision Saketh India Ltd., vs Indian Securities Ltd.,

reported in (1999) 3 SCC Page 1, “it was held by the Hon’ble Supreme
Court that ordinarily in computing time, the rule observed is to exclude the first
day and to include the last, and the period of one month will be reckoned from
the day immediately following the day on which the period of 15 days from the
date of receipt of notice by the drawer expires. The 15th day is to be excluded
for counting the period of one month. The month employed in the Act has not
been defined anywhere in the N.I. Act and the same means a British Calender
Month and not lunar month, by following the definition given in Sec.3 (35) of
the General Clauses Act meaning thereby that a month means only a period
of 30 days.”

Further in view of decision Indra [Link] vs Reliance Industries

Ltd., reported in AIR 2013 SC 426, wherein the Hon’ble court held that “ For
computing the period of limitation, one has to consider the date of filing of the
complaint or initiation of criminal proceedings and not the date of taking
cognizance by the Magistrate.

Presumptions:-

There is presumptions under Section 118 and 139 of the Negotiable

Instruments Act in favour of holder of the cheque. Until contrary is proved,
presumption is in favour of holder of cheque that it has been drawn for
discharge of debt or liabilities. However, it is rebutable one and accused can
rebut it without entering into witness box, through cross examination of the
prosecution witnesses. Complainant is not absolved from liability to show that
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cheque was issued for legally enforceable debt or liability. Burden on accused
in such case would not be as light as it is in the cases under sec.114 of the
Evidence Act.

In case of “ Goa Plast Pvt. Ltd. vs. Shri ChicoUrsula D' Souza 1996
(4) All MR 40” wherein the Honurable court held that “relations between
accused and complainant were of employee and employer. No evidence led to
show that accused was liable to pay any due or part thereof and thus liability
was not proved. Similarly, it was not proved that the cheque was given
towards those liabilities. Accused much prior to presentation of cheques to the
Bank had appraised the complainant that he was not liable to pay any amount,
and therefore, stopped payment. Bombay High Court had observed that
complainant failed to prove that cheque was issued for discharge of legal
liabilities.

Section 139 of the Act merely raises a presumption in regard to the

second aspect of the matter. Existence of legally recoverable debt is not a
matter of presumption under Section 139. It merely raises a presumption in
favour of holder of the cheque that the same has been issued for discharge of
any debt or other liability.

The cheque must have been drawn for discharge of existing debt or liability.

 Legally recoverable debt:

In view of decision Somnath vs. Mukesh Kumar, 2015(4) Law Herald

3629 (P&H) it was held by Hon'ble High Court the complaint under Section
138 is not maintainable when the cheque in question had been issued qua a
time barred debt.

Similarly, supari money for commission of crime is not legally

recoverable debt and complaint under Section 138 is not maintainable in such
a case.
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In view of decision A. Yesubabu vs D. Appala Swamy And Anr. on

29 August, 2003, wherein the Hon’ble court held that “ 21. A perusal of above
provision makes clear that a fresh period of limitation shall be computed from
the time when the acknowledgement was so signed. Even assuming for a
moment that the accused gave the cheque in the year 1990 i.e. on 02.4.1990
acknowledging the previous debt, even that acknowledgement of debt is also
time-barred on the facts of the case inasmuch as the cheque in question was
issued 3 years later, i.e., on 25.8.1994. Therefore, the complainant cannot
legally enforce the liability under Ex. P1 and Ex. P2 receipts. Therefore, the
findings of both the Courts below that the complainant has proved his case
against the accused for the offence under Section 138 of the Negotiable
Instruments Act cannot be sustained and the conviction and sentence
recorded against the appellant-accused has to be set aside.”

- Complainant has to show to the Court that he had capacity to lend huge
amount to the accused.

In view of decision Basalingappa vs Mudibasappa on 9 April, 2019

where in the Honourable court held that” 29. High Court without discarding the
evidence, which was led by defence could not have held that finding of trial
court regarding financial capacity of the complainant is perverse. We are,
thus, satisfied that accused has raised a probable defence and the findings of
the trial court that complainant failed to prove his financial capacity are based
on evidence led by the defence. The observations of the High Court that
findings of the trial court are perverse are unsustainable. We, thus, are of the
view that judgment of the High Court is unsustainable.”

Section 142 as amended by the amendment Act of 2015:

1) Where Cheque is delivered for collection through an account- where
payee maintains the account.

2) Where cheque is presented for payment by the payee otherwise

through an account- where drawer maintains the account.
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 NOTICE:-

Notice must be in writing informing the cheque has been returned

unpaid also a demand of cheque amount must be made and it should be
within 30 days from receipt of information of dishonor.

On the issue of deemed service, the Hon’ble Supreme Court has in

C.C. Alavi Haji v. Palapetty Muhammad & Anr reported in (2007) 6 SCC 555
held as follows. :"According to Section 114 of the (Evidence) Act, read with
illustration (f) thereunder, when it appears to the Court that the common
course of business renders it probable that a thing would happen, the Court
may draw presumption that the thing would have happened, unless there are
circumstances in a particular case to show that the common course of
business was not followed. Thus, Section 114 enables the Court to presume
the existence of any fact which it thinks likely to have happened, regard being
had to the common course of natural events, human conduct and public and
private business in their relation to the facts of the particular case.
Consequently, the court can presume that the common course of business
has been followed in particular cases. When applied to communications sent
by post, Section 114 enables the Court to presume that in the common course
of natural events, the communication would have been delivered at the
address of the addressee. But the presumption that is raised under Section 27
of the General Clause Act 1897 Act, is a far stronger presumption. Further,
while Section 114 of Evidence Act refers to a general presumption, Section 27
refers to a specific presumption. For the sake of ready reference, Section 27
of G.C. Act is extracted below:

Meaning of service by post - Where any Central Act or Regulation made

after the commencement of this Act authorizes or requires any document to
be served by post, whether the expression served by post, whether the
expression serve or either of the expressions give or send or any other
expression is used, then, unless a different intention appears, the service shall
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be deemed to be effected by properly addressing, pre-paying and posting by

registered post, a letter containing the document, and, unless the contrary is
proved, to have been effected at the time at which the letter would be
delivered in the ordinary course of post. Section 27 gives rise to a
presumption that service of notice has been effected when it is sent to the
correct address by registered post. In view of the said presumption, when
stating that the notice has been sent by registered post to the address of the
drawer, it is unnecessary to further aver in the complaint that in spite of the
return of the notice unserved, it is deemed to have been served or that the
addressee is deemed to have knowledge of the notice. Unless and until the
contrary is proved by the addressee, service of notice is deemed to have been
effected at the time at which the letter would have been delivered in the
ordinary course of business."

In C.C. Alavi Haji (supra), the Hon’ble Supreme Court further held that a
person who does not pay within 15 (fifteen) days of receipt of the summons
along with the copy of the complaint under section 138 of the N.I. Act, cannot
obviously contend that there was no proper service of notice as required
under section 138 of the Act.

 Who can file the complaint:-

The cases under the N.I. Act have a distinction from other criminal
cases in the fact that locus standi to prosecute is an essential requirement for
the trial. Payee or holder in due course is a competent person to file
complaint. Complaint must be by corporal person capable of making physical
appearance in court. In case of company and firm natural person should
represent it. Complaint can be filed by Power of Attorney Holder.

A complaint under Section 138 of the Act can be filed only by the payee
of the dishonoured cheque or by the Holder in due course as mandated by
Section 142 of the Act. However, this requirement has been qualified with an
addendum.
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The complaint under Section 138 of the Act can be filed by the payee
through his power of attorney holder/duly authorized representative as held in
Sankar Finance and Investment v. State of A.P. & Others reported in (2008) 8
SCC 536. When the payee is a natural person, he can himself file the
complaint or can do the same through his authorized representative in whose
favour he has given the power of attorney or authority letter. But when the
payee or the holder in due course, as the case may be, is an artificial or
juristic person, such as a partnership firm, body corporate or a company
constituted under the Companies Act, the question may arise as to who would
file the complaint, in as much as, the firm or the company being a juristic
person is not capable of coming to the court. Therefore, whenever a complaint
is filed by a firm or company or a juristic person, it must be represented by a
natural person who would be the defacto complainant for the purpose of the
trial.

Where the payee is a proprietary concern :

The complaint can be filed by

i. the proprietor of the proprietary concern, describing himself as the sole

proprietor of the "payee"

ii. the proprietary concern describing itself as a sole proprietary concern,

represented by its sole proprietor; and

iii. the proprietor or the proprietary concern represented by the attorney

holder under a power of attorney executed by the sole proprietor."

Where the payee is a partnership firm :

Every partner is an agent of the firm and his other partners for the
purpose of business of the firm and the acts of every partner bind the firm and
his partners, unless, of course, the partner had, in fact no authority to act for
the firm and his other partners.
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Thus, any of the active partners can institute a complaint under section
138, N.I. Act on behalf of the partnership firm. The partnership firm can also
authorize a Power of Attorney holder to prosecute a complaint on its behalf.
The question of launching a valid criminal prosecution under section 138 of
N.I. Act with the aid of power of attorney is no more res integra in view of the
authoritative judgment of the Hon’ble Supreme Court in A.C. Narayanan v.
State of Maharashtra and Another reported in AIR 2014 SC 630. However, a
question may arise as to whether a single partner can grant Power of Attorney
to a representative to file a complaint. Sections 9, 12(a), 12(b), 18 and 19 of
the Partnership Act, 1932 clearly empowers a single partner can also file a
complaint on behalf of the firm or he may authorize a Power of Attorney holder
to do so on behalf of the firm and it would not be necessary that all the
partners would have to sign the Power of Attorney.

Whether a partner of an unregistered firm can file a complaint

U/sec.138 of N.I. Act?

The said issue came before Hon’ble High Court of Telangana and State
of Andhra Pradesh in “ M/s Sri Sai Karuna Finance and Enterprises
represented by its Manager Vs. N. Sandhya Rani and another
([Link].452/2006, dated 24.10.2018) Whereas the Hon’ble High Court
held that “ the Negotiable Instruments Acts specifically laid down that the debt
or other liability means Legally enforceable of Legal liability has to be in the
nature of Civil Suit because the debt or other liability cannot be recovered by
filing a criminal case and when there is a bar of filing a suit by unregistered
firm, the bar equally applies to criminal case as laid down in explanation to of
138 NI Act.”

Where the Payee is a Company :

When the payee or holder in due course happens to be a company,

then the question arises as to who may file the complaint. The Hon’ble Apex
Court been held in” Dale & Carrington Investment (P) Ltd. and Another v.
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P.K. Prathapan and Others” reported in (2005) 1 SCC 212, that company
being an incorporeal juristic person, acts through its Board of Directors and
the Board of Directors takes decisions on the activities of the company by
adopting resolutions in its meetings as per the memorandum and articles of
the company. It does not require pointing out here that a single director cannot
act on his own on behalf of the company. His actions require ratification from
the Board. The Board of Directors of the complainant company will have to
take a resolution whereby the person who is likely to act as the de facto
complainant would have to be granted a Power of Attorney to do [Link] is
pertinent to mention here that the Power of Attorney as well as the Board
Resolution will have to be adequately proved during the course of the trial or
the complaint will cease to be maintainable.

In view of the decision M/s TRL Krosaki Refactories Ltd., vs SMS

Asia Pvt., Limited and another (2022) 7 SCC 612), wherein the Hon’ble
court held that “when a company is the payee of cheque based on which a
complaint is filed under Section138 of N.I. Act, the complainant necessarily
should be the company which would be represented by an employee who is
authorized. In such a case the primafacie indication in the complaint and
sworn statement of either oral or affidavit, that the complaint is represented by
authorized person who has knowledge would be sufficient.”

Lack of Authorization is a Curable Defect :

The Hon’ble Supreme Court held in M.M.T.C. Ltd. and Another v.

Medchl Chemicals and Pharma (P) Ltd. And Another reported in (2002) 1
SCC 234, the Hon’ble Supreme Court has held that, the only eligibility criteria
prescribed by Section 142 N.I. Act for maintaining a complaint under section
138 is that the complainant must be the payee or the holder in due course.
However, in case of a company, if the de facto complainant did not have
authority in the initial stage, still the company can, at any stage, rectify that
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defect at a subsequent stage, and the company can send a person who is
competent to represent it.

In view of decision Samrat Shipping Co. Pvt. Ltd. v. Dolly George

reported in (2002) 9 SCC 455, the Hon’ble Supreme Court termed the
dismissal of the complaint at the threshold by the Magistrate on the ground
that the individual through whom the complaint was filed had not produced the
resolution of the Board of Directors of the Company authorizing him to
represent the Company before the Magistrate to be not justified and termed
this exercise to be "too hasty an action". A three Judge Bench of the Hon’ble
Supreme Court in M/S Haryana State [Link]. Supply and Marketing
Federation Ltd. v. M/S Jayam Textiles and Another reported in AIR 2014 SC
1926 held that the dismissal of the complaint for mere failure to produce
authorization would not be proper and an opportunity ought to be granted to
produce and prove the authorization.

When Can the Functions of a Power of Attorney Holder be Further

Delegated?

In view of the decision A.C. Narayanan and Anr. v. State of

Maharashtra and Ors reported in AIR 2014 SC 630, wherein the Hon’ble
court held that “ has made it clear that sub delegation of functions vis a vis
filing of a complaint is only permissible when the same is duly and explicitly
mentioned in the authority granted to the delegator.

Power of Attorney Holder Must Have Personal Knowledge of the Transaction

In view of decision A.C. Narayanan and Anr. v. State of Maharashtra

and Ors reported in AIR 2014 SC 630 has further made it clear that while it
is permissible for the Power of Attorney holder or for the legal
representative(s) to file a complaint and/or continue with the pending criminal
complaint for and on behalf of payee or holder in due course, however, it is
expected that such Power of Attorney holder or legal representative(s) should
have knowledge about the transaction in question so as to able to bring on
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record the truth of the grievance/offence. It has been further clarified that there
is no reason as to why the attorney holder cannot depose as a witness.
Nevertheless, an explicit assertion as to the knowledge of the Power of
Attorney holder about the transaction in question must be specified in the
complaint.”

In view of decision Kirshna Texport & Capital Markets Ltd vs Ila A

Agrawal & Ors on 6 May, 2015 wherein the Honourable Supreme court held
that “16. In our view, Section 138 of the Act does not admit of any necessity or
scope for reading into it the requirement that the directors of the Company in
question must also be issued individual notices under Section 138 of the Act.
Such directors who are in charge of affairs of the Company and responsible
for the affairs of the Company would be aware of the receipt of notice by the
Company under Section 138. Therefore neither on literal construction nor on
the touch stone of purposive construction such requirement could or ought to
be read into Section 138 of the Act. Consequently this appeal must succeed.
The order passed by the High Court is set aside. Since the matter was at the
stage of considering application for leave to appeal and the merits of the
matter were not considered by the High Court, we remit the matter to the High
Court for fresh consideration which may be decided as early as possible.
Concluding so, we must record that the decision of the Division Bench of the
Madras High Court in B. Raman & Ors. Vs. M/s. Shasun Chemicals and Drugs
Ltd. (supra) was incorrect and it stands overruled. The appeal is allowed in
these terms.”

- Offence under Section 138 N.I. Act to be tried summarily:-

For offence punishable under Section 138 of Act, the judicial Magistrate Ist
Class shall try the offence summarily and the provisions of section 285 to 288
of B.N.S.S (Sec262 to 265 of Cr.P.C) shall apply.

Section 285 of B.N.S.S (Sec.262 Cr.P.C). provides the procedure provided for
trial of summons case shall be followed.
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Procedure in trial of summons case :

1. On appearance of accused notice of accusation to be served.

2. Evidence of prosecution

3. Section 351 B.N.S.S (Sec. 313 Cr.P.C.)

4. Evidence of defence

5. Judgment of acquittal or conviction- which shall include

(a) Substance of evidence

(b) Brief statement of reasons for the findings

However in case of conviction in a summary trial, the Magistrate can pass a

sentence of imprisonment for a term not exceeding one year and an amount
of fine not exceeding Rs.5000/-.

In view of decision J.V. Bahurani v. State of Gujarat reported in (2014) 10

SCC 494, it has been observed by the Hon’ble Supreme Court as follows:

"Sub-section (1) of Section 143 of the N.I. Act makes it clear that all offences
under Chapter XVII of the N.I. Act shall be tried by the Magistrate 'summarily'
applying, as far as may be, provisions of Sections 262 to 265 of Code of
Criminal Procedure. It further provides that in case of conviction in a summary
trial, the Magistrate may pass a sentence of imprisonment for a term not
exceeding one year and a fine exceeding Rs.5,000/-. Sub-section (1) of
Section 143 of the N.I. Act further provides that during the course of a
summary trial, if the Magistrate is of the opinion that the nature of the case
requires a sentence for a term exceeding one year or for any other reason, it
is undesirable to try the case summarily, he must record the reasons for doing
so and go for a 'regular trial'. Thereafter, the Magistrate can also recall any
witness who has been examined and proceed to hear or rehear the case.

The accused shall not be permitted to file his chief examination

evidence in the form of affidavit in view of the law in CRIMINAL PETITION
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No.1594 of 2020 wherein the Honourable court held that “13. In that view of
the matter, the Petitioner being Accused cannot be permitted to file an affidavit
in lieu of Examination-in-Chief, as the provision under Section 145 (1) only
entails a complainant to tender evidence in such a mode. When the language
of the provision is clear and plain, and provides only for one meaning, it
should be understood that the Act speaks for itself. Accordingly, point is
answered. As such, the present petition is liable to be dismissed.”

 Cause of action:

Cause of action arises when notice is served on the drawer and drawer
fails to make payment of the amount of cheque within 15 days. Limitation to
file complaint is one month from the date of cause of action. However, by
Amendment Act of 2002 court is empowered to take cognizance of the offence
even if complaint is filed beyond one month by condoning the delay if
sufficient cause is shown. It has been held in various other cases that offence
is not made out

1. When cheque returned as defective one (Babulal vs. Khilji 1998 (3) Mh
L.J. 762)

2. When no notice is given to company and cheque is drawn by company

([Link] Rathinalm vs. State of Maharashtra 1999 (1) Mh.L.J. 815)

3. Cheque is given as a gift.

4. Complainant was not a payee.

5. Signature of drawer on the cheque is incomplete. ( Vinod vs. Jahir 2003

(1) Mh L.J. 456.).

 Status of accused:

It is the only drawer of the dishonoured cheque who can be prosecuted

under Section 138 of N.I. Act and no one else.
 19

In view of decision Ashok Shekharamani and Ors vs State of A.P.

and another, [Link] No.897 of 2023 dt.03.08.2023, wherein the Hon’ble
court held that “Section 141 provides for constructive liability. It postulates that
a person, in charge of and responsible to the company, in the context of the
business of the company, shall also be deemed guilty of the offence. The
drawer can be a company, a firm or an association of individuals, but only
those directors, partners, or officers can be held responsible for the offence
punishable under Section 138 of N.I. Act who are responsible for the conduct
of its business.”

 Punishment:-

After amendment of 2002 the imprisonment that may be imposed may

extended to two years, while fine may extended to twice the amount of
cheque. However, the trial is conducted in summary way, then Magistrate can
pass sentence or imprisonment not exceeding one year and amount of fine
exceeding Rs.5000/-. There is no limitation for awarding compensation.

In view of decision Dilip vs Kotak Mahendra Company Ltd., 2008 (1)

Mh.L.J 22, wherein the Hon’ble court held that “the amount of compensation
sought to be imposed must be reasonable and not arbitrary. Before issuing a
direction to pay compensation the capacity of accused to pay the same must
be judged. An enquiry in this behalf even in summary way may be necessary.
Sub section 3 of Section 357 does not impose any limitation but powers
thereunder should be exercised only in appropriated cases. Ordinarily it
should be lesser than the amount which can be granted by the Civil court
upon appreciation of evidence. A criminal case is not a substitution for Civil
suit.

 Discharge of the accused :-

In view of decision Subramanium Sethuraman vs State Of

Maharashtra & Anr on 17 September, 2004 wherein the Honourable Apex
court held that “The next challenge of the learned counsel for the appellant
 20

made to the finding of the High Court that once a plea is recorded in a
summons case it is not open to the accused person to seek a discharge
cannot also be accepted. The case involving a summons case is covered by
Chapter XX of the Code which does not contemplates a stage of discharge
like Section 239 which provides for a discharge in a warrant case. Therefore,
in our opinion the High Court was correct in coming to the conclusion once the
plea of the accused is recorded under Section 252 of the Code the procedure
contemplated under Chapter XX has to be followed which is to take the trial to
its logical conclusion.”

In view of decision Iris computers Ltd .Vs. Askari Infotech Pvt .Ltd
where in the Honourable court held that “ It is true that if a Magistrate takes
cognizance of an offence, issues process without there being any allegation
against the accused or any material implicating the accused or in
contravention of provisions of Sections 200 and 202, the order of the
Magistrate may be vitiated, but then the relief an aggrieved accused can
obtain at that stage is not by invoking Section 203 of the Code because the
Criminal Procedure Code does not contemplate a review of an order. Hence in
the absence of any review power or inherent power with the subordinate
criminal courts, the remedy lies in invoking Section 482 of the Code.”

Cognizance, Limitation, jurisdiction – a study:

Section 142 of the N.I. Act creates bar against taking cognizance of the
offence under Section 138 of the N. I. Act except upon complaint in writing by
payee or holder in due course. Complaint may be instituted by Power of
Attorney Holder. However, if the holder of Power of Attorney has merely
lodged complaint without being aware of the facts, then recording the
statement of payee becomes imperative. Once Magistrate is satisfied that
there is proper compliance of the proviso to Sec.138 N. I. Act and jurisdictional
conditions are fulfilled, Magistrate shall issue the process. Service of
summons by speed post or approved courier is recognized by Sec. 144 of N.
 21

I. Act. If accused does not appear in response to summons or remains absent

subsequent, a coercive process needs to be taken by the court. Section 145
(1) of the Act permits the recording of evidence of complainant on affidavit.
Even evidence of accused and witnesses can be recorded on affidavit. This
was for expedite disposal of the cases. Bank slips are held as a primary
evidence and admissible directly. Accused are given effective opportunity to
defend the case. Considering presumptions under Sec.118 and 139 of the N.I.
Act effective opportunity is to be given to accused to cross examine the
witnesses. It is common experience that in cases under Section 138 of N.I.
Act evidence is recorded by one Judicial Officer and before delivery of
Judgment he is transferred, in such situation the successor has to proceed
with denovo trial. Though the provision contained in Sec.143 of the N. I. Act
provides that cases under Section 138 are to be tried in summary way, they
should be tried as a regular summons cases. If it appears to the Magistrate
that nature of case is such that sentence of imprisonment for a term
exceeding one year may have to be passed, or that it is for any other reasons
undesirable to try the case summarily, Magistrate shall after hearing the
parties record and order to that effect and try the case as a regular summons
case.

Before recording sworn statements of the complainants and his

witnesses the Magistrate should take cognizance of offence.

Once cognizance is taken rightly or wrongly, the remedy that is

available is only by challenging the same either before the Sessions court or
before Hon’ble High court. When there is delay in filing the complaint, delay
condonation application and after deciding delay condonation application
cognizance has to be taken.

In view of decision P.K. Chowdary vs Commander, 48 BRTF (GREF)

wherein the Honourable court held that “A Court of law cannot take
cognizance of an offence, if it is barred by limitation. Delay in filing a complaint
 22

petition therefore has to be condoned. If the delay is not condoned, the court
will have no jurisdiction to take cognizance. Similarly unless it is held that a
sanction was not required to be obtained, the court's jurisdiction will be
barred.”

The Magistrate Courts shall invariably register the cases under Section
138 of Negotiable Instruments Act initially as Summary Trial Cases . If all the
above are duly complied, the Magistrates shall take cognizance of the offence
on the date of filing itself without any delay and shall invariably register the
case. All the Magistrate Courts trying the cases under Section 138 of
Negotiable Instruments Act shall invariably follow the directions of the Hon'ble
Supreme Court in Indian Banks Association Vs. Union of India, (2014) 5 SCC
590 as appended to this Practice Guidelines vide 'Annexure-A'.

In the decision of Indian Bank Association and others vs Union of

India and others, reported in AIR 2014 Supreme Court 25 28, general
directions have been given by the Hon’ble Apex Court that “ 21. Many of the
directions given by the various High Courts, in our view, are worthy of
emulation by the Criminal Courts all over the country dealing with cases under
Section 138 of the Negotiable Instruments Act, for which the following
directions are being given:-

DIRECTIONS:
1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the
complaint under Section 138 of the Act is presented, shall scrutinize the
complaint and, if the complaint is accompanied by the affidavit, and the
affidavit and the documents, if any, are found to be in order, take cognizance
and direct issuance of summons.

2) MM/JM should adopt a pragmatic and realistic approach while issuing

summons. Summons must be properly addressed and sent by post as well as
by e-mail address got from the complainant. Court, in appropriate cases, may
take the assistance of the police or the nearby Court to serve notice to the
 23

accused. For notice of appearance, a short date be fixed. If the summons is

received back un-served, immediate follow up action be taken.

3) Court may indicate in the summon that if the accused makes an application
for compounding of offences at the first hearing of the case and, if such an
application is made, Court may pass appropriate orders at the earliest.

4) Court should direct the accused, when he appears to furnish a bail bond, to
ensure his appearance during trial and ask him to take notice under Section
251 Cr.P.C. to enable him to enter his plea of defence and fix the case for
defence evidence, unless an application is made by the accused under
Section 145(2) for re- calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-chief, cross-

examination and re-examination of the complainant must be conducted within
three months of assigning the case. The Court has option of accepting
affidavits of the witnesses, instead of examining them in Court. Witnesses to
the complaint and accused must be available for cross-examination as and
when there is direction to this effect by the Court.

22. We, therefore, direct all the Criminal Courts in the country dealing with
Section 138 cases to follow the above-mentioned procedures for speedy and
expeditious disposal of cases falling under Section 138 of the Negotiable
Instruments Act.”

Jurisdiction

Considering the ingredients of Section 138 of N.I. Act referred in the

decision [Link] vs Shankaran reported in 1999 SC 3762, the Hon’ble
Court had given jurisdiction to initiate the prosecution at any one of the
following places.

1. Where the cheque is drawn

2. Where payment had to be made

 24

3. Where cheque is presented for payment

4. Where cheque is dishonored

5. Where notice is served upto drawer.

However recently in case of Roopsingh Rathod vs State of Maharastra,

the Hon’ble Appex court has addressed the issue of territorial jurisdiction of
the courts trying offences under Section 138 of N.I. Act.

However, to increase the credibility of cheques as financial instruments

and to clarify the issue of jurisdiction, the Parliament has enacted the
Negotiable instruments (Amended Act) 2015. The amended Act of 2015,
amended Section 142 to decisively play down the territorial jurisdiction of the
courts deciding the cases under Section 138 of N.I. Act.

The amendment made in Section 142 (2) of N.I. Act reads as follows:

(2)The offence under section 138 shall be inquired into and tried only by
a court within whose local jurisdiction,—

(a)if the cheque is delivered for collection through an account, the

branch of the bank where the payee or holder in due course, as the
case may be, maintains the account, is situated; or

(b)if the cheque is presented for payment by the payee or holder in due
course, otherwise through an account, the branch of the drawee bank
where the drawer maintains the account, is situated.

Explanation.— For the purposes of clause (a), where a cheque is

delivered for collection at any branch of the bank of the payee or holder
in due course, then, the cheque shall be deemed to have been
delivered to the branch of the bank in which the payee or holder in due
course, as the case may be, maintains the account.

The offence under section 138 of N.I. Act is the result of series of Acts.
The place of issuance of cheque, place of dishonor, place of receipt of notice,
 25

place wherein the complainant and accused resides. In view of amendment

under Section 142 of Negotiable Instrument Act, jurisdiction lies to the court
wherein the complainant bank situated.

In view of decision Nishant Agarwal vs Kilash Kumar Sharma

reported in 2013 (9) JT 188, wherein the Hon’ble court held that “ 16. Thus it
is clear, if the five different acts were done in five different localities any one of
the courts exercising jurisdiction in one of the five local areas can become the
place of trial for the offence under Section 138 of the Act. In other words, the
complainant can choose any one of those courts having jurisdiction over any
one of the local areas within the territorial limits of which any one of those five
acts was done. As the amplitude stands so widened and so expansive it is an
idle exercise to raise jurisdictional question regarding the offence under
Section 138 of the Act.”

The court which has no jurisdiction has to return the complaint for
proper presentation before jurisdictional court instead of dismissing the
complaint.

Limitation

The period of limitation has to be counted from the date of receipt by the
payee of the information from the bank. The cause of action arises on the 16 th
day of receipt of demand notice by the drawer and complaint should be filed
within one month from that date. Section 142 of N.I. Act has prescribed an
outer limit of one month for filing of a complaint from the date the cause of
action arises.

In view of decision Saketh India Ltd., vs Indian Securities Ltd., 1999

(3) SCC 1, wherein the Hon’ble Supreme court held that “ordinarily in
computing time, the rule observed is to exclude the first day and to include
the last, and the period of one month will be reckoned from the day
immediately following the day on which the period of 15 days from the date of
receipt of notice by the drawer expires. The 15 th day is to be excluded for
 26

counting period of one month, the month employed in the Act has not been
defined anywhere in the N.I. Act and the same means a British calendar
month and not lunar month, by following the definition given in Section 3 (35)
of General Clauses Act meaning thereby that a month means only a period of
30 days.

In view of decision Econ Antri Ltd., vs Rom Industries Ltd., AIR 2013
SC 3283, wherein the Hon’ble Supreme court affirmed the judgment in Saketh
India Ltd., (Supra) by holding that for the purpose of calculating the period of
one month which is prescribed under section 142 (b) of N.I. Act, the period
has to be reckoned by excluding the date on which the cause of action arose.

As per Section 142 (1) (b) proviso, the cognizance of a complaint may
be taken by the court after the prescribed period, if the complainant satisfies
the court that he had sufficient cause for not making a complaint within such
period.

Interim compensation and its recovery.

The court can make use Section 395 of B.N.S.S (Sec.357 (3) of
Cr.P.C) and award compensation and also can impose sentence if the
accused failed to payup the compensation so awarded.

In all the cases where the accused is found guilty of the offence under
Section 138 of Negotiable Instruments Act, the Court shall consider awarding
the compensation to the complainant party in view of the provisions under
138, 143 of Negotiable Instruments Act and Section 395 of B.N.S.S (Sec. 357
Cr.P.C.) The Court must exercise the power and discretion to compensate the
injury suffered by the complainant (vide Hari Kishan Vs. Sukhbir Singh, (1988)
4 SCC 551). The Court shall also keep in mind the decisions of the Hon'ble
Apex Court in this regard rendered in [Link] Vs Baby, AIR 2012 SC 528
and Suganthi Suresh Kumar Vs. Jagdeeshan , (2002) 2 SCC 420. The Court
may consider granting of installments or time to pay such compensation
amount. The Court may also consider to impose in default sentence on the
 27

accused in case of failure to pay the compensation. (vide [Link] Vs Sabu

Joseph (2010) 6 (2012) 8 SCC 230 and [Link] Vs. [Link] Kumar, SCC
721.)

In view of decision H. Pukhraj vs D. Parasmal on 6 August, 2014

where in the Honourable Apex court held that “6. Again, in R. Vijayan vs. Baby
& Anr.2 this Court considered the same question. This Court also examined
the need to award compensation to the complainant. This Court was of the
opinion that the traditional view that the criminal proceedings are for imposing
punishment on the accused, either punishment or fine or both, and there is no
need to compensate the complainant, particularly if the complainant is not a
victim in the real sense, but is a well-to-do financier or financing institution,
gives rise to difficulties and complications. This Court further observed that in
those cases where the discretion to direct payment of compensation is not
exercised, it causes considerable difficulty to the complainant, as invariably,
by the time the criminal case is decided, the limitation for filing civil cases
would have expired. This Court further observed that as the provisions of
Chapter XVII of the NI Act strongly lean towards grant of reimbursement of the
loss by way of compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise the power to levy
fine upto twice the cheque amount keeping in view the cheque amount and
the simple interest thereon at nine per cent per annum as the reasonable
quantum of loss and direct payment of such amount as compensation. This 2
(2012) 1 SCC 260 Court further observed that the direction to pay
compensation by way of restitution in regard to the loss on account of
dishonour of the cheque should be practical and realistic which would mean
not only the payment of the cheque amount but interest thereon at a
reasonable rate.”

Section 143-A: In all trials under Sec.138 of Negotiable Instruments Act,

when the accused is claiming for a regular trial, the Court may order to direct
 28

the accused to pay the interim compensation to the complainant which shall
not exceed 20% of the amount of cheque (Section 143-A). Such interim
compensation shall be paid within 60 days from the date of order and the
Court is competent to extend that time for further 30 days. In case of acquittal,
the Court shall direct the complainant to repay the interim compensation
amount with the bank interest rate to the accused within 60 days from the date
of judgment and this time can also be extended for further 30 days. Interim
compensation may be recovered as if it were a fine under Section 461 of
B.N.S.S, 2023 (Sec.421 Cr.P.C). This interim compensation amount shall be
adjusted against the final compensation ordered by the Court under Section
395 of B.N.S.S, 2023 (Sec.357 Cr.P.C) at the time of judgment.

Section 143-A empowers the trial court to order the drawer of the
cheque to pay interim compensation not exceeding 20% of the cheque
amount to the complainant.

The plea of interim compensation can be made only after the accused
has pleaded not guilty, not before that stage.

The complainant claim interim compensation when the cause of action

arises after 01.09.2018.

In view of decision G. J Raja Vs Tejraj Surana, reported in (2019) 19

SCC 469, Hon’ble Apex Court has held that “Sec. 143A of the Act is
prospective and confined to cases where offences were committed after the
introduction of sec. 143A , that is the cases wherein the cause of action arises
after 01.09.2018.”

In view of decision V Krishnamurthy Vs Diary Classic Ice Creams

Pvt Ltd, reported in 2022 SCC Online Kar 1047, it was held that the conduct
of the accused is relevant consideration while deciding the application for
interim compensation. The discretion to be exercised by the magistrate is two
fold, firstly whether the accused co-operates with the Court for early disposal
 29

of the case, secondly the percentage of compensation (for which cheque

amount is the criteria) Etc,. It is not mandatory to award interim compensation
in every case.”

• Where the remedy lies for the complainant if the accused failed to pay
the compensation? •
In view of decision Noor Mohammad Vs. Khurram Pasha , [Link]
No. of 2022 , dt 2.08.2022)(SC), wherein the Hon’ble court held that “In case,
the accused failed to pay interim compensation, Sub section 5 of section 143A
states that the interim compensation payable under this section can be
recovered as if it were a fine u/Section 461 B.N.S.S (sec. 421 of Cr.P.C) , so
the accused cannot be fastened with any other disability including denial of
right to cross examine the witnesses examined on behalf of the complainant.”

Section 148 - Power of Appellate court to grant interim compensation.

The above provision is analogous to Section 143 (a) of the Act. The amount
deposited can be released to the complainant with condition to refund it back
with interest, pending appeal.

Section 138 of Act can be imposed only in terms of provisions of the

Act, when fine is not imposed, compensation can be paid for loss or injury
caused to the complainant by reason of commission of such offence. The fine
can be recovered under Section 461 B.N.S.S (Sec.421 of Cr.P.C), Section
471 B.N.S.S (Section 431 of Cr.P.C) provides for legal fiction in terms whereof
any money other than a fine shall be recovered as if it were a fine. Section
357 (2) would be attracted in such situation. There does not appear to be any
reason as to why the amount of compensation should be held to be
automatically payable, although the same is only to be recovered as if a fine
has been imposed.

Compounding of offence – Execution of Lok-Adalath Award:

Section 147 of the Act, enables the parties to compound all the offences
made punishable under the Act. Award passed by Lok-Adalath can be
 30

executed before a Civil court as if it was passed by a Civil Court. In case of

settlement of the case in any of these two modes, the award shall be drawn.
In case of settlement before Lok Adalat, the parties shall be informed about
the mode of execution of the award as per the Legal Services Authorities Act,
1987 by way of filing Execution Application, while treating that award as a
decree.

In view of decision [Link] Kutty Menon Vs. C.D. Shaji , it is

observed by the Hon’ble Appex court that “in view of language used in Section
21 of the Legal Service Authority Act, every award of the Lok adalat shall be
deemed to be a decree of civil court and as such it is executable by that
court.”

In view of decision Arun Kumar Vs. Anitha Mishra and others, Crl
Appeal No. 1580 / 2019 dt 18.10.2019 , wherein the Hon’ble court held that
complaint U/Sec.138 [Link] is maintainable against dishonour of cheque
issued pursuant to lok adalat award.”

Further in view of decision Sri Somasekhar Reddy vs Smt. G.S.

Geetha in [Link].23519/2018, Hon’ble court held that “ depending on the
terms of compromise arrived at before Lok-Adalath it can be enforced as a
Civil decree or in terms applicable provisions of Cr.P.C including that under
Section 431 of Cr.P.C, if so provided in the compromise. In the event of
default of a compromise arrived at before the Lok-Adalath, this court or trial
court can on an application made by the complainant set-aside the
compromise arrived at before the Lok-Adalath, restore the complaint on its file
and proceed with the complaint or enforce the compromise as per the terms of
compromise including by issuing of an FLW under Section 431 of the Cr.P.C.”

On the date of first appearance of the accused or on the date to which

the appearance of the accused is scheduled, the Magistrate Court shall
furnish the copies of complaint and documents to the Accused, enquire about
his capacity to engage counsel (or appoint a legal aid counsel for the accused
 31

having no capacity to engage counsel) and then shall inform him about the
guidelines in Damodar [Link] Vs. Sayed Babalal H., (2010) 5 SCC 663
Wherein the honourable Supreme court held that “An application for
compounding made after several years not only results in the system being
burdened but the complainant is also deprived of effective justice. In view of
this submission, we direct that the following guidelines be followed:-

THE GUIDELINES

(i) In the circumstances, it is proposed as follows:

(a) That directions can be given that the Writ of Summons be suitably modified
making it clear to the accused that he could make an application for
compounding of the offences at the first or second hearing of the case and
that if such an application is made, compounding may be allowed by the court
without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as

aforesaid, then if an application for compounding is made before the
Magistrate at a subsequent stage, compounding can be allowed subject to the
condition that the accused will be required to pay 10% of the cheque amount
to be deposited as a condition for compounding with the Legal Services
Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions
Court or a High Court in revision or appeal, such compounding may be
allowed on the condition that the accused pays 15% of the cheque amount by
way of costs.

(d) Finally, if the application for compounding is made before the Supreme
Court, the figure would increase to 20% of the cheque amount.

Let it also be clarified that any costs imposed in accordance with these
guidelines should be deposited with the Legal Services Authority operating at
the level of the Court before which compounding takes place.

In view of decision Madhya Pradesh State Legal Services Authority

Vs. Prateek Jain, (2014) 10 SCC 690, Wherein the honourable Supreme
 32

court held that “17. We are also conscious of the view that the judicial
endorsement of the above quoted guidelines could be seen as an act of
judicial law-making and therefore an intrusion into the legislative domain. It
must be kept in mind that Section 147 of the Act does not carry any guidance
on how to proceed with the compounding of offences under the Act. We have
already explained that the scheme contemplated under Section 320 the CrPC
cannot be followed in the strict sense. In view of the legislative vacuum, we
see no hurdle to the endorsement of some suggestions which have been
designed to discourage litigants from unduly delaying the composition of the
offence in cases involving Section 138 of the Act. The graded scheme for
imposing costs is a means to encourage compounding at an early stage of
litigation. In the status quo, valuable time of the Court is spent on the trial of
these cases and the parties are not liable to pay any Court fee since the
proceedings are governed by the Code of Criminal Procedure, even though
the impact of the offence is largely confined to the private parties. Even
though the imposition of costs by the competent court is a matter of discretion,
the scale of costs has been suggested in the interest of uniformity. The
competent Court can of course reduce the costs with regard to the specific
facts and circumstances of a case, while recording reasons in writing for such
variance. Bonafide litigants should of course contest the proceedings to their
logical end. Even in the past, this Court has used its power to do complete
justice under Article 142 of the Constitution to frame guidelines in relation to
subject-matter where there was a legislative vacuum.” It is clear from the
reading of the aforesaid para that the Court made it clear that framing of the
said guidelines did not amount to judicial legislation. In the opinion of the
Court, since Section 147 of the Act did not carry any guidance on how to
proceed with compounding of the offences under the Act and Section 320 of
the Code of Criminal Procedure, 1973 could not be followed in strict sense in
respect of offences pertaining to Section 138 of the Act, there was a legislative
 33

vacuum which prompted the Court to frame those guidelines to achieve the
following objectives:

(i) to discourage litigants from unduly delaying the composition of

offences in cases involving Section 138 of the Act;

(ii) it would result in encouraging compounding at an early stage of

litigation saving valuable time of the Court which is spent on the trial of
such cases; and

(iii) even though imposition of costs by the competent Court is a matter of

discretion, the scale of cost had been suggested to attain uniformity.

At the same time, the Court also made it abundantly clear that the concerned
Court would be at liberty to reduce the costs with regard to specific facts and
circumstances of a case, while recording reasons in writing for such variance.”
The honourable Supreme court further held that “Therefore, in those matters
where the case has to be decided/settled in the Lok Adalat, if the Court finds
that it is a result of positive attitude of the parties, in such appropriate cases,
the Court can always reduce the costs by imposing minimal costs or even
waive the same. For that, it would be for the parties, particularly the accused
person, to make out a plausible case for the waiver/reduction of costs and to
convince the concerned Court about the same. This course of action,
according to us, would strike a balance between the two competing but
equally important interests, namely, achieving the objectives delineated in
Damodar S. Prabhu (supra) on the one hand and the public interest which is
sought to be achieved by encouraging settlements/resolution of case through
Lok Adalats.”

If the Court is satisfied that there is an element of settlement of the

case, then it shall refer the case to Lok-Adalat or Mediation in accordance with
the scheme prepared by NALSA.

In case of not settling the issue before the Lok Adalat or the Mediation,
the case shall be posted for framing notice or the examination of the accused
 34

under Section 274 of B.N.S.S (Sec 251 of Cr.P.C) about the accusation level
against him. In case of denial of the accusation, the accused shall be called
upon to file a defence statement in writing with supporting reasons. Then the
Court shall consider the scope of calling the complainant for further chief
examination for making documents and for cross examination on behalf of the
accused.

Once the matter is compromised, then it must end in acquittal of the

accused. There is no question of granting installments and acquitting the
accused. The offence under Section 138 of the Act is preliminarily a Civil
wrong. Burden of proof is on the accused in view of presumption under
Section 139 but standard of such proof is preponderance of probabilities. The
same has to be normally tried summarily as per the provisions of summery
trial under Cr.P.C. But with such variations as may be appropriate to proceed
under chapter 22 of the Act. Principal of Section 281 of B.N.S.S (Sec.258
Cr.P.C) will apply and court can close the proceedings and discharge the
accused on satisfaction that the cheque amount with assessed costs and
interest is paid and if there is no reason to proceed with the punitive aspect.
The object of the provision being preliminarily compensatory, punitive element
being mainly with the object of enforcing the compensatory element,
compounding at the initial stage has to be encouraged but is not debarred at
later stage subjected to appropriate compensation as may be found
acceptable to the parties or the court. Though compounding requires consent
of both parties, even in absence of such consent, the court, in the interest of
justice, on being satisfied that the complainant has been duly compensated,
can in its discretion close the proceedings and discharge the accused.

In view of decision Meters and instruments Pvt., Ltd., and another vs

Kanchan Mehta reported in (2018) 1 SCC 560, wherein the Hon’ble court
held that “ 18. From the above discussion following aspects emerge:
 35

i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of
proof is on accused in view presumption under Section 139 but the standard
of such proof is “preponderance of probabilities”. The same has to be normally
tried summarily as per provisions of summary trial under the Cr.P.C. but with
such variation as may be appropriate to proceedings under Chapter XVII of
the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court
can close the proceedings and discharge the accused on satisfaction that the
cheque amount with assessed costs and interest is paid and if there is no
reason to proceed with the punitive aspect.

ii) The object of the provision being primarily compensatory, punitive element
being mainly with the object of enforcing the compensatory element,
compounding at the initial stage has to be encouraged but is not debarred at
later stage subject to appropriate compensation as may be found acceptable
to the parties or the Court.
iii) Though compounding requires consent of both parties, even in absence of
such consent, the Court, in the interests of justice, on being satisfied that the
complainant has been duly compensated, can in its discretion close the
proceedings and discharge the accused.
iv) Procedure for trial of cases under Chapter XVII of the Act has normally to
be summary. The discretion of the Magistrate under second proviso to Section
143, to hold that it was undesirable to try the case summarily as sentence of
more than one year may have to be passed, is to be exercised after
considering the further fact that apart from the sentence of imprisonment, the
Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable
compensation with default sentence under Section 64 IPC and with further
powers of recovery under Section 431 Cr.P.C. With this approach, prison
sentence of more than one year may not be required in all cases.
v) Since evidence of the complaint can be given on affidavit, subject to the
Court summoning the person giving affidavit and examining him and the
bank’s slip being prima-facie evidence of the dishonor of cheque, it is
unnecessary for the Magistrate to record any further preliminary evidence.
Such affidavit evidence can be read as evidence at all stages of trial or other
proceedings. The manner of examination of the person giving affidavit can be
as per Section 264 Cr.P.C. The scheme is to follow summary procedure
except where exercise of power under second proviso to Section 143
becomes necessary, where sentence of one year may have to be awarded
and compensation under Section 357(3) is considered inadequate, having
 36

regard to the amount of the cheque, the financial capacity and the conduct of
the accused or any other circumstances.
19. In view of the above, we hold that where the cheque amount with interest
and cost as assessed by the Court is paid by a specified date, the Court is
entitled to close the proceedings in exercise of its powers under Section 143
of the Act read with Section 258 Cr.P.C. As already observed, normal rule for
trial of cases under Chapter XVII of the Act is to follow the summary
procedure and summons trial procedure can be followed where sentence
exceeding one year may be necessary taking into account the fact that
compensation under Section 357(3) Cr.P.C. with sentence of less than one
year will not be adequate, having regard to the amount of cheque, conduct of
the accused and other circumstances.”
Section 138 Negotiable Instruments Act, the Section 281 of B.N.S.S
(Sec 258 of the Cr.P.C) is not applicable to the complaints under Section 138
of the N.I. Act. As far as closing of case under Section 281 of B.N.S.S (Sec.
258) is concerned, the view taken in Meters and instruments case has been
overruled in the case of Expeditious Trial of cases under Sec.138 NI Act.

Suo Moto writ petition (Crl) 2 of 202 reported in -2021 SCC online
SC 325. the Honourable Apex court held that “20. Section 143 of the Act
mandates that the provisions of summary trial of the Code shall apply “as far
as may be” to trials of complaints under Section 138. Section 258 of the Code
empowers the Magistrate to stop the proceedings at any stage for reasons to
be recorded in writing and pronounce a judgment of acquittal in any summons
case instituted otherwise than upon complaint. Section 258 of the Code is not
applicable to a summons case instituted on a complaint. Therefore, Section
258 cannot come into play in respect of the complaints filed under Section 138
of the Act. The judgment of this Court in Meters and Instruments (supra) in so
far as it conferred power on the Trial Court to discharge an accused is not
good law. Support taken from the words “as far as may be” in Section 143 of
the Act is inappropriate. The words “as far as may be” in Section 143 are used
only in respect of applicability of Sections 262 to 265 of the Code and the
summary procedure to be followed for trials under Chapter XVII. Conferring
 37

power on the court by reading certain words into provisions is impermissible.

A judge must not rewrite a statute, neither to enlarge nor to contract it.
Whatever temptations the statesmanship of policy-making might wisely
suggest, construction must eschew interpolation and evisceration. He must
not read in by way of creation. The Judge’s duty is to interpret and apply the
law, not to change it to meet the Judge’s idea of what justice requires. The
court cannot add words to a statute or read words into it which are not there.

While issuing summons, the Courts shall see that the summons are
properly addressed and sent by post and also to the e-mail address of the
accused furnished by the complainant. The Court, shall also consider to take
the assistance of the Police or the nearby Court to serve summons or
warrants to the accused. For appearance of the accused, a short date shall be
fixed. If the summons is received back un-served, immediate follow up action
be taken. The courts shall treat the service of summons in one complaint
under Section 138 forming part of a translation, as deemed service in respect
of all the complaints filed before the same court relating to dishonor of
cheques issued as part of the said transactions.

Till this stage, the case shall be treated as Summary Trial Case, but not
as a regular Summons or Calendar Case. After examining the above aspects
the Court shall consider the scope of converting the case as a regular
Summons/Calendar case. If the Court is of the view that the case requires a
through and detailed trial or where the case warrants imposition of grave
punishment or where multiple connected civil/criminal cases are pending, it
shall record the reasons for converting the case into a regular Summons or
Calendar Case (CC-NI). The recording of reasons at this stage shall always
be mandatory in vide Directions of the Hon'ble supreme Court in its
Constitutional Bench decision, dated 16.04.2021 in Suo Motu Writ Petition
(Crl.) No.2 of 2020.
 38

The Magistrate's shall not entertain any miscellaneous application for

discharge of the accused as there is no provision in Cr.P.C. for discharge of
an accused in a Summary Trial Case or a Summons Case in view of the law
as settled in Suo Motu Writ Petition (Crl.) No.2 of 2020 titled In Re:
Expeditious Trial of Case Under Section 138 Negotiable Instruments Act.

The Magistrate Courts shall make every endeavour to complete the

trial of these cases within the statutory prescribed time limit of six (6) months.
After closure of the complainant side evidence, the accused shall be called
upon to answer the incriminate material available in the case of the
complainant against him under Section 351 of B.N.S.S (Sec.313 Cr.P.C) and
his detailed answers for the said questions shall be recorded. The accused
shall be permitted to file a defence statement in view of the provisions under
Section 351 of B.N.S.S (Sec.313 Cr.P.C) at this stage. In case the accused
choses to adduce evidence, the accused shall not be permitted to file his chief
examination evidence in the form of affidavit. However, the accused can be
permitted to enter into the witness box after obtaining necessary permission
from the Court under Section 353 of B.N.S.S (Sec.315 Cr.P.C). However, this
permission from the Court is not mandatory when the accused intends to
examine any other person as his witness. After recording the evidence of both
parties, the arguments shall be heard by the Court and the Court shall
pronounce the judgment within three days (excluding the day of hearing the
final arguments.)

In all the cases where the accused is found guilty of the offence under
Section 138 of Negotiable Instruments Act, the Court shall consider awarding
the compensation to the complainant party in view of the provisions under
138, 143 of Negotiable Instruments Act and Section 395 of B.N.S.S, 2023
(Sec.357 Cr.P.C). The Court must exercise the power and discretion to
compensate the injury suffered by the complainant. The Court may consider
granting of installments or time to pay such compensation amount. The Court
 39

may also consider to impose in default sentence on the accused in case of

failure to pay the compensation.

Section 143-A: In all trials under Sec.138 of Negotiable Instruments Act,

when the accused is claiming for a regular trial, the Court may order to direct
the accused to pay the interim compensation to the complainant which shall
not exceed 20% of the amount of cheque (Section 143-A). Such interim
compensation shall be paid within 60 days from the date of order and the
Court is competent to extend that time for further 30 days. In case of acquittal,
the Court shall direct the complainant to repay the interim compensation
amount with the bank interest rate to the accused within 60 days from the date
of judgment and this time can also be extended for further 30 days. Interim
compensation may be recovered as if it were a fine under Section 461 of
B.N.S.S, 2023 (Sec.421 Cr.P.C). This interim compensation amount shall be
adjusted against the final compensation ordered by the Court under Section
395 of B.N.S.S, 2023 (Sec.357 Cr.P.C) at the time of judgment.
 PAPER PRESENTATION ON PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005

[Link] Kumar,
II Additional Junior Civil Judge,
Ananthapuramu

“When centuries old obstructions are removed, age-old shackles are either
burnt or lose their force, the chains get rusted, and the human endowments and
virtues are not indifferently treated and emphasis is laid on “free identity” and not
on “annexed identity”, and the women of today can gracefully and boldly assert
their legal rights and refuse to be tied down to the obscurant conservatism.”
….Hon’ble Apex Court in Shamima Farooqui v. Shahid Khan,(2015)5 SCC 705

I:- Introduction :- The objective of the D.V. Act lays down that “An Act to
provide for more effective protection of the rights of women guaranteed under the
Constitution who are victims of violence of any kind occurring within the family
and for matters connected therewith or incidental thereto.” The Hon’ble High
Court of Andhra Pradesh in Giduthuri Kesari Kumar Vs State of Andhra
Pradesh, 2015 SCC Online Hyd, 18 emphasized that “When the statement of
objects and reasons of [Link] is perused, it was felt by the law framers the
phenomenon of domestic violence is widely prevalent but has remained largely
invisible in the public domain. Presently, where a woman is subjected to cruelty
by her husband or his relatives, it is an offence under Section 498A of the Indian
Penal Code but civil law does not however address this phenomenon in its
entirety. It was with this observation the Legislature proposed to enact
the Domestic Violence Act keeping in view the rights guaranteed under Articles
14, 15 and 21 of the Constitution to provide for a remedy under the civil law
(Emphasis Supplied) which is intended to protect the women from being a victim
of domestic violence and to prevent the occurrence of domestic violence in the
society” .

The Hon’ble Bombay High Court in the case of Ishpal Singh Kahai v.
Ramanjeet Kahai, 2011 SCC Online Bom 412 reiterated that the object of the
DV Act is to grant statutory protection to victims of violence in the domestic
sector who had no proprietary rights. The Act provides for security and protection
of a wife irrespective of her proprietary rights in her residence. It aims at
protecting the wife against violence and at the prevention of recurrence of acts of
violence.

II. Key Definitions under the Domestic Violence Act:

 Aggrieved Person

According to the definition provided under the DV Act in Section 2(a), an

“aggrieved person” means any woman 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. Therefore, any woman who is or has
been in a domestic relationship is entitled to make a complaint invoking
provisions of the Act.

In M. Palani v. Meenakshi, 2008 SCC Online Mad 150, the Hon’ble High
Court of Madras held that the amount or period of time lived together by the
petitioner and respondent is not necessary in terms of that the petitioner and
respondent should live or have lived together for a particular period of time.
Hence, application by lady, for maintenance, from a man with whom she shared
a close relationship is maintainable.

Recently the Hon’ble Supreme in Juveria Abdul Majid Patni v. Atif Iqbal
Mansoori and another, 2014 (10) SCC 736, held that even if after obtaining the
decree of divorce, the wife who had shared the household in the past but was no
longer residing with the husband, can file a petition under Section 12 of the DV
Act if subjected to domestic violence seeking relief under Section 18 to 23 of the
DV Act. Further more the Hon’ble Apex Court in Krishna Bhattacharjee v.
Sarathi Choudhury, (2016) 2 SCC 705 observed that judicial separation does
not change the status of the wife as an “aggrieved person” under Section 2(a)
read with Section 12 and does not end the “domestic relationship” under Section
2(f). It stated that judicial separation is mere suspension of husband-wife
relationship and not a complete severance of relationship as happens in divorce.

 Domestic Relationship

According to Section 2(f) of DV Act, “domestic relationship” means a

relationship between two persons living in a shared household. Domestic
relationship can be through marriage such as wives, daughters-in-law, sisters-in-
law, widows and any other members of the family; or blood relationship such as
mothers, sisters or daughters; and other domestic relationships including through
adoption, live-in relationships, and women in bigamous relationship or victims of
legally invalid marriages.
 In Indra Sarmav. V.K.V Sarma, (2013) 15 SCC 755, Hon’ble Supreme
Court stated that the word domestic relationship means a relationship that has
some inherent or essential characteristics of marriage though not a marriage that
is legally recognized. Expression “relationship in the nature of marriage” cannot
be construed in the abstract. It is to be taken in the context in which it appears
and to be applied bearing in mind the purpose and object of DV Act as well as
meaning of the expression “in the nature of marriage”.

In Harini H Vs. Kavya H and others, 2021 SCC Online Kar 12988 , the
Hon’ble High Court of Karnataka held that the complaint which was filed by a wife
under Protection of Woman from Domestic Violence Act is not maintainable
against the extra marital partner of husband.

Recently the Hon’ble Supreme Court in Prabha Tyagi Vs Kamlesh Devi,

2022 (8) SCC 900 held that it is not mandatory for the aggrieved person, when
she is related by consanguinity, marriage or through a relationship in the nature
of marriage, adoption or are family members living together as a joint family, to
actually reside with those persons against whom the allegations have been
levelled at the time of commission of domestic violence. If a woman has the right
to reside in the shared household under Section 17 of the D.V. Act and such a
woman becomes an aggrieved person or victim of domestic violence, she can
seek reliefs under the provisions of D.V. Act including enforcement of her right to
live in a shared household.

It was also held that that there should be a subsisting domestic relationship
between the aggrieved person and the person against whom the relief is claimed
vis-à-vis allegation of domestic violence. However, it is not necessary that at the
time of filing of an application by an aggrieved person, the domestic relationship
should be subsisting. In other words, even if an aggrieved person is not in a
domestic relationship with the respondent in a shared household at the time of
filing of an application under Section 12 of the D.V. Act but has at any point of
time lived so or had the right to live and has been subjected to domestic violence
or is later subjected to domestic violence on account of the domestic relationship,
is entitled to file an application under Section 12 of the D.V. Act

 Domestic Incident Report

Section 2 (e) of DV Act defines a domestic incident report as “a report

made in the prescribed form on receipt of a complaint of domestic violence
from an aggrieved person.” The purpose of this report is to give a glimpse of
 incidents of domestic violence with the aggrieved in a precise, unbiased
manner.

In Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90, the Hon’ble Apex
Court held that Section 12 does not make it mandatory for a Magistrate to
consider a domestic incident report filed by a Protection Officer or service
provider before passing any order under the DV Act. It is clarified that even in the
absence of a domestic incident report, a Magistrate is empowered to pass both
ex parte or interim as well as a final order under the provisions of the DV Act.
Thus it is manifest that filing of Domestic Incident Report is not mandatory to
deal with cases under the present Act. So, the said fact would not affect the
reliefs prayed by the petitioner

 Shared Household

According to Section 2(s) of DV Act 2005, a shared household is where the

aggrieved person or a woman lives in a domestic relationship, either singly, or
along with the man against whom the complaint is filed. It might also suggest a
household where a lady had resided in a domestic relationship before being
expelled. This could apply to a variety of circumstances, regardless of whether
the respondent owns or rents the home. It also includes a household that the
aggrieved person and the respondent may jointly possess or separately hold, as
well as any rights, titles, or interests therein. The right of a woman to live in a
shared household is recognized by the DV Act. This means that a woman cannot
be ousted from such a household other than by following the legal process. In the
event that she is necked out , she may be brought back with a court order.

 Domestic Violence

“Domestic violence” means not only physical violence but also other forms
of violence such as emotional violence, mental violence, sexual violence,
financial violence and other forms of cruelty that may occur within a household.
The definition runs in accordance with afore terms. It also defines the meaning
of terms physical abuse, sexual abuse, verbal and emotional abuse, and
economic abuse. It further enunciates that the overall facts and circumstances of
the case shall be taken into consideration in order to determine whether any act,
omission, commission or conduct of the respondent constitutes “domestic
violence” under the said section.

The Hon’ble High Court of Tripura, in Ramendra Kishore

Bhattacharjee vs. [Link] Bhattacharjee [[Link].36 of
2020] “ Denial of maintenance allowance to the wife obviously causes
‘economic abuse’ to her within the meaning of domestic violence as under
Section 3 of the DV Act”.

III. Parties by whom and against whom the reliefs can be sought:-

Any aggrieved woman who is or has been in a domestic relationship with the
respondent and who claims to have been the victim of domestic violence by the
respondent may seek assistance in accordance with the provisions of this Act.
Any adult male perpetrator who commits a violent act can be reported by a
woman.

The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora,

(2016) 10 SCC 165 struck down the word , “adult” male from the definition of
“respondent” stating that it is not based on any intelligible differentia having
rational nexus with object sought to be achieved. The Supreme Court also
explained in the said case that the categories of persons against whom remedies
under the DV Act are available include women and non-adults. Expression
“respondent” in Section 2(q) or persons who can be treated as perpetrators of
violence against women/against whom remedies under the DV Act are actionable
cannot be restricted to expression “adult male person” in Section 2(q). Thus,
remedies under the DV Act are available even against a female member and
also against non-adults.

a) Filing of an application under [Link]

An aggrieved woman may in order to file a complaint for domestic

violence may: Approach the police station and register the complaint, or File a
complaint to a Protection Officer or Service Provider, or Directly approach the
Magistrate. The duties of the police officers, Protection officer, Service Provider,
or the Magistrate is laid down under Section 5 of the Act. It states that, upon
receipt of complaint they shall inform the aggrieved person—

(a) of her right to make an application for obtaining a relief by way of a

protection order, an order for monetary relief, a custody order, a residence order,
a compensation order or more than one such order under this Act;

(b) about availability of services of service providers;

(c) about availability of services of the Protection Officers;

 (d) about her right to free legal services under the Legal Services
Authorities Act, 1987 ;

(e) about her right to file a complaint under Section 498-A of the Indian
Penal Code , wherever relevant”

b) Jurisdiction of Courts

Which Court can decide the case Section 27 of the DV Act provides that a
first class magistrate or metropolitan court shall be the competent court to grant a
protection order and other orders under the DV Act and to try offences under the
Act within the local limits of which

(a) the person aggrieved permanently or temporarily resides or carries on

business or is employed; or

(b) the respondent resides or carries on business or is employed;

or (c) the cause of action has arisen.

In Shyamlal Devda v. Parimala, (2020) 3 SCC 14, the Hon’ble Supreme

Court held that petition under DV Act can be filed in a court where “person
aggrieved” permanently or temporarily resides or carries on business or is
employed.

IV. Reliefs available under the Domestic Violence Act

The remedies available under the DV Act as provided from Section 18 to

23 for the aggrieved person are as follows:

 Protection orders (Section 18):

The Magistrate after giving the aggrieved person and the respondent an
opportunity of being heard and if satisfied that domestic violence has taken place
or is likely to take place may pass a protection order and prohibit the respondent
from (a) committing any act of domestic violence; (b) aiding or abetting in the
commission of acts of domestic violence; (c) entering the place of employment of
the aggrieved person or, if the person aggrieved is a child, its school or any other
place frequented by the aggrieved person; (d) attempting to communicate in any
form, whatsoever, with the aggrieved person, including personal, oral or written
or electronic or telephonic contact; (e) alienating any assets, operating bank
lockers or bank accounts used or held or enjoyed by both the parties, jointly by
the aggrieved person and the respondent or singly by the respondent, including
her stridhan or any other property held either jointly by the parties or separately
by them without the leave of the Magistrate; (f) causing violence to the
dependants, other relatives or any person who give the aggrieved person
assistance from domestic violence; (g) committing any other act as specified in
the protection order.

 Residence Order (Section 19)

The Magistrate may pass a residence order in favour the applicant

a) restraining the respondent from dispossessing or in any other manner

disturbing the possession of the aggrieved person from the shared household,
whether or not the respondent has a legal or equitable interest in the shared
household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any
portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared
household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate

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.

The High Court of Madras in M. Muruganandam v. M. Megala, 2010 SCC

Online Mad 6012 opined that the Act contemplates two types of reliefs viz. (a)
right to reside in shared household; and (b) right to seek residence orders under
Section 19 of the Act.

It was held that Section 19(1) of the Act empowers Magistrate to pass
variety of residence order. Shared household would come into picture only when
relief is sought in terms of Sections 19(1)(a) to (e) of the Act.
 Aggrieved woman can seek orders to enable her to continue to reside in
shared household or protection order to enable her to reside in shared
household, then property, which is subject-matter, should be shared household.
Aggrieved woman can seek relief of alternate accommodation in terms of Section
19(1)(f) of the Act and in such case concept of shared household would not be
attracted. Expression “shared household” occurring in Section 19(1)(f) of the Act
is just for purpose of enabling aggrieved woman to seek alternative
accommodation, which would be on par with shared household that she enjoyed
at some point of time,

 Monetary Relief (Section-20)

Under Section 20 of DV Act, an order for monetary relief can be passed by

the court in case a woman has incurred expenditure as a result of violence. This
may include expenses incurred by a woman on obtaining medical treatment, any
loss of earnings, damage to property, etc. The aggrieved person can also claim
for maintenance from her male partner.

The Magistrate may direct the respondent to pay monetary relief to meet
the expenses incurred and losses suffered by the aggrieved person and any child
of the aggrieved person as a result of the domestic violence and such relief may
include, but is not limited to,—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if
any, including an order under or in addition to an order of maintenance under
Section 125 of the Code of Criminal Procedure, 1973 or any other law for the
time being in force.

The provision further states that the monetary remedy offered must be
sufficient, fair, and reasonable and must be in line with the aggrieved person's
usual quality of life. The Magistrate may order the employer or a debtor of the
respondent to directly pay the aggrieved party or to deposit with the court a
portion of the wages or salaries or debt due to or accrued to the credit of the
respondent in the event that the respondent fails in part to make payment in
accordance with the monetary order. This amount may be adjusted towards the
monetary relief payable by the respondent.

It is germane to mention that as per the Judgment of Hon’ble Supreme

Court in Rajnesh Vs Neha, 2021 (2) SCC 324, every court is bound to consider
and adjust maintenance which was awarded to petitioner in previous
maintenance proceedings for giving financial relief under [Link].

 Custody Orders (Section 21)

The Magistrate may grant temporary custody of the children to the aggrieved
woman or any person making an application on her behalf. This is to prevent a
woman from being separated from her children, which itself is an abusive
situation. Section 21 also states that the Magistrate may, at any stage of hearing
of the application for protection order or for any other relief under this Act grant
temporary custody of any child or children to the aggrieved person or the person
making an application on her behalf and specify, if necessary, the arrangements
for visit of such child or children by the respondent. However, the Magistrate may
refuse such visit to such child or children, if it feels that any visit to the child or
children by the respondent may be harmful.

 Compensation Orders (Section 22)

The Magistrate may on an application being made by the aggrieved person,

pass an order directing the respondent to pay compensation and damages for
the injuries, including mental torture and emotional distress, caused by the acts
of domestic violence committed by that respondent.

 Magistrate’s power to grant interim and ex parte orders (Section 23)

Section 23 gives power to the Magistrate to pass such interim order as he deems
just and proper and also 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.

The Hon’ble Supreme Court in Rajnesh Vs Neha, 2021 (2) SCC 324,
made it as a mandatory to both parties to files their Affidavit of Disclosure of
Assets and Liabilities annexed as Enclosures I, II and III as may be applicable, in
all maintenance proceedings, including pending proceedings before the
concerned Family Court / District Court / Magistrates Court, as the case may be,
throughout the country.

V) Execution of orders:-

a) Breach of Protection order passed under section 18 of [Link]:

Section 30 of D.V. Act provides penalty for the breach of protection order by the
respondent . It states that a breach of protection order, or of an interim
protection order, by the respondent shall be an offence under this Act and shall
be punishable with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to twenty thousand rupees, or
with both. Moreover section 31 of [Link] makes offence as non bailable and
cognizance.

A question as to whether Section 31 of The Protection of Women from

Domestic Violence Act, 2005 (for short ‘the DVC Act’) which prescribes penalty
for breaching ‘protection order’ under section 18 of the Act, be extended to
prosecution for beach of orders of maintenance and compensation granted by
the Court under Sections 20 and 22 respectively was answered by the Hon’ble
High Court of Telangana in Judgement of C.D. Ravindernath Vs Srilatha and
another, Criminal Petition No. 7027 of 2022, dated 28-04-2023, wherein it was
held that only breach of protection order is a punishable offence under section 30
of [Link] and not every violation of order entails in prosecution of respondent
under section 31 of [Link]. However the Hon’ble High Court of Madhya
Pradesh in Surya Prakash v. [Link], 2018 CRI.L.J 2545 and Hon’ble
Karnataka High Court in the judgment of Vincent Shanthakumar v.
[Link] Geetha Rani, 2015 CRI.L.J 1874 held that the Court can invoke
provisions under Section 31 of the Act for breach of monetary relief orders also .

b) Breach of orders passed granting monetary reliefs to the

aggrieved person: As the term "monetary relief" is not included in this Section
and thereby taking out of the operation of Section 31 of the Act of 2005 any
breach of an order of monetary relief. An applicant, in whose favour the order of
monetary relief has been passed, has to apply to the Magistrate for seeking
execution of the order as per Section 20 of the Act of 2005. A reading of Section
20 of the Act of 2005 reveals that exhaustive procedure for the execution of
monetary relief has not been laid down in this section because sub-sections (4)
and (5) of Section 20 provide the consequences to an order of monetary relief.
Sub-section (6) of Section 20 of the Act of 2005 entitles the Magistrate to direct
the employer or debtor of the respondent to directly pay to the aggrieved person
or to deposit with the Court a portion of wages or salaries or debt due or accrued
to the creditor of the respondent towards the monetary relief payable by the
respondent.

However, this provision is limited to the person who may have accrued
credit or is a salaried person, but in case of a self-employed person, this
provision would be of no help. So it would be worthwhile to refer Section 28 of
the Act of 2005, which lays down that the courts shall be governed by the general
provisions of the Code of Criminal Procedure in relation to the proceedings
under Sections 12, 18, 19, 20, 21, 22 and 23 as well as for the offence
under Section 31 of the Act of 2005. Sub-section (2) of Section 23 of the Act of
2005 provides for a procedure to be laid down by the court on its own for the
disposal of an application under Section 12 or sub-section (2) of Section 23 of
the Act of 2005. The procedure, which the court can adopt is limited to the
disposal of the application, but for execution of the order, a resort has to be had
to the general provisions of the Code of Criminal Procedure. The provisions of
the Code of Criminal Procedure in relation to execution of the order
under Section 125 Cr.P.C. have to be resorted to by the courts for giving force to
the order of monetary relief.

Thus it is evident if the order is passed under Section 12 or 23 of the Act

of 2005 for directing the monetary relief, the Court, after the period provided for
appeal is over, shall suo motu issue warrant of recovery for recovery of the
monetary relief directed to be paid and in the event of warrant for recovery not
being satisfied then the consequence of sending the respondent to civil jail, as
per the procedure provided under Section 125 Cr.P.C., shall be resorted to.

VI) Conclusion

Although this Act’s primary goal of safeguarding women against domestic abuse
has been achieved, certain of its specific provisions still need to be amended for
effective and expeditious execution of orders/benefits. The victims of domestic
violence have access to civil remedies attributable to this law. Before the
enactment of this law, a woman had no other choice except to turn to the civil
courts in order to pursue any legal remedies, including child custody, all types of
injunctions, and maintenance. As a result, the DV Act has undoubtedly brought
about the essential reform in the system. despite the fact that the Act offers a
wide range of remedies to address the problem of domestic violence, its
definition and application still need to be redefined and proper safeguards must
be enumerated for preventing the misusage of this Act, which is legislated with
an solemn object of prevention of domestic violence within domestic household.

IMPORTANT JUDGMENTS ON [Link]:

 [Link] Vs. [Link] Batra Civil Appeal No.5837 of 2006 Dated

15.12.2006 (2007) 3 SCC 169 Supreme Court.

In this case, the Supreme Court with reference to definition of shared

household under sec.2(s) of PWDV Act.2005 held that 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 requires to be interpreted in a sensible manner.
The Court further held that under Sec. 17(1) of the PWDV Act 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. In the
case, the property in question neither belonged to the husband nor was it taken
on rent by him nor was it a joint family property of which the husband was a
member. It was the exclusive property of mother of husband and not a shared
household. However this judgment has been over ruled by the Supreme Court in
Very Recent judgment in the case of Satish Chander Ahuja Vs. Sneha Ahuja
Civil Appeal No.2483 of 2020 dated 15.10.2020.

 Vimlaben Ajitbhai Patel Vs. Vatsalben Ashokbhai Patel and Ors.

(2008) 4 SCC 649 Supreme Court.

In this case, the Supreme 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 (ii) Whether in a case of this nature, the bail granted to the
appellants should have been directed to be cancelled?” In the above case, the
complaint was filed by third respondent against her husband and appellant’s
father-in-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 the
Supreme 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
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 subject matter of attachment nor during the lifetime of the husband,
her personal liability to maintain his wife can be directed to be enforced against
such property. 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 self acquired 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 but not of her mother-in-law. In
paragraph 27, the Supreme Court further held:- 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 there under 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. In paragraph 28, the Supreme
Court noticed the judgment passed in S.R. Batra Vs. Taruna Batra. The Supreme
Court held that the High Court erred in cancelling the bail of the appellants.
Allowing the appeal, following directions were issued:- 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 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.

In the above case, the Supreme 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.

 D. Veluswamy Vs. D. Patchaiammal ([Link] No.2028-2029 of 2010)

Supreme Court.

In this case the Supreme Court has given, a wider meaning to an “aggrieved
person” under sec. 2 (a) of the PWDV Act 2005. The Court enumerated five
ingredients of a live in relationship as follows: [Link] the parties must be as
husband and wife and are recognized as husband and wife in front of society
[Link] must be of a valid legal age of marriage [Link] should qualify to enter
into marriage eg. None of the partner should have a souse living at the time of
entering into [Link] must have voluntarily cohabited for a significant
period of time [Link] must have lived together in a shared household. The
Supreme Court also observed that not all live-in-
relationships will amount to a relationship in the nature of marriage to get
the benefit of PWDV Act. To get such benefit the conditions mentioned above
shall be fulfilled and this has to be proved by evidence.

 Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade (2011) 3

SCC 650 Supreme Court.

In this case it has been held by the Supreme Court that the term “respondent”
includes the term “female relative” .The legislature never intended to exclude
female relative of the husband or male partner from the ambit of a complaint that
can be made under the provisions of the Act.

 Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad & Anr.

[Link] No.2032-2033 of 2012 decided on 12.12.2012 Supreme
Court.

In this Case the Hon’ble Supreme Court has observed that the respondent before
us had claimed (before the trial court as well as the High Court) that the marriage
between him and the appellant solemnized on 4.12.2006, by performance of
rituals in accordance with Hindu Law, was void on account of the previous
marriage between the appellant with one Rohit Kumar Mishra. In support thereof,
the respondent relied on a marriage certificate dated 18.4.2003 issued under
Section 13 of the Special Marriage Act, 1954. Acting solely on the basis of the
aforesaid marriage certificate the learned trial court as well as the High Court had
proceeded to determine the validity of the marriage between the parties though
both the courts were exercising jurisdiction in a proceeding for maintenance.
However, till date, the marriage between the parties is yet to be annulled by a
competent court. What would be the effect of the above has to be determined
first inasmuch as if, under the law, the marriage between the parties still subsists
the appellant would continue to be the legally married wife of the respondent so
as to be entitled to claim maintenance and other benefits under the DV Act,
2005. Infact, in such a situation there will be no occasion for the Court to
consider whether the relationship between the parties is in the nature of a
marriage admittedly, both the appellant and the respondent are governed by the
provisions of the Hindu Marriage Act, 1955. Section 11 of the Hindu Marriage Act
makes it clear that a marriage solemnized after the commencement of the Act
“shall be null and void and may, on a petition presented by either party thereto
against the other party, be so declared by a decree of nullity if it contravenes any
one of the conditions so specified in clauses (i), (iv) and (v) of Section 5.”

While considering the provisions of Section 11 of the Hindu Marriage Act, 1955
this Court in Yamunabai v. Anantrao has taken the view that a marriage covered
by Section 11 is void-ipso-jure, that is, void from the very inception. Such a
marriage has to be ignored as not existing in law at all. It was further held by this
Court that a formal declaration of the nullity of such a marriage is not a
mandatory requirement though such an option is available to either of the parties
to a marriage. It must, however, be noticed that in Yamunabai there was no
dispute between the parties either as regards the existence or the validity of the
first marriage on the basis of which the second marriage was held to be ipso jure
void. In the present case, however, the appellant in her pleadings had clearly,
categorically and consistently denied that she was married to any person known
as Rohit Kumar Mishra. The legitimacy, authenticity and genuineness of the
marriage certificate dated 18.4.2003 has also been questioned by the appellant.
Though Section 11 of the aforesaid Act gives an option to either of the parties to
a void marriage to seek a declaration of invalidity/nullity of such marriage. In the
present case, if according to the respondent, the marriage between him and the
appellant was void on account of the previous marriage between the appellant
and Rohit Kumar Mishra the respondent ought to have obtained the necessary
declaration from the competent court in view of the highly contentious questions
raised by the appellant on the aforesaid score. It is only upon a declaration of
nullity or annulment of the marriage between the parties by a competent court
that any consideration of the question whether the parties had lived in a
“relationship in the nature of marriage” would be justified. In the absence of any
valid decree of nullity or the necessary declaration the court will have to proceed
on the footing that the relationship between the parties is one of marriage and not
in the nature of marriage.

 Indra Sarma Vs. [Link] (Crl.A. No.2009 of 2013) decided on

26.11.2013 Supreme Court.

The case in hand is a land mark judgment which defined the scope and ambit of
Sec. 2 (f) of PWDV Act 2005. In this Case it has been held that a woman who
was in a live-in relationship with a married man for 14 years was not accorded
the fruits of the Protection of Women from Domestic Violence Act, [Link] is
further held that such a live-in relationship fell outside the purview of 'relationship
in the nature of marriage. While arriving at this conclusion, which has far-
reaching implications on rights of aggrieved persons in non-matrimonial
relationships, the Supreme Court laid down various criteria for the purpose of
determining as to what kind of relationships would fall within the ambit of the
expression 'relationship in the nature of marriage' as worded in the section2(f) of
PWDV Act.2005.

 Preeti Satija Vs. Raj Kumari and Anr 2014 SCC Online Del 188 Delhi
High Court.

In this judgment the Division Bench of the Delhi High Court laid down following:-
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 injected 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, especially 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. 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 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-in-law (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.

8. Navneet Arora Vs. Surender Kaur and Ors 2014 SCC Online Del 7617
Delhi High Court.

In this case the Court had considered the various aspects of Domestic Violence
Act, 2005. Dealing with right of residence and following was held:- “ 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 proviso to Section 19(1) that whilst
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. 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. 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.”

 Hiral P. Harsora and others Vs. Kusum Narottamdas Harsora and

others, (2016) 10 SCC 165 Supreme Court.

In this Case the Supreme Court has struck down the expression “adult male”.
The Supreme 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.
Hence, it is now permissible under definition of Section 2(q) to include females
also. 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:- "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 aggrieved person has any right, title or interest in the shared household.

 Shalu Ojha Vs. Prashant Ojha SLP (Crl.) no. 3935 of 2016 dated
23.07.2018 Supreme Court.

In this case, matrimonial relationship was strained between petitioner wife and
respondent husband resulting in multiplicity of legal proceedings. Petitioner filed
a case claiming remedies under Protection of Women from Domestic Violence
Act, 2005, trial court awarded an interim maintenance of Rs 2,50,000 and
compensation of Rs. 1,00,000. In appeal filed against the award, the Session
Court reduced maintenance to Rs. 50,000. Appeal preferred by respondent
husband was dismissed and SLP was also dismissed. While appeal was still
pending before High Court, petitioner wife preferred appeal before Supreme
Court challenging order passed by Sessions court. The court held that
proceedings under Protection of Women from Domestic Violence Act, 2005, are
summary proceedings in nature, petitioner wife was allowed to file a suit under
provisions of Hindu Adoptions and Maintenance Act, 1956 or section 125 of
CrPC, 1973 where both parties can present their evidences before competent
court. Respondent husband was directed to continue paying maintenance of Rs.
50,000 per month.

 Kunapareddy @ Nookala Sanka Bala ji [Link] Swarna

Kumari & Anr. ([Link] No.516 of 2016 decided on 18.04.2016
Supreme Court.

The major issue that arises for consideration in the instant case is whether a
court dealing with the petition/complaint filed under the provisions of the
Protection of Women from Domestic Violence Act, 2005 can allow amendments.
The dispute was also in nature of proceeding i.e. whether it was of civil or
criminal nature. The main contention of the herein appellant was that Section 28
of DV Act says proceedings under this act should be governed by Cr.P.C and
because Cr.P.C does not allow amendments and allowing amendments under
C.P.C is violation of the provision, therefore the Trial Court and High Court was
mistaken in allowing the amendments. It was held by the Supreme Court that the
order passed for amendments by the Trial Court was rightly upheld by the High
Court. The court said that it cannot be said that the court dealing with the
application under the DV Act has no power and/or no jurisdiction to allow the
amendment of the said application.

 Samir Vidyasagar Bhardwaj Vs. Nandita Samir Bhardwaj (Crl. Appeal

No.6450/2017 decided on 09.05.2017 Supreme Court.

In this Case the Hon’ble Supreme Court has observed that the respondent filed
a petition under Sec 27(1)(d) of the Special Marriage Act for divorce against the
appellant in the family court in Mumbai. The respondent sought relief – directing
the appellant to move out of the matrimonial home and hand over the vacant
possession of the same to respondent and to pay a maintenance of Rs.1,00,000
and other consequential reliefs apart from seeking dissolution of marriage. It is a
proved fact that the concerned flat was purchased in the joint names of the
appellant and respondent. The family court arrived at a finding that prima facie
material was available on record to accept the allegation of the respondent wife
on domestic violence. The Judge concerned had exercised his discretion under
Section 19(1)(b) of the Domestic Violence Act which provides that the Magistrate
on being satisfied that domestic violence has taken place can remove the spouse
from the shared household. The appellant husband appealed to High Court
contending that the final relief sought in the main petition could not have been
granted at interim stage and also being co-owner of the flat, he cannot be ousted.
The High Court declined to interfere with the order. Supreme Court also decided
that the family court has correctly applied its discretion on Section 19(1)(b) of DV
Act.

 Manmohan Attavar Vs. Neelam Manmohan Attavar, (2017) 8 SCC 550

Supreme Court.

In this case it has been held that PWDV Act.2005 has been enacted to create an
entitlement in favour of the woman of the right of residence. 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. 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:- 2(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. The expression “respondent” is defined in Section 2 (q) 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.
  Vaishali Abhimanyu Joshi Vs. Nana Saheb Gopal Joshi ([Link].6448
of 2017 ) decided on 09.05.2017 Supreme Court.

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. 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. The Supreme Court noted the
question, which arose for consideration in the above case in paragraph 16, which
is to the following effect:- 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? . After
noticing the provision of Section 26 of the Act, the Supreme Court made following
observations. 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 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. 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. The Supreme
Court held that Section 26 has to be interpreted in a manner to effectuate the
purpose and object of the Act. The Supreme Court held that the determination of
claim of the aggrieved person was necessary in the suit to avoid multiplicity of
proceedings. The Supreme Court laid down following . 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. 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.

 Lalita Toppo Vs. The State of Jharkhand & Anr. ([Link] No.1656
of 2015 decided on 30.10.2018 Supreme Court.

In this case the appellant Lalita Toppo claimed maintenance under the provisions
of the Protection of Women from Domestic Violence Act, 2005 despite the fact
that she was not a legally wedded wife and thus was not eligible to claim
maintenance under Section 125 of the Code of Criminal Procedure, 1973. It is
held that the maintenance can be claimed under Domestic Violence Act, 2005
even if the claimant is not a legally wedded wife. Such relief cannot be allowed
under section 125 of CrPC. The bench expanded the definition of the term
“domestic violence” contained in Section 3(a) of the D.V Act, 2015 to include
economic abuse as domestic violence. Further, the court held that the estranged
wife or live-in-partner would be entitled to extra relief under the provisions in
Section 3(a) of the D.V Act, 2005 than what is provided under Section 125 of the
Cr.P.C.

 Kamlesh Devi Vs. Jai Pal & Ors. SLP (Crl.)Diary No.34053 of 2019
Decided on 04.10.2019 Supreme Court.

This special leave petition was directed against an order dated 16th September,
2016 passed by the High Court of Punjab & Haryana at Chandigarh, dismissing
Criminal Revision No.609/2015, filed by the petitioner under Section 401 of
Cr.P.C .By a judgment dated 22nd October, 2012 the Judicial Magistrate (First
Class) dismissed a complaint filed by the petitioner under the provisions of the
Protection of Women from Domestic Violence [Link] appeal filed by the
petitioner against the said judgment and order has been dismissed. The
revisional application filed by the petitioner under Section 401 of the Criminal
Procedure Code for quashing the appellate order of the Sessions Judge and the
judgment and order of the Judicial Magistrate (First Class) has been dismissed
by the order impugned in the special leave petition. It has been held in the
present case that the High Court has rightly found in effect that the ingredients of
domestic violence are wholly absent in this case. The petitioner and the
respondents are not persons living together in a shared household. There is a
vague allegation that the respondents are family members. There is not a
whisper of the respondents with the petitioner .They appear to be neighbour,
hence the Supreme Court has dismissed the Petition.

 [Link] & Anr. Vs. Yoga @ yogalakshmi ([Link] No.1613/019

dated [Link] Court.

In this case the appellants has assailed an order dated 06.03.2015 passed by the
High Court dismissing the criminal revision, declining to interfere with the order
dated 20.01.2015 affirming order dated 28.09.2012 for grant of Rs.10,000/- as
maintenance to the respondent in proceedings under section 20 of the Protection
of Women from Domestic Violence Act, [Link] was argued by the appellants that
the claim for maintenance under section 20 of the Act was specifically negatived
by the judicial magistrate as such the Magistrate could not have simultaneously
ordered for maintenance in a pending proceeding under section 125 of Code of
Criminal Procedure (for short, the ‘Cr.P.C.’) over which he had no jurisdiction. It
was also submitted that the respondent has since remarried. On behalf of the
respondent Court’s attention was drawn to the interim order dated 12.10.2018 for
payment of all arrears of maintenance. He however did not dispute the fact that
the respondent has since remarried on [Link] is held that admittedly, the
respondent was denied any monetary compensation under section 20 of the Act
by the learned Magistrate. Once the learned Magistrate declined to grant
maintenance for reasons specified, it was not open for him to assume jurisdiction
in a proceeding under section 125 of the Cr.P.C. which was not pending before
him and was a completely independent proceeding to direct grant of
maintenance under the same. The two being independent proceedings, the
learned Magistrate wrongly assumed jurisdiction under Section 125 Cr.P.C in a
proceeding under the Act. In effect, what the magistrate directly declined to the
respondent, he granted indirectly by observing that till the proceedings under
section 125 of Cr.P.C. is not decided, the appellants shall pay maintenance at a
rate of Rs.2,000/- per month to the respondent. The order is without jurisdiction
and therefore wholly unjustified and unsustainable. The respondent never
challenged the order of the learned Magistrate declining monetary relief under
section 20 of 3 the Act. The parties are however agreed that the amount of
maintenance which has already been paid under the impugned orders shall not
be recovered and also that any amount lying in deposit in the family court may be
withdrawn by the respondent. The impugned orders, with the aforesaid
exception, are set aside.

 Ajay Kumar Vs. Lata @ Sharuti & Ors. ([Link] )No.617 of 2019
decided on 08.04.2019 Supreme Court.

In this case the first respondent filed a petition under Section 12 of the Act inter
alia for the purpose of seeking an award of maintenance. The complaint contains
a recital of the fact that after her marriage, the complainant and her spouse
resided at a house which constitutes ancestral Hindu Joint Family Property. She
and her husband resided on the ground floor of the residential accommodation.
The appellant and the deceased spouse of the first respondent jointly carried on
a business of a kiryana store at Panipat from which, it has been alleged, each
had an income of about Rs 30,000 per month. The complaint alleges that at the
death of Vijay Kumar, the first respondent was pregnant and that she gave birth
to a child on 31 January 2013. The travails of the first respondent are alleged to
have commenced after the death of her spouse and she was not permitted to
reside in her matrimonial home. The learned Trial Judge by an order dated 3 July
2015 granted monthly maintenance in the amount of Rs 4,000 to the first
respondent and Rs 2,000 to the second respondent. The award of maintenance
was directed against the appellant who was carrying on the above business
together with the deceased spouse of the first respondent. This order of the
Judicial Magistrate, First Class, Panipat dated 3 July 2015 was confirmed by the
Additional Sessions Judge, Panipat on 14 August 2018. The High Court, in a
petition filed by the appellant, affirmed the view. Hence these proceedings came
to be instituted under Article 136 of the Constitution of India. Under the provisions
of Section 20(1), the Magistrate while dealing with an application under sub
Section (1) of Section 12 is empowered to direct the respondent(s) to pay
monetary relief to meet the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved person as a result of domestic
violence. This may include but is not limited to an order for maintenance of the
aggrieved person as well as her children, if any, including an order under or in
addition to an order for maintenance under Section 125 of the CrPC or any other
law for the time being in force. The expression “respondent” is defined in Section
2(q) as follows:- 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; The
substantive part of Section 2(q) indicates that the expression “respondent”
means any adult male person who is, or has been, in a domestic relationship with
the aggrieved person and against whom relief has been sought. The proviso
indicates that both, an aggrieved wife or a female living in a relationship in the
nature of marriage may also file a complaint against a relative of the husband or
the male partner, as the case may be. Section 2(f) defines the expression
“domestic relationship” thus: 2(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; Section 2(f) defines the expression ‘domestic
relationship’ to mean a relationship where two persons live or have lived together
at any point of time in a shared household when they are related by
consanguinity, marriage or through a relationship in the nature of marriage,
adoption or are members living together as a joint family. The expression “shared
household” is defined in Section 2(s) as follows:- 2(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 house hold 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 has any right, title or interest in
the shared household; All these definitions indicate the width and amplitude of
the intent of Parliament in creating both an obligation and a remedy in the terms
of the enactment. In the present case, at this stage, it would be sufficient to
advert to the contents of paragraph 10 of the complaint which read as follows:-
“10. That the marriage between the Complainant No. 1 and Sh. Vijay Kumar
Jindal was settled through Sh. Narender Jain S/o. Late Sh. Rameshwar Dass R/o
Haryana SchoolWali-Gali, VIII, Inder Garhi, Tehsil Gohana, Distt. Sonepat, and
before marriage he (Mediator namely Sh. Narender Jain) told that previously
there was a residential house situated near Railway Fathak, Jatal Road, Panipat,
which was constructed by Sh. Mai Dhan (Grandfather of Sh. Vijay Kumar Jindal
and Respondent No. 2) and after the death of said Sh. Mai Dhan, his son Sh.
Brahmanand Jindal (Father of Sh. Vijay Kumar Jindal and Respondent No. 2)
became the owner in possession of the said house and later on Sh. Brahmanand
Jindal, sold away the said house and purchased H No. 149, Eight Marla Colony,
Kranti Nagar, Near Radha Krishna Mandir, Panipat in the name of his wife Smt.
Rajo Devi (Respondent No. 1) about 8 years ago. Thus the said house i.e. H No.
149, Eight Marla Colony, Kranti Nagar, Near Radha Krishna Mandir, Panipat is
ancestral Joint Hindu Family property / residential house standing in the name of
Respondent No. 1 qua the present complainants.” In paragraph 12 and 13, it has
been averred as follows:- “12. That after marriage between the Complainant No.
1 and Sh. Vijay Kumar Jindal, the Respondents provided the ground floor of H
No. 149, Eight Marla Colony, Kranti Nagar, Near Radha Krishna Mandir, Panipat
to the newly wedded couple (i.e. Complainant No. 1 and Sh. Vijay Kumar Jindal)
and they kept all dowry articles, house hold articles etc. mentioned above in the
said residential accommodation (ground floor of said house) and she (i.e.
Complainant No. 1) also consummated her marriage with her husband in the
Ground floor of said house and Kirti Jindal (Complainant No. 2) was born out of
the said wedlock. It is pertinent to mention here that all dowry articles, istridhan,
household articles, furniture etc. etc. are still kept in said house / matrimonial
house of Complainant No. 1 and the golden ornaments and jewelry etc., all are
yet in possession of the Respondents. 13. That it is worthwhile to mention here
that after the marriage of Complainant No. 1, both brother Sh. Vijay Kumar Jindal
and Ajay Kumar Jindal were running their joint business of M/s. Ajay Kumar
Vijay Kumar Kiryana Store, at Jatal Road, Sanjay Chowk Panipat, very smoothly
and both brothers were taking / deciding Rs. 30,000/- P.M. each, out of the
income of the said business, for the maintenance of their respective families.
However after the death of Sh. Vijay Kumar, the Respondent No. 2 has been
running the said business and the Complainants are equally entitled to the
amount which the respondent No. 2 has been deducting from the said joint
business or at least Rs. 30,000/- P.M. which the Complainant No. 1 has been
receiving during the life time of Sh. Vijay Kumar Jindal.” At the present stage,
there are sufficient averments in the complaint to sustain the order for the award
of interim maintenance. Paragraph 10 of the complaint prima facie indicates that
the case of the complainants is that the house where the first respondent and her
spouse resided, belong to a joint family. The appellant and his brother (who was
the spouse of the first respondent and father of the second respondent) carried
on a joint business. The appellant resided in the same household. Ultimately,
whether the requirements of Section 2(f); Section 2(q); and Section 2(s) are
fulfilled is a matter of evidence which will be adjudicated upon at the trial. At this
stage, for the purpose of an interim order for maintenance, there was material
which justifies the issuance of a direction in regard to the payment of
maintenance. However, we clarify that the present order as well as orders which
have been passed by the courts below shall not come in the way of a final
adjudication on the merits of the complaint in accordance with law. The arrears
shall be paid over within a period of four months from today by equal monthly
installments.

 Satish Chander Ahuja Vs. Sneha Ahuja Civil Appeal No.2483 of 2020
dated 15.10.2020 Supreme Court.

In this land mark judgment the Hon’ble Supreme Court has held that the term
“shared household” under Section 2(s) does not only mean a household of the
joint family of which husband is a member or in which husband of the aggrieved
person has a share. Instead, it means the household belonging to any relative of
the husband with whom the women has lived in a domestic relationship.

The Court, therefore, overruled the law laid down in SR Batra v. Taruna
Batra [(2007) 3 SCC 169].

 Vineeta Sharma Vs. Rakaesh Sharma & Ors.2020 SCC online SC 641
Supreme Court.

In this land mark judgment the Hon’ble Supreme Court has held that daughters
have equal right in coparcenaries by birth and it is not necessary that the father
should be living when the Hindu Succession (Amendment) Act, 2005 came into
force for the daughters to get a share. The Court observed that-
“The conferral of right is by birth, and the rights are given in the same manner
with incidents of coparcener as that of a son and she is treated as a coparcener
in the same manner with the same rights as if she had been a son at the time of
birth.”

To ensure that this decision does not lead to reopening of earlier family
settlements or partition suits already decreed, the apex court held that a
registered settlement or partition suit decreed prior to December 20, 2004 (the
date when the Amendment Bill was tabled in Rajya Sabha), will not be reopened.

 [Link] Vs. Deputy Commissioner, Bengaluru Urban District

C.A No. 3822 of 2020 dated 15.12.2020 Supreme Court.

The Three Judge Bench of the Hon’ble Supreme Court of India comprising of J.
Dr. Dhananjaya Y Chandrachud, J. Indu Malhotra and J. Indira Banerjee had
held that provisions of Maintenance and Welfare of Parents and Senior Citizens
Act, 2007 cannot be invoked by in-laws to evict their daughter in law as it would
deprive her of rights in a shared household under the Protection of Women from
Domestic Violence Act, 2005 .It is further observed that allowing the Senior
Citizens Act 2007 to have an overriding force and effect in all situations,
irrespective of competing entitlements of a woman to a right in a shared
household within the meaning of the PWDV Act 2005, would defeat the object
and purpose which the Parliament sought to achieve in enacting the latter
legislation. The law protecting the interest of senior citizens is intended to ensure
that they are not left destitute, or at the mercy of their children or relatives.
Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of
statutory interpretation. Both sets of legislations have to be harmoniously
construed. Hence the right of a woman to secure a residence order in respect of
a shared household cannot be defeated by the simple expedient of securing an
order of eviction by adopting the summary procedure under the Senior Citizens
Act 2007. The Bench held that the Maintenance and Welfare of Parents and
Senior Citizens Act has no overriding effect over the right of residence of a
woman in a shared household within the meaning of the Protection of Women
from Domestic Violence Act.
 1

Paper Preparation by Smt [Link] LAKSHMI, Spl. Judge, for Trial of

Offences under POCSO Act, Ananthapuramu, on the topics of
Nature of Offences, Presumptions and Compensation under
Protection of Children from Sexual Offences Act, 2012.
I. Introduction:

For protecting children from sexual offences, separate statute in

form of “PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT
2012” has been enacted, which came into force from 19th June, 2012 and
some amendments were made in 2018 vide Act No.22 of 2018 and some
in 2019 vide Act No.25 of 2019. The statute contains 9 chapters and 46
Sections.
Before the introduction of the POCSO Act, 2012, the sole legislation
in India that aimed at protecting the rights of a child was the Goa’s
Children’s Act, 2003 and Rules, 2004. Under the Indian Penal Code, 1860,
child sexual abuse accounted for an offence under Sections 375, 354 and
377. These provisions neither protect male children from sexual abuse
nor protect their modesty. Also, definitions of the terms like ‘modesty’ and
‘unnatural offence’ are not provided in the Code. Owing to the lack of any
specific legislation, it was pivotal to establish a statute that pointedly
tackles the issue of growing child sexual abuse cases in the country. With
the efforts of multifarious NGOs, activists and the Ministry of Women and
Child Development, POCSO Act, 2012 has been enacted.

The act when enacted in the year 2012 was applicable to all the
states and Union Territories of India except the state of Jammu and
Kashmir ( which constituted of the regions of Jammu, Kashmir and
Ladakh) which had special status by the virtue of Article 370 of the Indian
Constitution. After the abrogation of Article 370 on 5th August, 2019 the
special status of Jammu and Kashmir was stripped off, and since then the
legislation is applicable in Jammu and Kashmir as well as in Ladakh by
the act 34 of 2019.
 2

1. Gender-Neutral Law :

Protection Of Children from Sexual Offences Act sets a neutral tone

with regards to gender of the victim. Unlike other previous provisions this
legislation doesn’t ignore the male child victims. Under this law “any
person” under the age of 18 years in considered as a child within the
definition of Sec.2 (1)(d) of POCSO Act.

The Act is very exhaustive set of legislation, which defines various

sexual offences and provides for constitution of Special Courts to try the
cases under the Act, makes specific provision for mandatorily reporting of
sexual offences on the part of various stakeholders in the society, weighty
punishment for chronic sexual offences being committed on children,
conducting investigation, inquiry and trial in the child friendly atmosphere
and providing restorative compensation to the victim of the crime.

The POCSO Act specifies a variety of offences under which an

accused can be punished. It recognizes forms of penetration other than
penile-vaginal penetration and criminalizes acts of immodesty against
children too. Offences under the act include:

2. Penetrative sexual assault: Section 3 of the POCSO Act defines

penetrative sexual assault. As per section 3 of POCSO Act, if a person
inserts his penis/object/another body part in child's
vagina/urethra/anus/mouth, or asking the child to do so with him or some
other person or manipulates any part of the body of child so as to cause
penetration into vagina, urethra, anus or any part of the body of child or
makes the child to do so with him or any other person or if he applies
mouth to the penis, vagina, anus, urethra of the child or makes the child
to do so to such person or any other person, he is said to commit
penetrative sexual assault. Section 4 lays down the punishment which
was made more stringent by the 2019 amendment.
 3

3. Aggravated penetrative sexual assault: Section 5 of the POCSO

Act lays down the cases in which penetrative sexual assault amounts to
aggravated penetrative sexual assault. For example, penetrative sexual
assaults on a child by a police officer within the vicinity of a police station,
by armed forces within the limits of their area, by a public servant, by the
staff of jails, hospitals or educational institutions, penetrative sexual
assault on a child below 12 years, committing penetrative sexual assault
on a child repeatedly, penetrative sexual assault on a child by relative,
etc., are considered aggravated penetrative sexual assault and are
punishable under Section 6 of the POCSO Act.

4. Sexual assault: Section 7 of the POCSO Act defines sexual assault

as, “Whoever, with sexual intent, touches the vagina, penis, anus or
breast of the child or makes the child touch the vagina, penis, anus or
breast of such person or any other person, or does any other act with
sexual intent which involves physical contact without penetration is said to
commit sexual assault”. Section 8 lays down the punishment for the
offence of sexual assault.

In the case of Attorney General for India Vs. Satish and Another,
2022 (1) ALT (Crl.) 188 (SC), the Hon’ble Apex Court held that “the most
important ingredient for constituting the offence of sexual assault under
Sec.7 of the Act is the sexual intent and not the skin to skin contact with
the child and whoever does any other act with sexual intent which
involves physical contact without penetration, would also be committing
the offence of sexual assault under Sec.7 of POCSO Act”.

5. Aggravated sexual assault: Section 9 of the POCSO Act lays down

the cases in which sexual assault amounts to aggravated sexual assault.
For example, sexual assaults on a child by a police officer within the
vicinity of a police station, by armed forces within the limits of their area,
by a public servant, by the staff of jails, hospitals or educational
 4

institutions, sexual assault on a child below 12 years, committing sexual

assault on a child repeatedly, sexual assault on a child by relative, etc.,
are considered aggravated sexual assault and are punishable under
Section 10 of the POCSO Act.

6. Sexual harassment: Section 11 of the POCSO Act defines sexual

harassment. It includes six cases which constitute sexual harassment of a
child.

1. First, if anyone utters any word or makes any sound or exhibits any
object with sexual intent to a child.
2. Second, if anyone makes a child exhibits his body so that it is seen
by the offender or any other person.
3. Third, if any person shows any child any form or media for
pornographic purposes.
4. Fourth, if anyone constantly watches or stalks a child directly or
online.
5. Fifth, if anyone threatens to use a real or fabricated depiction of any
part of the body of the child or the involvement of the child in a
sexual act through electronic, film or digital.
6. Sixth, if anyone entices a child for pornographic purposes.

Section 12 lays down the punishment for the offence of sexual assault
harassment.

7. Pornography: Section 13 of the POCSO Act states that anyone

who uses a child for pornographic purposes by either representing the
sexual organs of the child or using a child in real or simulated sexual acts
or representing a child indecently or obscenely in programmes or
advertisements on television or on internet, commits the offence under
this section and is liable in accordance with Sections 14 and 15 of the
POCSO Act. In the case of Fatima A.S. v. State of Kerala (2020), in a
 5

video on social media, a mother was seen being painted her naked body
above the navel by her two minor children and she alleged that the motive
of the video was to teach sex education to them. The Hon’ble Apex Court
observed in this case that, “in the initial years, what the child learns from
their mother will always have a lasting impression on their mind. It is
usually said that the mother will be the window of the child’s to the world”.
Hence the same was covered under Section 13.

8. Abetment of child sexual abuse: Section 16 of the POCSO Act

defines the abetment of the offence. The following acts constitute
abetment of offence under the POCSO Act:

 Instigating any person to commit that offence;

 Engaging in any conspiracy with one or more persons to commit

any offence when any illegal act or omission takes place in
consequence of that conspiracy;

 Aiding to commit that offence intentionally.

The punishment for the abetment of offence is specified under
Section 17 of the POCSO Act, 2012 according to which a person who
abets the commission of an offence and the offence is executed is to be
punished with the punishment that has been provided for that offence
under the POCSO Act.

9. Attempt to child sexual abuse: Section 18 enunciates that attempt

to commit any offence under the POCSO Act, 2012 is also an offence
inviting either of the two following punishments:

 Imprisonment provided for that offence for a term extending upto

one-half of the imprisonment for life, with or without fine;

 Imprisonment provided for that offence for a term extending upto

one-half of the longest term of imprisonment with or without fine.
 6

10. Mandatory reporting of child abuse cases: Sexual abuse cases

happen behind closed doors and the elders attempt to hide these
incidents due to the stigma that is attached to these crimes. Consequently,
for the proper implementation of the POCSO Act, reporting of these
incidents by the third parties who have the knowledge or apprehension of
such offences, has been made mandatory under Sections 19 to 22 of the
POCSO Act. These laws have been made on the basis of assumptions
that children are vulnerable and helpless and society has the duty to
protect the interests of the children.

11. Confidentiality of the victim’s identity: Section 23 of the POCSO

Act provides for the procedure of media and imposes the duty to maintain
the child victim’s identity unless the Special Court has allowed the
disclosure. Section 23(2) states, “no reports in any media shall disclose
the identity of a child including his name, address, photograph, family
details, school, neighbourhood and any other particulars which may lead
to the disclosure of the identity of the child”. In the landmark case of Bijoy
@ Guddu Das v. The State of West Bengal (2017), the Calcutta High
Court reiterated the law made under Section 23 and declared that any
person including a police officer shall be prosecuted if he/ she commits
such a breach.

The main objective behind provisions like Section 23 is to protect

the right to privacy of a child against whom any offence under the POCSO
Act has been committed so as to maintain the confidentiality of the
proceedings for the best interests of the child victim.

12. Child-friendly investigation and trial: Sections 24 and 26 of the

POCSO Act lay down the procedure of investigation which has been
formulated keeping in mind the needs of a child. The following points are
taken into consideration while investigating any crime under POCSO Act:
 7

i. The statement of the child is to be recorded at his/her place of

residence and generally by a woman police officer not below the rank of
Sub-Inspector.
ii. The officer who is to record the statement of the child should not
be wearing a uniform.
iii. The officer should ensure that the child does not come in contact
with the accused during the examination.
iv. A child is not to be detained in the police station at night.
v. The officer should ensure that the identity of the child is not
revealed.
vi. The statement of the child is to be recorded in the presence of a
person in whom the child has trust, for example, their parents.
vii. The statement of the child is to be recorded via audio-video
electronic means.
viii. The assistance of the translators or interpreters should be taken
wherever necessary.
13. Medical examination of Child: Section 27 of the POCSO Act lays
down that;

 The medical examination of child has to be conducted in

accordance with Section 164A of the Criminal Procedure Code,
1973.
 A medical examination of a girl is to be conducted by a woman
practitioner.
 It should be conducted in the presence of a person in whom the
child has trust, for example, his/ her parents, otherwise in the
presence of a woman nominated by the head of the medical
institution.
14. Constitution of Special Courts:

Section 28 of the POCSO Act lays down the provision regarding the
designation of special courts.

As per Section 28 of the Act, the State Government shall in

consultation with the Chief Justice of the High Court, by notification in the
 8

Official Gazette, designate for each district, a Court of Session to be a

Special Court to try the offences under the Act.

In our State, the State Government have constituted exclusive

Special Courts in all Districts and designated a Court of Session to be a
Special Court to try the offences under the Act.

Section 28 of Act says that while trying an offence under POCSO

Act, Spl. Courts shall also try an offence other than the offence referred to
in Sub-Section 1, with which accused may, under Cr.P.C. be charged at
the same trial and it also says that the special courts also have the
jurisdiction to try offences under Section 67B of Information Technology
Act, 2000. Furthermore, Section 42A of Act specifies that in case of any
inconsistency, the provisions of the POCSO Act would override the
provisions of any other law.

15. Child-friendly:

The Act provides for child-friendly pre-trial and trial procedures to

minimize the trauma felt by child victims and to eliminate the possibility of
revictimisation at the time of trial.

POCSO Act does not define the word ‘child friendly’ but JJ Act in
Section 2 (15) defines the term as ‘child friendly’ means any behaviour,
conduct, practice, process, attitude, environment or treatment that is
humane, considerate and in the best interest of the child;

“Best interest of child” is defined in Section 2 (9) of JJ Act, which

means the basis for any decision taken regarding the child, to ensure
fulfillment of his basic rights and needs, identity, social well-being and
physical, emotional and intellectual development.

The child-friendly pre-trial procedures cast duties on the police and

are to be implemented at the time of reporting of offences and recording
 9

of the child’s statement. These are given in detail in Sections 19-26 of the
Act.

The child-friendly procedures during the trial are to be followed by

the Special Courts. They aim to ensure that the child is protected from
intimidation, whether intentional or not. The child-friendly trial provisions
are detailed in Section 33 – 38 of the Act.

16. Sec.33 – Procedure and powers of Special Court:

(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
which constitute such offence, or upon a police report of such facts.

Section 33 of Act mandates that the Special Court shall create a

child friendly atmosphere while recording the evidence.

(2) The Special Public Prosecutor, or as the case may be, the
counsel appearing for the accused shall, while recording the examination-
in-chief, cross-examination or re-examination of the child, communicate
the questions to be put to the child to the Special Court which shall in turn
put those questions to the child.

(3) The Special Court may, if it considers necessary, permit

frequent breaks for the child during the trial.

(4) The Special Court shall create a child-friendly atmosphere by

allowing a family member, a guardian, a friend or a relative, in whom the
child has trust or confidence, to be present in the Court.

(5) The Special Court shall ensure that the child is not called
repeatedly to testify in the Court.

(6) The Special Court shall not permit aggressive questioning or

character assassination of the child and ensure that dignity of the child is
maintained at all times during the trial.
 10

(7) The Special Court shall ensure that the identity of the child is not
disclosed at any time during the course of investigation or trial:

However, for reasons to be recorded in writing, the Special Court

may permit such disclosure, if in its opinion such disclosure is in the
interest of the child.

Identity of the child shall include the identity of the child’s family,
school, relatives, neighbourhood or any other information by which the
identity of the child may be revealed.

17. Sec.35 -- Time limit for recording evidence of child and complete
the trial:
Section 35 of the Act mandates that the evidence of the child shall
be recorded within a period of thirty days of the Court taking cognizance
of the offence and reasons for delay, if any, shall be recorded by the Court
and the Court shall complete the trial, as far as possible, within a period
of one year from the date of taking cognizance of the offence.

18. Sec.36 – Child not to see accused at the time of testifying.

(1) The Special Court shall ensure that the child is not exposed in
any way to the accused at the time of recording of the evidence, while at
the same time ensuring that the accused is in a position to hear the
statement of the child and communicate with his advocate.
(2) For the purpose of sub-section (1), the Special Court may
record the statement of a child through video conferencing or by utilising
the single visibility mirrors or curtains or any other device.
In our State, two Special Courts are provided with such facilities –
one is in the unit of Metropolitan Sessions Judge, Hyderabad and another
is in the unit of Warangal District. We are all aware that the Special Court
at Warangal is provided with all infrastructure facilities and with a
corporate look under the aegis and stewardship of His Lordship Hon’ble
Sri Justice [Link] Rao.
 11

19. Sec.37 – Trials to be conducted in camera:

The Special Court shall try cases in camera and in the presence of
the parents or the child or any other person in whom the child has trust or
confidence:

If the Special Court is of the opinion that the child needs to be

examined at a place other than the Court, it shall proceed to issue a
commission in accordance with the provisions of Section 284 of the Code
of Criminal Procedure, 1973.

20. Sec.38 – Assistance of an interpreter or expert while recording

evidence of child.

(1) Wherever necessary, the Court may take the assistance of a

translator or interpreter having such qualifications, experience and on
payment of such fees as may be prescribed, while recording the evidence
of the child.

(2) If a child has a mental or physical disability, the Special Court

may take the assistance of a special educator or any person familiar with
the manner of communication of the child or an expert in that field, having
such qualifications, experience and on payment of such fees as may be
prescribed to record the evidence of the child.

Rule 5 (11) – In proceedings under Section 38, the Special Court

shall ascertain whether the child speaks the language of the court
adequately, and that the engagement of any interpreter, translator, special
educator, expert, support person or other person familiar with the manner
of communication of the child, who has been engaged to facilitate
communication with the child, does not involve any conflict of interest.

21. Age Proof –:

Section 34 of POCSO Act speaks about the procedure to be
followed for determination of age of child by Spl. Courts.
 12

Section 34 (1) of Act says that where any offence under this act is
committed by a child, such chaild shall be dealt with under the provisions
of Juvenile Justice (Care and Protection of Children) Act, 2015.

As per Section 94(2) of J.J. Act, 2015, Age determination shall be

made by seeking evidence by obtaining:

(i) the date of birth certificate from the school, or the matriculation
or equivalent certificate from the concerned examination Board, if
available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal

authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination by an ossification test or any other latest medical age
determination test conducted.

In the case of [Link] Prakash Vs. State Rep. by Inspector of

Police, in Criminal Appeal No.1898 of 2023, the Hon’ble Apex Court
referring to Sec.34 of POCSO Act and Sec.94 of Juvenile Justice Act,
2015, observed that “where ever the dispute with respect to age of a
person arises in the context of her or him being a victim under the
POCSO Act, the Courts have to take recourse to the steps indicated in
Sec.94 of J.J Act and that the three documents in order of which the
Juvenile Justice Act requires consideration is that the concerned court
has to determine the age by considering the following documents:

i) the date of birth certificate from the school, or matriculation or

equivalent certificate from the concerned examination board, if available;
and in the absence thereof ;
ii) the birth certificate given by a corporation or a municipal authority
or a Panchayat ;
iii) and only in the absence of (i) and (ii) above, age shall be
 13

determined by an ossification test or any other latest medical age

determination test conducted on the orders of the committee or the board.
Section 94 (2) (iii) of J.J. Act clearly indicates that the date of
birth certificate from school or matriculation or equivalent certificate by the
concerned examination board has to be firstly preferred in the absence of
which the birth certificate issued by the corporation or municipal authority
or panchayat and it is only thereafter in the absence of these such
documents, the age is to be determined through an ossification test or
any other latest medical age determination test conducted on orders of
concerned authority i.e., committee or board or Court.”

II. PRESUMPTIONS UNDER SECTIONS 29 AND 30 OF THE ACT

(Reverse burden):

1. We all know that in a criminal trial, the burden of proving everything

essential to the establishment of the charge against the accused always
rests on the prosecution, as every man is presumed to be innocent until
the contrary is proved. It means in criminal law, the fundamental principle
of “presumption of innocence” is followed where the accused is presumed
to be innocent until his guilt has been proved by the prosecution. It is the
responsibility of the prosecution to prove the guilt of the accused beyond
reasonable doubt. The Law of evidence provides the initial burden on the
prosecution to prove against the accused his crime and guilt in the court
of law. However, there are some laws which provide for the concept of
‘reverse burden’ which is opposite to the concept of presumption of
innocence in favor of accused. The legal concept of reverse burden is
when the responsibility of proving the innocence of the act is on the
accused in contradiction to the basic principle where the initial burden lies
on the prosecution. In other words, it means that the burden or onus has
been shifted to accused in criminal cases. As a general rule, the basic
principle is applied but, the law in certain circumstances provides for
 14

reverse onus on accused to prove his innocence in a particular case.

Such types of cases include cases of strict liability or where the offence is
so grave that the burden shifts on the accused to show his part of
innocence in the particular cases. Sec.29 and 30 of POCSO Act provides
for the reverse burden.

2. Section 29 of the Act says that ‘where a person is prosecuted’ for

committing or abetting or attempting to commit any offence under
sections 3, 5, 7 and section 9 of the Act, the Special Court shall presume,
that such person has committed or abetted or attempted to commit the
offence, as the case may be, unless the contrary is proved.

3. Section 30 (1) of the Act says that in any prosecution for any
offence under this Act which requires a culpable mental state on the part
of the accused, the Special Court shall presume the existence of such
mental state but it shall be a defence for the accused to prove the fact
that he had no such mental state with respect to the act charged as an
offence in that prosecution.

4. (2) For the purpose of this section, a fact is said to be proved only
when the Special Court believes it to exist beyond reasonable doubt and
not merely when its existence is established by a preponderance of
probability.
Explanation:- In this section, “culpable mental state” includes
intention, motive, knowledge of a fact and the belief in, or reason to
believe, a fact.
From a reading of 29 of the POSCSO Act, it is clear that if a person
is prosecuted for committing or abetting or attempting to commit any
offence u/sec.3, 5, 7 and 9 of the Act, the court shall presume that such
person has committed or abetted or attempted to commit the offence as
the case may be unless contrary is proved. As per Section 30 of the
POCSO Act, in a prosecution for any offence under the Act, which
 15

requires a culpable mental state on the part of accused, the court shall
presume the existence of such mental state and it shall be for accused to
prove the fact that he had no such mental state with respect to the act
charged an offence beyond reasonable doubt and not mere
preponderance of probability.

5. The objective behind the legislation is to ensure that the actual

offenders are behind the bars.

6. In view of these presumptions, the question arises that

whether the Court shall presume that the accused has committed
the offences alleged without requiring the prosecution to prove its
case?
This question is no longer res integra. In a catena of decisions, it is
held that the presumption under Section 29 of the Act is not absolute. The
statutory presumption would get activated or triggered only if the
prosecution proves the essential basic facts. Once the foundation of the
prosecution case is laid by leading legally admissible evidence, it
becomes incumbent on the accused to establish from the evidence on
record that he has not committed the offence or to show from the
circumstances of a particular case that a man of ordinary prudence would
most probably draw an inference of innocence in his favour.

In [Link] v. State of Karnataka (2020) Supreme (Kar.) 68,

Hon’ble Karnataka High Court held that the use of expression “unless the
contrary is proved” appearing in Section 29 makes it clear that the
presumption raised under this section is rebuttable. A rebuttable
presumption can be raised only when the foundational facts constituting
the offence are established by the prosecution. In a criminal trial, the
burden of proving everything essential to the establishment of the charge
against the accused always rests on the prosecution, as every man is
presumed to be innocent until the contrary is proved. In a case where an
offence is committed against a child, having regard to the very nature of
 16

the offence where it is difficult for the prosecution to prove the facts and
circumstances in which the offence had taken place, the Act has cast the
burden on the accused to prove the facts within his knowledge as it is
easier for the innocent accused to produce evidence contrary to the case
proved by the prosecution. This is called reverse burden whereby the
burden is shifted to the accused to disprove the facts established by the
prosecution. The question of discharging the reverse burden by the
accused would arise only when the initial burden cast on the prosecution
is discharged to the satisfaction of the Court. Therefore it follows that
without the proof of basic facts constituting the offence charged against
the accused, the accused cannot be called upon to disprove the case of
the prosecution. In Joy Vs. State of Kerala, it is held that “that the
presumption under Sec.29 of the Act is not absolute and presumption
would come into play only when prosecution is able to bring on record
facts that would form the found action for the presumption”. In the case of
Dallaram Vs. State of Rajasthan, reported in 2021 (0) Supreme (Raj) 65,
it is held that, “the presumptions under the Sec.29 and 30 of POCSO Act
can only be drawn when prosecution succeeds to prove that any sexual
act has been committed with victim by accused”.

7. There is a criticism that Section 29 and 30 of POCSO Act is

violative of the principle of presumption of innocence where it is on the
prosecution to prove the guilt of accused and not the accused to show his
innocence and also violating the basic concept of fair trial where the
accused is given an adequate and reasonable opportunity to prove and
defend himself.

8. The Constitutional validity of Sections 29 & 30 of the POCSO Act

was challenged in the case of Justin @ Renjith Vs. Union of India,
where the accused was prosecuted under Sections 3, 7, 9 and 5 of
POCSO Act. He challenged the sections 29 and 30 and contended these
 17

sections as unconstitutional and violative of Articles 14, 19, 20(3) and

Article 21 guaranteed by the Constitution of India. It was contended that
since there is no provision for reverse burden in sexual offences against
adults, the same in cases of sexual offences against children is
discriminatory and violative of article 14 right to equality. It was also
contended that Sec.29 and 30 of POCSO Act are operative against the
right to remain silent enshrined under article 20(3) by imposing the
burden to prove innocence. It was also contended that Sec.29 and 30 of
POCSO Act took away right to be presumed innocent until proven guilty
as per article 21.
9. While dealing with the question of constitutionality, the Court
observed the case of Nikesh Tara Chand Shah Vs. Union of India,
where it was held by the Hon’ble Supreme Court that since the aim of
POCSO Act was to fulfill the provisions mandated under the Article 15(3)
of Constitution, hence challenging the provisions that it violates the Right
to equality as given under Article 14 is unreasonable and Court also
observed the case of Noor Aga Vs. State of Punjab & Ors, where it was
held that Article 20(3) is violated only when the accused is forced to testify
against himself whereas in cross examination, he is only asked questions
and therefore, the provisions cannot be said to violate the Article 20(3) of
the Constitution.
10. After due consideration to facts and all the related case laws, the
Court concluded that the Sections 29 & 30 of the POCSO Act are not
unconstitutional or illegal observing that;
(1) Section 29 & 30 of POCSO Act are based on intelligible
differentia treating the child victims as a class by itself and hence are not
violative of Article 14. Also, POCSO Act was enacted following the
mandate of Article 15(3) which allows the State to make special
provisions for women and children, and therefore, cannot be challenged
on grounds of Article 14.
 18

(2) The Court also quashed the argument for the necessity of mens
rea being an essential element of every offence. The Court stated that in
certain acts, mens rea is implied by the very nature of the act. The same
is explicitly exhibited in sexual acts, and need not be proved separately.

(3) The right under Article 20(3) could be invoked only when the
accused is subjected to duress to give evidence against himself. The
term ‘compulsion’ in Article 20(3) refers to duress only as also held by the
Supreme Court in the case of State of Bombay Vs. Kathi Kalu Oghadu.

(4) Sections 29 and 30 of POCSO Act do not absolve the burden of

prosecution to establish foundational facts i.e., that the victim is a child;
that the alleged incident has taken place; medical evidence to support
physical injury, if caused etc. and the reverse burden kicks in only post
the establishment of such facts. Therefore, the right under Article 21 is
not per se violated. “The insistence on establishment of foundational
facts by prosecution acts as a safety guard against misapplication of
statutory provisions”.

(5) The Court added that the reverse burden is justifiable on the
ground of predominant public interest. Limited burden on accused to
establish specific facts that are exclusively within his/her knowledge are
not rare in the Indian Criminal Law.

III. Compensation:

1. Much confusion prevails regarding the role of Special Courts in

victim compensation under the POCSO Act. The question that has
caused much grief to children is whether the Special Court is to merely
recommend the payment of compensation to the State Government or
should it determine the amount of compensation?

2. Though POCSO Act is a penal statute, it is not confined to

convicting and sentencing the wrong doer only. It provides the scheme for
 19

rehabilitation, compensation, etc., also to the victims. Utmost care has to

be taken by all agencies specially Special Courts for uplifting the victim
from traumatic situation. The victim must be adequately compensated at
an appropriate stage. Compensation is a must to a sufferer of the crime.

3. Section 33 (8) says in appropriate cases, the Special Court may, in

addition to the punishment, direct payment of such compensation as may
be prescribed to the child for any physical or mental trauma caused to
him or for immediate rehabilitation of such child.

4. Rule 9 of POCSO Rules:

[Link] - (1) The Special Court may, in appropriate cases,
on its own or on an application filed by or on behalf of the child, pass an
order for interim compensation to meet the immediate needs of the child
for relief or rehabilitation at any stage after registration of the First
Information Report. Such interim compensation paid to the child shall be
adjusted against the final compensation, if any.
(2) The Special Court may, on its own or on an application filed by
or on behalf of the victim, recommend the award of compensation where
the accused is convicted, or where the case ends in acquittal or discharge,
or the accused is not traced or identified, and in the opinion of the Special
Court the child has suffered loss or injury as a result of that offence.
(3) Where the Special Court, under sub-section (8) of section 33 of
the Act read with subsections (2) and (3) of section 357A of the Code of
Criminal Procedure, makes a direction for the award of compensation to
the victim, it shall take into account all relevant factors relating to the loss
or injury caused to the victim, including the following:-
(i) type of abuse, gravity of the offence and the severity of the
mental or physical harm or injury suffered by the child;
 20

(ii) the expenditure incurred or likely to be incurred on his medical

treatment for physical and/or mental health;
(iii) loss of educational opportunity as a consequence of the offence,
including absence from school due to mental trauma, bodily injury,
medical treatment, investigation and trial of the offence, or any other
reason;
(iv) loss of employment as a result of the offence, including
absence from place of employment due to mental trauma, bodily injury,
medical treatment, investigation and trial of the offence, or any other
reason;
(v) the relationship of the child to the offender, if any;
(vi) whether the abuse was a single isolated incidence or whether
the abuse took place over a period of time;
(vii) whether the child became pregnant as a result of the offence;
(viii) whether the child contracted a sexually transmitted disease
(STD) as a result of the offence;
(ix) whether the child contracted human immunodeficiency virus
(HIV) as a result of the offence;
(x) any disability suffered by the child as a result of the offence;
(xi) financial condition of the child against whom the offence has
been committed so as to determine his need for rehabilitation;
(xii) any other factor that the Special Court may consider to be
relevant.
(4) The compensation awarded by the Special Court is to be paid
by the State Government from the Victims Compensation Fund or other
scheme or fund established by it for the purposes of compensating and
rehabilitating victims under section 357A of the Code of Criminal
Procedure or any other laws for the time being in force, or, where such
fund or scheme does not exist, by the State Government.
(5) The State Government shall pay the compensation ordered by
 21

the Special Court within 30 days of receipt of such order.

(6) Nothing in these rules shall prevent a child or his parent or guardian or
any other person in whom the child has trust and confidence from
submitting an application for seeking relief under any other rules or
scheme of the Central Government or State Government.

5. The National Legal Services Authority framed a scheme called

“Compensation Scheme for Women Victims/Survivors of Sexual
Assault/other Crimes, 2018.

But, in the scheme, it is made clear that the said scheme do not
apply to minor victims under POCSO Act, 2012 insofar as their
compensation issues are to be dealt with only the Special Courts under
Section 33 (8) of the Act and Rule 7 (now Rule 9) of the POCSO Rules.

The words ‘direct payment of such compensation’ used in Section

33 (8) of the Act signify that the Special Court shall fix the quantum and
direct to pay. So, by following the rules contained in Section 33 (8) of the
Act and Rules 9(1) and 9(2) of the Rules, the Special Court has to fix the
quantum and direct to pay compensation to the victim.

The approach of the Special Judge has to be very sensitive to see

that not only the wrong doer is punished with serious punishment upon
his guilt being proved but the victim is adequately compensated to get
into main stream of society.

There is no limit specified in the POCSO Act or Rules on the

amount of compensation that the Special Court may order. The quantum
of compensation is not specified in the POCSO Act and it is based on the
discretion of the judge deciding the matter. The POCSO Rules provides
that while deciding the quantum of compensation, the judge must take
into consideration the type, nature and severity of abuse, the extent of
physical and mental harm caused to the child, expenditure incurred for
medical treatment for physical and/or mental health, financial condition of
 22

the child, etc.

In Tekan alias Tekram v. State of Madhya Pradesh (2016) 4 SCC

461 = AIR 2016 SC 817, which arose out of an alleged sexual intercourse
committed upon a Blind and Illiterate Girl by the accused under promise
of marriage, the Hon’ble Supreme Court upheld the conviction of the
accused and proceeded to discuss compensation for the victim. The
Hon’ble Supreme Court ordered that all the States must endeavour to
follow a uniform scheme in the manner framed by the State of Goa which
permits compensation of up to Rs.10,00,000/- for rape victims with
disability. Since there were none to take care of the victim and she is
living alone in her village, the Hon’ble Supreme Court directed the
respondent-State to pay Rs.8,000/- per month till her life time, treating the
same to be an interest fetched on a fixed deposit of Rs.10,00,000/-.

6. Compensation to male child victims:

Children are defined as persons below the age of 18 years – Act is

gender neutral i.e., it recognizes that the victims and the perpetrators of
the offence can be male, female, or third gender.

But, the aspect of award of compensation to the male child victims

has been overlooked by most legislative schemes. However, it was
addressed by the Hon’ble Delhi High Court in the Minor through Guardian
Zareen v. State – WP (Crl.) 798/2015 dated 21.03.2016. The Hon’ble
High Court addressed the issue of discrimination of the male child victim
as well as their right to compensation and awarded compensation to the
male child victim.

7. Compensation to the child born out of rape:

The Hon’ble Delhi High Court in Gaya Prasad Pal @ Mukesh v.

State (2017(1) RCR (Criminal) 233 held that the child born out of rape is
entitled to compensation independently of his mother.
 23

8. Interim compensation – Multiple applications:

The Hon’ble Delhi High Court in Mother Minor Victim No.1 & 2 Vs.
State and Others (MANU/DE/1240/2020 – WP (Crl.) 3244 of 2019
decided on 15.6.2020) held that though Rules do not indicate that multiple
applications for interim compensation can be made; nonetheless, since
the said provision for compensation is a beneficial provision, the same
must be considered liberally.

9. Grant of compensation after disposal of case:

Rule 9(2) says, the Special Court may, on its own or on an

application filed by or on behalf of the victim, recommend the award of
compensation where the accused is convicted, or where the case ends in
acquittal or discharge, or the accused is not traced or identified, and in
the opinion of the Special Court the child has suffered loss or injury as a
result of that offence.

In number of cases where conviction is recorded, I have granted

final compensation to victim taking into consideration of gravity of offence
committed on them and physical pain and mental trauma suffered by
them and also taking into consideration of social and financial status of
victim’s family and the Hon’ble District Legal Services Authority accepted
the said order and paid the compensation to the victims.

The objective behind providing compensation is the relief and

rehabilitation of the child victims and the reparation to the victims when
the state has failed to protect the individuals from crimes.

Conclusion:

The POCSO Act aims to provide a legal framework to protect

children from sexual abuse and exploitation by providing stringent
punishments for the sexual offences against children. Despite its well
intentioned objectives, the POCSO Act has faced criticism on several
 24

fronts. Even after more than 12 years since the Protection of Children
from Sexual Offences Act, 2012, the proper implementation of the act has
not taken place. The first and most important task of this legislation was to
expedite the resolution of cases involving sexual offenses against children;
it was mandated that a case be resolved within a year of the offense’s
cognizance, but in most Indian states, the time taken to resolve the cases
is more than double of what is mandated under the act. There’s no doubt
that there has been considerable improvement, but we as a society
should strive for better. The pendency of cases is a problem that arises
due to the huge population of India, so it should be ensured that more
special courts are set up, more judges are appointed, and more support
persons are engaged so that the cases are resolved quickly. Also, the
courts of India and the government should take relevant measures to
avoid misuse of the law, as it has been noted that many innocent people
are being charged under this act even when there was a consensual
relationship between the couple. If an innocent is made to spend even a
day in jail, it is a failure not only for the authorities, but for the society at
large.

Preparation by:

Smt. [Link] Lakshmi.

Special Sessions Judge,
designated for speedy trial of
Offences under the POCSO Act,
Ananthapuramu.