| Issue 27 Vol II, November 15, 2006 | Archive |
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Where Rules Travel Beyond the Scope of the Law I am Parliament's
draftsman
The Rules, as per the settled law, have to be in conformity with the provisions of the Act. These cannot travel beyond the limits of the Act nor can the Rules provide which the Act itself does not contemplate. The Rules are framed for the purpose of giving effect to the provisions of the Act. But the protection of women from domestic violence Rules, 2006, framed in exercise of the powers conferred by Section 37 of the Act, travel somewhat beyond the scope of the Act. Section 31 of the Act provides that a breach of the 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 extent to Rs.20,000/- or with both. The section also provides that the Magistrate may also frame charges under Section 498-A of the Indian Penal Code or any other provisions of that Code or the Dowry Prohibition Act,1961, as the case may be, if the facts disclose the commission of an offence under those provisions. Section 32 provides that "notwithstanding anything contained in the Code of Criminal Procedure, 1973 the offence under Sub-Section (1) of Section 31 shall be cognizable and non-bailable." The Code of Criminal Procedure provides the procedure for trial of criminal cases which have been divided into two categories:- Warrant case and Summons case; A warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Summons case means a case relating to an offence, and not being a warrant case. As such, an offence u/s 31 being an offence punishable with a sentence less than two years is a summons case and to be tried by a procedure meant for trial of summons cases. The third category of cases is that of offences to be tried summarily. Section 260 of the Code of Criminal Procedure provides for the procedure for summary trials, empowering the Chief Judicial Magistrate, any Metropolitan Magistrate, and any Magistrate of the First Class specially empowered by the High Court. The offences are punishable with sentence of less than two years. The Code of Criminal Procedure further provides that in the trial of cases under the chapter meant for summary trials, the procedure specified in the Code for the trial of summons cases shall be followed subject to the condition that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this chapter. The record in summary trials is to be maintained not in the manner provided for trial of warrant cases or summons cases but by way of recording particulars such as serial number of the case, date of commission of the offence, the date of the report of complaint, the name of the complainant, the name, parentage and residence of the accused, the offence complained of, the plea of the accused, the findings, the sentence for other final order, and the date on which the proceedings are terminated. The whole of the evidence in such cases tried summarily to which the accused does not plead guilty, the record of the substance of the evidence and a judgment containing the brief statement of reasons is to be recorded. It does not contemplate of verbatim record of the statement rather its substance is to be recorded and a punishment for not more than three months can be awarded. The Rules framed under the Protection of Women from Domestic Violence provide that an offence u/s 31 of the Act regarding the breach of the protection order is to be tried summarily. The Rule 15(6) provides when charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure, and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973. The above Rule seems to be traveling beyond the scope of the Act. In Section 32, an non-obstante clause has been added with regard to the offence u/s 31 to be cognizable and non-bailable even if it is not so mentioned or is otherwise mentioned in the Code of Criminal Procedure but regarding procedure to be adopted for trial of the offence the Act does not provide that it would be tried according to the procedure meant for summary trials. Whereas Rule 15(6) provides that offence under Section 31 shall be tried summarily. The above provision is likely to have two deterrent effects:- (i) if the offence is tried summarily, according to the Code of Criminal Procedure Section 262, punishment for more than three months cannot be awarded, whereas Section 31 contemplates punishment for one year and a fine of Rs.20,000/-; (ii) The Rules framed under the provisions of the Act are to be in consonance with the provisions of the Act. Besides this the Rules being subordinate legislation cannot have the effect of overriding the provisions of the Act under which these are framed or any other Act unless provided in the Act itself by a non-obstante clause or by specific repeal, abrogation, amendment or modification. The Rules need a proper scanning and rectification before the issue is raked up in the High Court or the Supreme Court of India. When Rules travel beyond the scope of the Act or abrogate another law, these defeat the basic purpose of the Act. [jogindersingh_toor@yahoo.com Mobile No.98151-33530 ] |
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THIS
squarely applies to the Protection of Women from Domestic Violence Act, 2005
particularly the Rules framed under the Act in 2006. The Act is enforceable
from October 17, 2006.